LEGAL ASPECTS OF WORKING WITHOUT A CONTRACT

1. LEGAL ASPECTS OF WORKING WITHOUT A CONTRACT 2008 Bargaining, Political Action & PR Conference Session 102 MEA Staff Attorneys

2. AGENDA • STATUS QUO • CONTRACT PROVISIONS THAT CONTINUE & EXPIRE • STEP INCREASES • SCHOOL CALENDAR ISSUES • GRIEVANCE & ARBITRATION ISSUES • CONTINUED BARGAINING & JOB ACTIONS

3. STATUS QUO • GENERAL RULE • When a labor agreement expires, many of its provisions continue after expiration • US SUPREME COURT • Employer has duty to maintain existing mandatory employment conditions until agreement or impasse is reached

4. MANDATORY TOPICS • Includes topics that fall within the phrase “wages, hours and other terms and conditions of employment” • MERC and the Courts broadly interpret mandatory bargaining topics

5. Wages Insurance Evaluation Procedure Grievance/Arbitration Just Cause School Calendar Layoff/Recall Seniority Safety Issues Drug/Alcohol Testing Transfer of bargaining unit work Changes in Number of Class Periods Discipline Procedures Overload Hours Step and COLA Increases EXAMPLES OF MANDATORY TOPICS

6. MANDATORY TOPICS THAT CONTINUE WHEN CBA EXPIRES • Pay • Fringe Benefits (status quo may change) • Sick Leave • Coordination of Benefits • Hours of Hourly Employees • Salary Grid/Step Increase • COLA

7. MANDATORY TOPICS THAT EXPIRE WITH CBA • THESE INURE TO BENEFIT OF UNION • Dues Deduction • Released Time for Union Officers • No Strike Clause • Waiver of Bargaining Rights • Duty to Arbitrate

8. CONTRACT EXTENSIONS • BARGAIN CONTRACT EXTENSION • Make it for a specific period of time • 30 days, etc • BARGAIN AUTOMATIC CONTRACT EXTENSION • Negotiate language automatically extending the labor agreement if neither party provides timely notice of its intent to amend, modify or terminate the agreement • If no timely action is taken, MERC will likely find that the contract has been extended for an additional year

9. Step Increases • Do they have to pay, or can they just claim poverty?

10. Step Increases • MERC and the courts say they have to pay! • Detroit Public Schools, 1984 MERC Lab Op 579 • MESPA v Jackson Community College, 187 Mich App 708 (1991)

11. Step Increases • They think they can claim poverty • Wayne Co (Attorney Unit), 8 MPER ¶26049 (1995) • Ida Public Schools, 9 MPER ¶27062 (1996)

12. Step Increases • Financial Exigency is no excuse! • They must continue to bargain with us • Single Issue Impasse • Can implement single element of last best offer

13. Step Increases • What you can do • Avoid impasse! • Bargain early and often • Dispute claims of financial crisis • Request financial records and get an analysis • Continue bargaining over non-economic issues • Remain flexible on wages • Re-Openers • Conditional increases/freezes based on resolution of unknowns (enrollment, foundation grant, etc)

14. School Calendar Issues • Oh No – It’s almost Labor Day and we don’t have a calendar! When does school start? When do we report? Can the district impose a calendar?

15. School Calendar Issues • School calendar is a mandatory topic of bargaining, so . . . • STATUS QUO applies, but. . . • Legislature and MERC have modified status quo when it comes to school calendar.

16. School Calendar Issues • Legislative Mandates • PA 112 – no bargaining over “starting day” • 2000 – no school on Friday before Labor Day • 2005 – no school at all before Labor Day • PA 101 (2007) – common calendar w/ ISD for winter and spring breaks • ID specific dates for next 5 years • Exception- current CBA sets other dates • But must go to common calendar when current CBA expires

17. School Calendar Issues • MERC decisions • Imposition of calendar OK if sufficient bargaining and normal start date near • Business necessity • Imposing same schedule as prior years is seen as effort to maintain status quo • District must continue to bargain, or at least show willingness to do so

18. School Calendar Issues • MERC decisions – limits on school boards • Can’t impose too early - no business necessity • Board must bargain calendar with each bargaining unit – but no ULP if it agrees with one unit before another • Financial crisis does not justify imposition of calendar

19. GRIEVANCES & ARBITRATION • General Rule: Events arising before contract expiration are arbitrable even if grievance filed after expiration. • Events occurring after contract expiration are grievable and Employer must process grievance in good faith.However, they are not arbitrable unless the employer does not object or the subject meets one of the exceptions.

20. ARBITRATION AVAILABLEIF • Exceptions to General Rule that ER not required to arbitrate after contract expires • Vested & Accrued Rights – sick leave, pensions, insurance, seniority. • Contractual Obligations – “grievances shall be processed through arbitration even after the expiration of this agreement and even if the parties have reached impasse.”

21. ARBITRATION AVAILABLE IF • Evergreen Clause – ‘if neither party gives written notice of desire to reopen CBA 3 months before expiration, it renews for one year.’ • Full Retroactivity of Successor Agreement – ‘the tentative agreement is fully retroactive.’ May be helpful to place grievances on hold until TA. • Addition of Vested Rights – ‘a probationary employee has no vested right to just cause.’

22. ARBITRATION AVAILABLE IF • Post expiration agreement to arbitrate – often cheaper to arbitrate voluntarily than face law suits and/or ULP. • Implied-in-fact-contract – a past practice or board policy may give rise to an implied contract that exists after expiration of CBA.

23. INITIAL APPROACH • Ask for extension of time to file grievance in hope that new contract obtained & fully retroactive. • File and proceed as usual – make ER raise the defense. Some grievance procedures require defenses to be raised by last step before arbitration. • Negotiate good language during bargaining. • Condition settlement on resolving the grievance especially if it is over discharge of employee.

24. OPTIONS WHEN ER OBJECTS • File ULP • ER has failed to maintain status quo – until impasse • Circuit Court Action: • Breach of contract or implied in fact contract • Only arbitration not available, but contract is still enforceable. • Federal District CourtAction: • law suit for denial of 14th Amendment Due Process under Loudermill. Denial of meaningful post discharge hearing that would have been available with arbitration.

25. TWO ELEMENTS OF A STRIKE • Some failure or refusal to perform all or part of the duties of employment • For the purpose of inducing a change in conditions of employment or compensation

26. “Strike” = Partial Withholding of Services • Refusing to perform extra-duty work, even if voluntarily assumed, is a “strike” when: • the work is routinely performed by the bargaining unit • has become an accepted function of the job, and • the refusal is for the purpose of influencing a change in wages and working conditions

27. “Strike” Includes ULP Job Actions • Before PA 112, ULP job actions enjoyed some legal protection • MERC could, at its discretion order reinstatement of dismissed employees if the "strike" was precipitated by an employer's ULP.) • Lamphere Schools v Federation of Teachers, 400 Mich 104, 117 (1977) • Under PA 112, an unfair labor practice strike is illegal for public school employees only.

28. What Happens to Employees on “Strike” • Section 2a of PERA • May be fined • Employer must file notice with MERC • Notice must be served on union and members • Union and employees have ten days to answer • Hearings conducted quickly

29. What Happens to Employees on “Strike” • Section 2a of PERA • Decision must be issued within 60 days of strike notice • Penalty: one day of pay for each full or partial day employee is on strike • Fines sent to state school aid fund, not school district!

30. What Happens to Employees on “Strike” • Section 6 of PERA • Once employer disciplines or fires public employee for engaging in strike, employee is entitled to a hearing • Request must be filed in writing with school board within ten days after employee’s regular pay has stopped • School Board must render decision within 10 days after conclusion of hearing • Decision may be appealed to local circuit court • Standard of review is limited

31. Duty to Bargain Suspended • MERC has found that engaging in unlawful strike activity relieves the employer of the duty to bargain during the pendency of the strike. Melvindale-Northern Allen Park Schools, 1992 MERC Lab Op 400.