Bargaining and the Law: Legal Basic for Local Leaders

Bargaining and the Law:Legal Basic for Local Leaders Jeff Murphy Doug Wilcox Dan Zarimba

PERA & MERC Topics of Bargaining Union Access to Information When Contracts Expire ULPs Impasse & Implementation Mediation & Factfinding Job Actions (Strikes) Duty of Fair Representation AGENDA

PERA & MERC Doug Wilcox MEA Staff Attorney

PERA OVERVIEW Labor Mediation Board • 1939 Statute • Jurisdiction over private employers not covered by NLRA Hutchinson Act • 1947 Statute • Regulated labor relations between public employers and employees • Prohibited striking • Any employee who violated Act abandoned job and terminated employment

PERA OVERVIEW Hutchinson Act • No mediation/fact-finding • No ULPs • No cause of action in court • True "take-it-or-leave-it" relationship Labor

PERA OVERVIEW PERA • PA 379 of 1965 • Amended Hutchinson Act • Extensive public employee involvement its passage • Signed by Republican Governor George Romney

PERA OVERVIEW PERA • Strikes still prohibited • No longer automatic discharge • Section 6 and Review by Circuit Court • Right to bargain collectively over wages, hours and other terms and conditions of employment • ULPs defined NOTE: ULPs against unions added in 1973

PERA OVERVIEW PA112 of 1994 • Expanded definition of strike • Created subclass: public school employees • Fines for strikes • Prohibits job actions taken in response to employer ULPs • Seeks to limit role of MABOs in contract ratification • Extensive list of prohibited (illegal) bargaining subjects

MERC • MERC is part of the Department of Labor and Economic Growth • MERC Jurisdiction: all public employers except civil service employees and Michigan Supreme Court employees

MERC ENFORCES THREE LAWS • Labor Relations and Mediation Act (LMA) • Public Employment Relations Act (PERA) • Compulsory Arbitration Act (Act 312)

MERC FUNCTIONS • Appoints mediators, arbitrators and fact finders • Conducts union representation elections • Determines appropriate bargaining units • Adjudicates ULP cases

THE GRANHOLM COMMISSIONERS Christine A. Derdarian (D) • She replaced Nora Lynch Nino Green (D) Eugene Lumberg (R) • Appointed by Governor for three-year staggered terms

ADMINISTRATIVELAW JUDGES Three ALJs • David Peltz • Doyle O’Connor • Julia Stern Cases are very backed up!

Mandatory, Permissive, and Prohibited Topics Jeff Murphy MEA Staff Attorney

Mandatory Bargaining Topics • Mandatory Topics • The duty to bargain in good faith under Section 15 of PERA extends to those subjects found within the phrase “wages, hours and other terms and conditions of employment” • No unilateral action allowed on mandatory topics absent impasse

Wages Insurance coverage (including carrier) Evaluation procedures Grievance/ arbitration procedure Just cause School calendar Layoff/recall Seniority (for bargaining unit members) Safety issues Working conditions for accreted employees Transfer of exclusive bargaining unit work Change in the number of class periods per day Residency requirement Disciplinary procedures Pensions Overload hours Mandatory Bargaining Topics

Permissive Bargaining Topics • Those topics which fall outside the scope of wages, hours and other terms and conditions of employment, e.g., • Hiring qualifications • Administrative seniority in unit • Size of work force • Recognition clause • Negotiations ground rules • “Zipper clause”

Maintenance of standards clause Wages of substitutes not in unit Availability of overtime Decision to layoff workers Existing benefits of retirees Outside employment Program cuts Aggregate overload hours More Permissive orVoluntary Subjects

Prohibited Subjects of Bargaining (Traditional) • Neither union nor management can demand to bargain provisions that take away a member's rights under the law, such as: • the right to be free from discrimination and harassment • the right to minimum wage and overtime • the right to be free from discrimination because of union activity

PA 112 and Prohibited Subjects • The policyholder of an employee group insurance benefit. (Section 15(3)(a)). Does not prohibit bargaining on the identity of the health care provider, carrier, or type or level of benefits. • The starting day of the school year and the amount of pupil contact time required to receive full state aid.

PA 112 and Prohibited Subjects • The decision whether to subcontract or outsource non-instructional support services, the procedures for obtaining the contract with a third party, the identity of the third party, or the impact of the outsourcing on individual employees or the bargaining unit. • The use of volunteers in providing services.

PA 112 and Prohibited Subjects • Decisions concerning use of experimental or pilot programs and staffing of experimental or pilot programs and decisions concerning use of technology to deliver educational programs and services and staffing to provide the technology, or the impact of these decisions on individual employees or the bargaining unit.

PA 112 and Prohibited Subjects • Every effort should be made by bargaining units to interpret this provision as narrowly as possible. • Narrowly define "experimental or pilot programs" to its common and ordinary meaning • "relating to or having the characteristics of an experiment; tentative,” and only related to technology.

PA 112 and Prohibited Subjects • Any compensation or additional work assignment intended to reimburse an employee or to allow an employee to recover any monetary penalty imposed under the Act.

Union Access toInformation Dan Zarimba MEA Staff Attorney

Union Access to Information General Rule • The employer must provide the union with requested information in a timely fashion to either administer the contract or engage in bargaining • The information sought must be relevant to union's bargaining issues or grievances • “Relevance” is interpreted broadly, i.e., information which aids the arbitral or bargaining process.

Union Access to Information • When information is sought as to individual bargaining unit members, union's access to data is not limited by FOIA defenses (e.g., privacy) • So long as information is otherwise relevant and would normally be considered by arbitrators in cases of like nature • Discipline records of other employees • Criteria to determine merit increases

Employers must provide information concerning non-unit employees if the union demonstrates relevance Information re: leaves of absence for non-unit members relevant as employer claims polices were identical for both Topic of grievance is the propriety of non-unit status of position Union Access to Information

Union Access to Information • The manner, method, and cost of providing information are themselves mandatory subjects of bargaining. • Employer not necessarily required to provide union with free copies of requested information

Union Access to Information • Requests for information may be made by a union both under PERA and FOIA • Kent County Case • PERA does not supersede FOIA • Battle Creek Case (MERC) • Initial investigation records need not be produced until the witness testifies

Union Access to Information • Union Access to Worksite • BUMs have a right to discuss union business and engage in protected activity during non-work time and in non-work areas • Employers may regulate any such activities during work time

Union Access to Information • Union Access to Worksite • In the organizing context, employers need not provide access to non-employee union organizers during regular business hours if union has other means of access (mail, off-site meetings, telephones, etc)

When Contracts Expire:Maintaining the Status Quo Jeff Murphy MEA Staff Attorney

When Contracts Expire • General Rule • The duty to bargain includes the obligation to maintain existing mandatory terms of employment until an agreement or impasse has been reached • NLRB v Katz (1962) • The purpose is to maintain the status quo while the parties negotiate a new contract

When Contracts Expire • MERC follows federal law • Even though CBA expired, its terms continue until a new CBA or impasse is reached • Provisions that continue in effect all relate “wages, hours and other terms and conditions of employment”, i.e., mandatory topics of bargaining

Sick leave policy (part of compensation) Fringe benefits (type and level of benefits) Coordination of benefits (spousal benefits) Hours of hourly employees Salary grid/step increases Big issue in recent years! COLA Longevity Breaks and Lunch Periods Mandatory Topics that Continue after CBA Expires

Continuation of School Calendar • Mandatory Topic, but . . . • Legislature and MERC have modified status quo when it comes to school calendar • 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

Continuation of School Calendar • 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

Continuation of School Calendar • 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

Mandatory Topics that EXPIRE with CBA • Permissive topics, and • Mandatory topics that “inure to the benefit of the union” • Dues deduction • Payment for released time for union officers • No strike clause • Waiver of bargaining rights • Duty to arbitrate

Unfair Labor Practices Doug Wilcox MEA Staff Attorney

Unfair Labor Practices Overview • Charges are filed with MERC • Legal counsel represents association at the hearing • Six month statute of limitations

Unfair Labor Practices Overview • Respondent may file an answer • Charges can be amended or withdrawn • Charges can be filed by and against either party or an individual

Unfair Labor Practices ULP Must Include Factual Details • Must provide a clear and complete factual statement • Including the date, name of employer’s agent involved and sections of the Act allegedly violated • ULP worksheet helps us develop pleadings

Unfair Labor Practices Bill of Particulars • The charged party can ask for more information

ULP Cases Four Basic ULPs Against Employers • Interference with, restraint or coercion of public employees • Assistance, domination or interference with a labor organization • Discrimination against public employees • Refusal to bargain in good faith

Interference, Restraint or Coercion of Public Employees Section 9 Rights • Organize together or to form, join or assist in labor organizations • Engage in lawful concerted activities for purpose of collective bargaining or other mutual aid and protection • Bargain collectively with the employer through representatives of their own free choice

Protected Concerted Activity Conduct must be protected by PERA • Unlawful conduct is not protected Concerted action • Usually involves > one employee

Examples of ProtectedConcerted Activity • Lawful picketing or leafletting • Organizing activities • Speaking on behalf of other employees about wages, hours and working conditions • Other activity designed to benefit more than one employee

Conduct Which Interferes With, Restrains or Coerces Examples • Denying member union representation • Polling employees to determine views on bargaining topics • Retaliation for filing grievance • Retaliation against employee because of status as union member or officer

Bargaining and the Law: Legal Basic for Local Leaders