2008 MERC UPDATE

1. 2008 MERC UPDATE 2008 Bargaining, Political Action and PR Conference Douglas V. Wilcox MEA Staff Attorney

2. INTRODUCTION • 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

3. MERC ENFORCES 3 LAWS • Public Employment Relations Act • Labor Relations and Mediation Act • Compulsory Arbitration Act

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

5. THE GRANHOLM COMMISSIONERS • Christine A. Derdarian (D) • Nino Green (D) • Eugene Lumberg (R) • Appointed by Governor for 3-year staggered terms

6. ADMINISTRATIVE LAW JUDGES • 3 ALJs • David Peltz • Doyle O’Connor • Julia Stern • Cases are very backed up!

7. CASE SUMMARIES • 108 Cases Issued in 2007! • 39 Case Summaries in Outline

8. Representation Cases • MERC has exclusive jurisdiction to determine appropriate bargaining unit • COMMONLY LITIGATED AREAS • Managerial/Executive • Confidential • Supervisory • Community of Interest

9. Managerial Employees • DEFINITION • Policy-making head of a major department • Formulates, determines and effectuates management policy on employer-wide basis

10. Confidential Employees • DEFINITION • Acts in a confidential capacity to one who formulates, determines and effectuates management policy regarding labor relations • Employer gets 1 confidential employee • Employer has burden to show the need for additional confidential employees

11. Supervisory Employees • DEFINITION • Authority, in the interest of the employer, to hire and fire . . . adjust grievances, or effectively recommend such action • Requires independent judgment • Lead workers are not supervisors • Sporadic authority not enough

12. Job duties Skills Education and training Working conditions Supervisory hierarchy Centralized labor relations Physical location of employees Pay differentials Community of Interest Factors

13. Goodrich Area School (p __) • SUPERVISOR CASE • Union filed ULP/UC because district removed custodial supervisor from unit • MERC • Custodial Supervisor was a Supervisor • Responsible for discipline and evaluation • Authority to hire or effectively recommend hiring

14. Garden City Schools (p __) • TEAMSTERS SOUGHT TO REPLACE MEA • ISSUE • Whether employees who are not actively employed may vote in the election? • TEST • Is there a reasonable expectation of recall based on the surrounding circumstances and future plans of the employer? • MERC • Custodial and cafeteria services were subcontracted and there was no objective basis to conclude the district would change its mind in the future

15. Chippewa County (p ) • DECERTIFICATION AND TA’s • Parties reached TA on April 7 • Union ratified • County set to ratify on May 10 • May 5: decertification petition filed • County refused to ratify Union filed ULP • Refusal to ratify within 30 days = bad faith bargaining • MERC • County did not violate the Act

16. Chippewa County (p ) • Court of Appeals • Duty to bargain requires party to act expeditiously and decisively to accept/reject TA • County did not violate Act by delaying its ratification vote because there was no evidence of bad faith • RULE: Decertification petition is barred pending subsequent action on the TA for 30 days after TA is reached • Court remanded case and County was ordered to vote on TA within 30 days

17. ULP Cases • 4 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

18. 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

19. Examples of Protected Concerted 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

20. Conduct Which Interferes With, Restrains or Coerces • Denying union representation to members • Polling employees to determine views on bargaining topics • Retaliation for filing grievance • Retaliation because of status as union member or officer • Surveillance of or threats to employees

21. City of Detroit (p __) • COP SUSPENDED FOR CREATING WEBSITE WHILE OFF-DUTY • Website was a forum to express concerns about department issues • Website included info on salaries, equipment, staffing, grievances, union elections, comic relief • Media published stories • Police chief said he thought site was fine

22. City of Detroit (p __) • 7 MONTHS LATER • Chief suspended cop w/ pay • Website contained racial slurs • If website is not shutdown, cop will be suspended without pay

23. City of Detroit (p __) • MERC • Case of first impression • Operation of website = protected activity • Pay, promotions, manpower, discipline • Ancillary activity did not deprive cop of PERA protection • No adverse impact on department or public confidence • COURTOF APPEALS AGREED WITH MERC

24. Assistance, Domination or Interference with Union • DOMINATION • Supervisors included in non-supervisory unit • ASSISTANCE TO UNION • Employer can’t assist one union over another • If there is a question concerning representation, employer must stop bargaining with incumbent union

25. Assistance, Domination or Interference with Union • INTERFERENCE WITH UNION • Communicating with members to degrade or bypass union • Encouraging decertification efforts • Conduct that drives a wedge between union and its members

26. Discrimination Against Employees • Unlawful to discriminate in regard to hire, terms or other employment conditions in order to encourage or discourage union membership • Focus is on employer’smotive

27. Discrimination Against Employees • UNLAWFUL CONDUCT • Discipline and discharge motivated by anti-union animus • Pay different wages • Transfer or reassign employee • Layoff or fail to recall employee

28. Discrimination Against Employees • Discrimination for Testifying or Instituting Proceedings under the Act • Employer’s aren’t usually this dumb • Actual participation is not required

29. Discrimination Against Employees • DUAL MOTIVE TEST • Union must show union activity was a motivating factor • Employer must show it would have made the same decision in the absence of protected conduct

30. Utica Community Schools (p __) • DISTRICT RETALIATED AGAINST MEMBER • Max teaching load = 155 students • Complaints about imbalance in class sizes • Member met with district to discuss issue • Principal said the problem could be solved if member was put back in classroom full-time • Union grieved the class size issue • Member was transferred and lost assignment

31. Utica Community Schools (p __) • MERC • Member engaged in protected activity • Principal knew member was leading union efforts • Anti-union animus established through principal’s conduct • Proposed to eliminate member’s job • Anger toward union and member

32. Utica Community Schools (p __) • MERC • Anti-union animus was a motivating factor in decision to eliminate member’s job • District ordered to reinstate member to prior assignments and make her whole

33. City of Bay City (p __) • ILLEGAL CITY RESOLUTION • Resolution: Employees could only address city commissioners on issues outside of labor relations • ULP on interference with organizing campaign • Months before ULP hearing, member talked to a commissioner about its organizational chart and was subsequently warned

34. City of Bay City (p __) • Day of ULP hearing, member spoke with another commissioner about city manager’s involvement in the ULP • Member was suspended Union argued resolution restrained employees from engaging in protected activity • ALJ • No jurisdiction over constitutional law issues

35. City of Bay City (p __) • MERC • Employees’ right to communicate about employment conditions is inherent in the right to self-organize • This right extends to employees, non-employees and employer officials • Resolution had chilling effect on Section 9 rights and was unlawful

36. Warren Consolidated Schools (p __) • DISCIPLINE AND SUSPICIOUS TIMING • Teacher and board member were rivals • Teacher required students to attend board meeting • Board member made unflattering comments about teacher • Teacher and administration reviewed tape • Teacher said “are you on steroids” • Board member threw tape at teacher

37. Warren Consolidated Schools (p ) • Complaints and grievances filed • Before grievance meeting, board member said teacher accused him of steroid use in past • District decided to investigate • After subsequent grievance meeting, teacher disciplined

38. Warren Consolidated Schools (p ) • ALJ Found Anti-Union Animus • suspicious timing of district’s decision to investigate prior statements • irregularity of investigation • 4 month delay in disciplining teacher • failure to inform teacher of right to union representation • decision to reprimand teacher at grievance meeting

39. Warren Consolidated Schools (p__) • MERC – No ULP • Coincidental timing alone was not enough • District gave reasonable explanation for delay • Court of Appeals Reversed • MERC failed to defer to ALJ on issues of witness credibility • MERC disregarded ALJ’s assessment of UD’s testimony about events leading to the reprimand • MERC may not substitute its own credibility determinations

40. Ingham County (p __) • WORK RULE WAS LEGITIMATE • Internal rule prohibiting release of department documents to public • Union officer received memo about off-duty detectives wearing pagers • Officer gave memo to its legal counsel • Officer disciplined

41. Ingham County (p__) • ALJ • Discipline adversely impacted right to engage in protected activity • No legitimate interest in preventing unauthorized disclosure of confidential information to public

42. Ingham County (p __) • MERC Agreed • Employer may maintain a legitimate business interest to prevent unauthorized disclosure of confidential information • But there was no justification to prohibit union president from giving legal counsel a memo regarding employment conditions

43. Ingham County (p __) • COURT OF APPEALS REVERSED • Employer’s action did not adversely affect or unreasonably restrict the union officer’s protected right to engage in lawful activity • The officer was disciplined for violating job rules not because of her position as a union official • Employer’s interest in keeping all internal documents out of the public outweighed the union’s protected activity

44. Refusal to Bargain ULPs • Unlawful for Employer to refuse to bargain collectively with union representatives • ISSUES • Bad faith • Repudiation • Unilateral changes in employment conditions • Impasse • Duty to provide information

45. Wayne County Community College (p __) • CONTRACT REPUDIATION • CBA required College to pay premiums for 3 health care plans (HAP, BCBS an PPO) • College unilaterally reduced plans from 3 to 2 • Union protested and demanded to bargain • College failed to reply

46. Wayne County Community College (p __) • Elements of Contract Repudiation • Contract breach is substantial • Contract breach must have a significant impact on the bargaining unit • No bona fide dispute over interpretation of contract

47. Wayne County Community College (p __) • MERC • College repudiated CBA by withdrawing one of the health care plan options without bargaining

48. Wayne County Community College (p __) • EFFECTS BARGAINING • College identified several jobs for elimination • Union requested to discuss impact • After additional meetings, the union demanded to bargain the impact of the “proposed alignment” on various issues • Combining of programs; assigning unit work to non-members and reducing working hours

49. Wayne County Community College (p __) • MERC • Impact of reorganization was a mandatory topic • Union not aware of any changes that took place as a result of the layoff and reassignment • The union demanded effects bargaining as soon at it learned of changes • College failed to satisfy its bargaining obligation • Back pay remedy issued

50. Washtenaw County Road Commission (p __) • REFUSING TO ACCEPT GRIEVANCE • Union filed grievance • Identified specific article involving FMLA • County refused to accept grievance or acknowledge it because the grievance “failed to state a specific violation and therefore is not a proper grievance”