Prohibited Subjects of Bargaining: What they Mean, what they don’t, and how to use them

1. MICHIGAN NEGOTIATORS ASSOCIATION Fall Conference 2013 Download this presentation now at www.LuskAlbertson.com/mna2013 Prohibited Subjects of Bargaining:What they Mean, what they don’t, and how to use them Robert T. Schindler Lusk & Albertson, PLC RSchindler@LuskAlbertson.com (248) 988-5696 Follow us on Twitter: @LuskAlbertson October 9, 2013 Summit Village, Shanty Creek Bellaire, Michigan

2. On May 2, 1994, Governor John Engler signed into law 1994 PA 112, which amended previous provisions of the Public Employment Relations Act (PERA), MCL 423.201, et seq., and added new provisions. • PA 112 added to Section 15 of PERA, MCL 423.215, were subsections 2, 3 and 4, MCL 423.215(2), (3) and (4), which provide in relevant part: (2) [A] public school employer has the responsibility, authority, and right to manage and direct on behalf of the public the operations and activities of the public schools under its control. Background – PA 112

3. (3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects: * * * (4) . . . the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for purposes of this act, are within the sole authority of the public school employer to decide. Background – PA 112

4. Although the term “prohibited subjects” of bargaining is not specifically defined by the Legislature, the courts have construed the term to be synonymous with the phrase “illegal subject” of collective bargaining as such is understood within the accepted lexicon of labor relations law. Michigan State AFL-CIO v MERC, 212 Mich App 472, 486; 538 NW2d 433, 441 (1995). Court Interpretations – PA 112

5. “Collective bargaining as a process requires both parties to confer in good faith - - to listen to each other. MCL 423.215(1); MSA 17.455(15)(1). In these subsections, the Legislature simply has removed the statutory requirement that public school employers listen to their employees and instructed the employers not to collectively bargain with regard to these subjects. In effect, the Legislature simply classified the disputed subjects as illegal subjects of collective bargaining.” AFL-CIO v MERC

6. Either party to negotiations may refuse to discuss a prohibited subject (although may voluntarily do so). Public employer may act unilaterally with respect to any prohibited subject without bargaining to agreement or impasse. Neither party may maintain to impasse a proposal pertaining to a prohibited subject. Any provision in a collective bargaining agreement covering a prohibited subject is not enforceable. Either party may refuse to continue or carry over within a new contract any existing provision pertaining to a prohibited subject. A party may not insist on the inclusion of a prohibited subject in bargaining once the other side has notified it will not bargain over it. Michigan State AFL-CIO v MERC, 453 Mich 362 at n 9, 380 (1995); Troy School District (Operating Engineers), 21 MPER 37 (2008); Wyoming Public Schools, MERC Case No. C01 L-234 (unpublished decision on motion, October 15, 2002); Calhoun Intermediate Educ Assn, MERC Case No CU12 B-009 (2012) (Decision of ALJ currently pending exceptions before the MERC). Significance of Prohibited Subjects

7. Significance of the lack of a prohibited subject • The lack of a prohibited subject, or the inapplicability of one, does not mean that the same goals cannot be accomplished. Rather, it means that the topic must be negotiated. • Example – subcontracting of educational support Significance of Prohibited subjects

8. Let’s take a close look What are the prohibited subjects?

9. Who is or will be the policyholder of an employee group insurance benefit. • The MESSA provision • Must negotiate who will provide or underwright, levels of benefits, cost structure, etc. • Establishment of the starting day for the school year and of the amount of pupil contact time required • Must comply with law MESSA Provision/School Calendar

10. The composition of school improvement committees established under section 1277 of the revised school code • Accreditation of a school within a District • The decision of whether or not to provide or allowinterdistrictorintradistrict open enrollment opportunity in a school district or the selection of grade levels or schools in which to allow an open enrollment opportunity. Improvement committee/Open Enrollment

11. The decision of whether or not to act as an authorizing body to grant a contract to organize and operate 1 or more public school academies. The use of volunteers in providing services at its schools. PSA’s and volunteers

12. The decision of whether or not to contract with a third party for 1 or more noninstructional support services; or the procedures for obtaining the contract for noninstructional support services other than bidding described in this subdivision; or the identity of the third party; or the impact of the contract for noninstructional support services on individual employees or the bargaining unit. However, this subdivision applies only if the bargaining unit that is providing the noninstructional support services is given an opportunity to bid on the contract for the noninstructional support services on an equal basis as other bidders. Subcontracting noninstructional support

13. What is “noninstructional support” • Yeas – Custodians, Grounds, Transportation, Cafeteria, Secretaries, Hall Monitors • Nays – Paraprofessionals, Occupational Therapists and Physical Therapists • “Instructional” • Must be some imparting of knowledge, or wisdom in order for a classification to qualify as instructional (or not non-instructional) Subcontracting noninstructional support

14. Giving the bargaining unit the opportunity to bid on the contract on an equal basis as other bidders • If not, subcontracting loses PSB status • Must give the union a chance to submit a bid • Equal basis as other bidders • Seeking to bargain is not a bid Subcontracting noninstructional support

15. Decisions concerning use and staffing of experimental or pilot programs and decisions concerning use of technology to deliver educational programs and services and staffing to provide that technology, or the impact of those decisions on individual employees or the bargaining unit. Experimental/pilot Program or Use of Technology

16. Experimental or Pilot • Not defined by Legislature • New to school district • Limited in duration • Technology • Includes use of online classes • PSB covers both the usage and the staffing • Need not bargain over impact Experimental/pilot Program or Use of Technology

17. Any decision made regarding teacher placement or the impact thereof • Initial assignment or reassignment • Voluntary or involuntary transfers • Does not include placement of administrators. Teacher Placement

18. Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position, as provided under section 1248 of the revised school code, . . . any decision made by the public school employer pursuant to those policies, or the impact of those decisions on an individual employee or the bargaining unit. Personnel Decisions

19. Includes layoff, recall, or hiring after a layoff • Must have policy that complies with section 1248 of the RSC • May not allow seniority or tenure status to be primary or determining factor • Must use factors described in 1248 • July 19, 2011, grandfathering date Personnel Decisions

20. Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer's performance evaluation system adopted under section 1249 of the revised school code, or under the TTA, decisions concerning the content of a performance evaluation of an employee under those provisions of law, or the impact of those decisions on an individual employee or the bargaining unit. Performance Evaluation system

21. Applies to both teachers and administrators – and only teachers and administrators Prohibits both the system and individual application Impact bargaining prohibited July 19, 2011, grandfathering date Performance Evaluation System

22. Decisions about the format, timing, or number of classroom observations conducted for the purposes of section 3a of article II of 1937 (Ex Sess) PA 4, MCL38.83a (probationary teachers), decisions concerning the classroom observation of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. Performance Evaluation System

23. Observation process for probationary teachers specifically prohibited • Observation process would already likely be prohibited through the section 1249 evaluation system • “Except as provided in this subdivision, the manner in which a classroom observation is conducted shall be prescribed in the evaluation tool for teachers described in subdivision (d).” MCL 380.1249(2)(c)(i). Performance Evaluation system

24. For public employees whose employment is regulated by the TTA, decisions about the development, content, standards, procedures, adoption, and implementation of apolicy regarding discharge or discipline of an employee, decisions concerning the discharge or discipline of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. For public employees whose employment is regulated by the TTA, a public school employer shall not adopt, implement, or maintain a policy for discharge or discipline of an employee that includes a standard for discharge or discipline that is different than the arbitrary and capricious standard provided under section 1 of article IV of the TTA. Teacher discipline or discharge

25. Covers probationary and tenured teachers Does not include those in your bargaining unit that do not have (or need) certification Board must adopt policy No grandfathering clause Teacher discipline or discharge

26. Arbitrary or capricious • “A decision is arbitrary and capricious if it is based on whim or caprice and not on considered, principled reasoning. . . . If there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious. If a controlling board overlooked important evidence or erred in appreciating the significance of evidence, its decision may be determined to be arbitrary or capricious.” Cona v Avondale Sch Dist, STC # 11-61 (2012), pending before MCOA. Teacher Discipline or discharge

27. Decisions about the development, content, standards, procedures, adoption, and implementation of the method of compensation required under section 1250 of the revised school code, decisions about how an employee performance evaluation is used to determine performance-based compensation under section 1250 of the revised school code, decisions concerning the performance-based compensation of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. Performance based compensation

28. Rarely used to the extent it could be System, application to individuals, and impact are all prohibited January 4, 2010, Grandfathering date Performance based compensation

29. Decisions about the development, format, content, and procedures of the notification to parents and legal guardians required under section 1249a of the revised school code. Ineffective teacher notification

30. Any requirement that would violate section 10(3) of the PERA. • Section 10(3) states that “an individual shall not be required as a condition of obtaining or continuing public employment to do any of the following: (a) Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization or bargaining representative. (b) Become or remain a member of a labor organization or bargaining representative. (c) Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value to a labor organization or bargaining representative.” Freedom to work

31. Avoid bargaining PSBs • Audit your CBA looking for PSBs • Removing prohibited language from your CBA • Notify union identifying specific language to be removed • Discussion, but no negotiation, regarding prohibited subject language • Prepare “entire contract proposal” devoid of prohibited subject language from existing/prior contract • After reaching tentative agreement, publish/print new CBA with prohibited subject language removed. How to respond to a PSB in your cba

32. Why remove prohibited subject language? • Pros: 1) clarity, 2) avoids automatic reinstatement should political pendulum swing, 3) avoids questions regarding authority of arbitrator, and 4) consistent with law. • Cons: Union doesn’t like. How to respond to a psb in your cba

33. Questions?