bargaining and the law: legal basic for local leaders

Bargaining and the Law:Bargaining and the Law:Legal Basic for Local Leaders Legal Basic for Local Leaders

Jeff MurphyJeff MurphyDoug WilcoxDoug WilcoxDan ZarimbaDan Zarimba

AGENDAAGENDA

• PERA & MERCPERA & MERC• Topics of BargainingTopics of Bargaining• Union Access to Union Access to

InformationInformation• When Contracts When Contracts

ExpireExpire• ULPsULPs

• Impasse & Impasse & ImplementationImplementation

• Mediation & Mediation & FactfindingFactfinding

• Job Actions (Strikes)Job Actions (Strikes)• Duty of Fair Duty of Fair

RepresentationRepresentation

PERA & MERCPERA & MERC

Doug WilcoxDoug Wilcox

MEA Staff AttorneyMEA Staff Attorney

PERA OVERVIEWPERA OVERVIEW

Labor Mediation BoardLabor Mediation Board• 1939 Statute1939 Statute• Jurisdiction over private employers not covered by Jurisdiction over private employers not covered by

NLRANLRA

Hutchinson ActHutchinson Act • 1947 Statute1947 Statute• Regulated labor relations between public employers Regulated labor relations between public employers

and employeesand employees• Prohibited strikingProhibited striking• Any employee who violated Act abandoned job and Any employee who violated Act abandoned job and

terminated employmentterminated employment


Hutchinson Act Hutchinson Act • No mediation/fact-findingNo mediation/fact-finding

• No ULPsNo ULPs

• No cause of action in courtNo cause of action in court

• True "take-it-or-leave-it" relationship LaborTrue "take-it-or-leave-it" relationship Labor


PERA PERA • PA 379 of 1965PA 379 of 1965• Amended Hutchinson Act Amended Hutchinson Act • Extensive public employee involvement its Extensive public employee involvement its

passagepassage • Signed by Republican Governor George Signed by Republican Governor George

RomneyRomney


PERA PERA • Strikes still prohibitedStrikes still prohibited• No longer automatic dischargeNo longer automatic discharge

• Section 6 and Review by Circuit CourtSection 6 and Review by Circuit Court

• Right to bargain collectively over wages, Right to bargain collectively over wages, hours and other terms and conditions of hours and other terms and conditions of employmentemployment

• ULPs definedULPs definedNOTE: ULPs against unions added in 1973 NOTE: ULPs against unions added in 1973


PA112 of 1994PA112 of 1994• Expanded definition of strikeExpanded definition of strike• Created subclass: public school employeesCreated subclass: public school employees• Fines for strikesFines for strikes • Prohibits job actions taken in response to Prohibits job actions taken in response to

employer ULPsemployer ULPs • Seeks to limit role of MABOs in contract Seeks to limit role of MABOs in contract

ratificationratification• Extensive list of prohibited (illegal) bargaining Extensive list of prohibited (illegal) bargaining

subjectssubjects

MERCMERC

• MERC is part of the Department of MERC is part of the Department of Labor and Economic Growth Labor and Economic Growth

• MERC Jurisdiction:MERC Jurisdiction: all public employers all public employers except civil service employees and except civil service employees and Michigan Supreme Court employeesMichigan Supreme Court employees

MERC ENFORCES THREE LAWSMERC ENFORCES THREE LAWS

• Labor Relations and Mediation Act Labor Relations and Mediation Act (LMA)(LMA)

• Public Employment Relations Act Public Employment Relations Act

(PERA)(PERA)

• Compulsory Arbitration Act (Act 312)Compulsory Arbitration Act (Act 312)

MERC FUNCTIONSMERC FUNCTIONS

• Appoints mediators, arbitrators and fact Appoints mediators, arbitrators and fact findersfinders

• Conducts union representation Conducts union representation electionselections

• Determines appropriate bargaining unitsDetermines appropriate bargaining units

• Adjudicates ULP casesAdjudicates ULP cases

THE GRANHOLM THE GRANHOLM COMMISSIONERSCOMMISSIONERS

Christine A. Derdarian (D)Christine A. Derdarian (D)• She replaced Nora LynchShe replaced Nora Lynch

Nino Green (D) Nino Green (D)

Eugene Lumberg (R)Eugene Lumberg (R)• Appointed by Governor for three-year Appointed by Governor for three-year

staggered termsstaggered terms

ADMINISTRATIVEADMINISTRATIVELAW JUDGESLAW JUDGES

Three ALJsThree ALJs• David PeltzDavid Peltz• Doyle O’ConnorDoyle O’Connor• Julia SternJulia Stern

Cases are very backed upCases are very backed up!!

Mandatory, Permissive, and Mandatory, Permissive, and Prohibited TopicsProhibited Topics

Jeff MurphyJeff Murphy


Mandatory Bargaining TopicsMandatory Bargaining Topics

• Mandatory Topics Mandatory Topics • The duty to bargain in good faith under The duty to bargain in good faith under

Section 15 of PERA extends to those Section 15 of PERA extends to those subjects found within the phrase “wages, subjects found within the phrase “wages, hours and other terms and conditions of hours and other terms and conditions of employment”employment”

• No unilateral action allowed on mandatory No unilateral action allowed on mandatory topics absent impassetopics absent impasse

Mandatory Bargaining TopicsMandatory Bargaining Topics• WagesWages• Insurance coverage Insurance coverage

(including carrier)(including carrier)• Evaluation proceduresEvaluation procedures• Grievance/ arbitration Grievance/ arbitration

procedureprocedure• Just causeJust cause• School calendarSchool calendar• Layoff/recallLayoff/recall• Seniority (for bargaining Seniority (for bargaining

unit members)unit members)

• Safety issuesSafety issues• Working conditions for Working conditions for

accreted employeesaccreted employees• Transfer of exclusive Transfer of exclusive

bargaining unit workbargaining unit work• Change in the number Change in the number

of class periods per dayof class periods per day• Residency requirementResidency requirement• Disciplinary proceduresDisciplinary procedures• PensionsPensions• Overload hoursOverload hours

Permissive Bargaining TopicsPermissive Bargaining Topics• Those topics which fall outside the Those topics which fall outside the

scope of wages, hours and other terms scope of wages, hours and other terms and conditions of employment, and conditions of employment, e.g.e.g.,,• Hiring qualificationsHiring qualifications• Administrative seniority in unitAdministrative seniority in unit• Size of work forceSize of work force• Recognition clauseRecognition clause• Negotiations ground rules Negotiations ground rules • ““Zipper clause”Zipper clause”

More Permissive orMore Permissive orVoluntary SubjectsVoluntary Subjects

• Maintenance of Maintenance of standards clausestandards clause

• Wages of Wages of substitutes not in substitutes not in unitunit

• Availability of Availability of overtimeovertime

• Decision to layoff Decision to layoff workersworkers

• Existing benefits of Existing benefits of retireesretirees

• Outside employmentOutside employment• Program cutsProgram cuts• Aggregate overload Aggregate overload

hourshours

Prohibited Subjects of Bargaining Prohibited Subjects of Bargaining (Traditional)(Traditional)

• Neither union nor management can Neither union nor management can demand to bargain provisions that take demand to bargain provisions that take away a member's rights under the law, away a member's rights under the law, such as:such as:• the right to be free from discrimination and the right to be free from discrimination and

harassment harassment• the right to minimum wage and overtimethe right to minimum wage and overtime• the right to be free from discrimination the right to be free from discrimination

because of union activitybecause of union activity

PA 112 and Prohibited SubjectsPA 112 and Prohibited Subjects

• The The policyholderpolicyholder of an employee group of an employee group insurance benefit. (Section 15(3)(a)). Does insurance benefit. (Section 15(3)(a)). Does not prohibit bargaining on the identity of the not prohibit bargaining on the identity of the health care provider, carrier, or type or level health care provider, carrier, or type or level of benefits. of benefits.

• The The starting daystarting day of the school year and the of the school year and the amount of pupil contact time requiredamount of pupil contact time required to to receive full state aid. receive full state aid.


• The The decision whether to subcontractdecision whether to subcontract or or outsource non-instructional support services, outsource non-instructional support services, the the proceduresprocedures for obtaining the contract with for obtaining the contract with a third party, the a third party, the identityidentity of the third party, or of the third party, or the the impact impact of the outsourcing on individual of the outsourcing on individual employees or the bargaining unit. employees or the bargaining unit.

• The The use of volunteersuse of volunteers in providing services. in providing services.


• Decisions concerning use of Decisions concerning use of experimental or pilot programsexperimental or pilot programs and staffing of experimental or and staffing of experimental or pilot programs and decisions pilot programs and decisions concerning concerning use of technologyuse of technology to to deliver educational programs and deliver educational programs and services and staffing to provide services and staffing to provide the technology, or the the technology, or the impactimpact of of these decisions on individual these decisions on individual employees or the bargaining unit.employees or the bargaining unit.


• Every effort should be made by bargaining Every effort should be made by bargaining units to interpret this provision as narrowly as units to interpret this provision as narrowly as possible.possible.

• Narrowly define "experimental or pilot Narrowly define "experimental or pilot programs" to its common and ordinary programs" to its common and ordinary meaningmeaning• "relating to or having the characteristics of an "relating to or having the characteristics of an

experiment; tentative,” and only related to experiment; tentative,” and only related to

technology.technology.


• Any Any compensation or additional work compensation or additional work assignment intended to reimburseassignment intended to reimburse an an employee or to allow an employee to employee or to allow an employee to recover any monetary penalty imposed recover any monetary penalty imposed under the Act.under the Act.

Union Access toUnion Access toInformationInformation

Dan ZarimbaDan Zarimba


Union Access to InformationUnion Access to Information

General RuleGeneral Rule• The employer must provide the union with The employer must provide the union with

requested information in a timely fashion to requested information in a timely fashion to either administer the contract or engage in either administer the contract or engage in bargainingbargaining

• The information sought must be The information sought must be relevantrelevant to to union's bargaining issues or grievancesunion's bargaining issues or grievances• ““Relevance” is interpreted broadly, i.e., Relevance” is interpreted broadly, i.e.,

information which aids the arbitral or bargaining information which aids the arbitral or bargaining process.process.


• When information is sought as to individual When information is sought as to individual bargaining unit members, union's access to bargaining unit members, union's access to data is data is notnot limited by FOIA defenses ( limited by FOIA defenses (e.g., e.g., privacy)privacy)

• So long as information is otherwise relevant So long as information is otherwise relevant and would normally be considered by and would normally be considered by arbitrators in cases of like naturearbitrators in cases of like nature• Discipline records of other employeesDiscipline records of other employees• Criteria to determine merit increasesCriteria to determine merit increases


• Employers must provide information Employers must provide information concerning non-unit employees concerning non-unit employees ifif the union the union demonstrates relevance demonstrates relevance • Information re: leaves of absence for non-unit Information re: leaves of absence for non-unit

members relevant as employer claims polices members relevant as employer claims polices were identical for bothwere identical for both

• Topic of grievance is the propriety of non-unit Topic of grievance is the propriety of non-unit status of positionstatus of position


• The manner, method, and cost of The manner, method, and cost of providing information are themselves providing information are themselves mandatory subjects of bargaining.mandatory subjects of bargaining.• Employer not necessarily required to Employer not necessarily required to

provide union with free copies of provide union with free copies of requested informationrequested information


• Requests for information may be Requests for information may be made by a union both under PERA made by a union both under PERA and FOIAand FOIA• Kent County CaseKent County Case

• PERA does not supersede FOIAPERA does not supersede FOIA

• Battle Creek Case (MERC)Battle Creek Case (MERC)• Initial investigation records need not be Initial investigation records need not be

produced until the witness testifiesproduced until the witness testifies


• Union Access to WorksiteUnion Access to Worksite• BUMs have a right to discuss union BUMs have a right to discuss union

business and engage in protected business and engage in protected activity during non-work time and in non-activity during non-work time and in non-work areaswork areas

• Employers may regulate any such Employers may regulate any such activities during work timeactivities during work time


• Union Access to WorksiteUnion Access to Worksite• In the organizing context, employers In the organizing context, employers

need not provide access to non-need not provide access to non-employee union organizers during employee union organizers during regular business hours if union has regular business hours if union has other means of access (mail, off-site other means of access (mail, off-site meetings, telephones, etc)meetings, telephones, etc)

When Contracts Expire:When Contracts Expire:Maintaining the Status QuoMaintaining the Status Quo



When Contracts ExpireWhen Contracts Expire

• General RuleGeneral Rule• The duty to bargain includes the obligation The duty to bargain includes the obligation

to maintain existing mandatory terms of to maintain existing mandatory terms of employment until an agreement or impasse employment until an agreement or impasse has been reachedhas been reached• NLRB v Katz (1962)NLRB v Katz (1962)

• The purpose is to maintain the status quo The purpose is to maintain the status quo while the parties negotiate a new contractwhile the parties negotiate a new contract

When Contracts ExpireWhen Contracts Expire

• MERC follows federal law MERC follows federal law • Even though CBA expired, its terms Even though CBA expired, its terms

continue until a new CBA or impasse is continue until a new CBA or impasse is reachedreached• Provisions that continue in effect all relate Provisions that continue in effect all relate

“wages, hours and other terms and “wages, hours and other terms and conditions of employment”, conditions of employment”, i.e.i.e., mandatory , mandatory topics of bargainingtopics of bargaining

Mandatory Topics that Continue Mandatory Topics that Continue after CBA Expiresafter CBA Expires

• Sick leave policy (part Sick leave policy (part of compensation)of compensation)

• Fringe benefits (type Fringe benefits (type and level of benefits)and level of benefits)

• Coordination of Coordination of benefits (spousal benefits (spousal benefits)benefits)

• Hours of hourly Hours of hourly employeesemployees

• Salary grid/step Salary grid/step increasesincreases• Big issue in recent Big issue in recent

years!years!

• COLACOLA• LongevityLongevity• Breaks and Lunch Breaks and Lunch

PeriodsPeriods

Continuation of School CalendarContinuation of School Calendar

• Mandatory Topic, but . . . Mandatory Topic, but . . . • Legislature and MERC have modified status Legislature and MERC have modified status

quo when it comes to school calendarquo when it comes to school calendar• Legislative MandatesLegislative Mandates

• PA 112 – no bargaining over “starting day”PA 112 – no bargaining over “starting day”• 2000 – no school on Friday before Labor Day2000 – no school on Friday before Labor Day• 2005 – no school at all before Labor Day2005 – no school at all before Labor Day• PA 101 (2007) – common calendar w/ ISD for PA 101 (2007) – common calendar w/ ISD for

winter and spring breakswinter and spring breaks


• MERC decisionsMERC decisions• Imposition of calendar OK if sufficient Imposition of calendar OK if sufficient

bargaining and normal start date nearbargaining and normal start date near• Business necessityBusiness necessity

• Imposing same schedule as prior years is Imposing same schedule as prior years is seen as effort to maintain status quo seen as effort to maintain status quo

• District must continue to bargain, or at District must continue to bargain, or at least show willingness to do soleast show willingness to do so


• MERC decisions – limits on school MERC decisions – limits on school boardsboards• Can’t impose too early - no business Can’t impose too early - no business

necessitynecessity• Board must bargain calendar with each Board must bargain calendar with each

bargaining unit – but no ULP if it agrees with bargaining unit – but no ULP if it agrees with one unit before anotherone unit before another

• Financial crisis does not justify imposition of Financial crisis does not justify imposition of calendarcalendar

Mandatory Topics that EXPIRE Mandatory Topics that EXPIRE with CBAwith CBA

• Permissive topics, andPermissive topics, and• Mandatory topics that “inure to the benefit Mandatory topics that “inure to the benefit

of the union”of the union”• Dues deductionDues deduction• Payment for released time for union officersPayment for released time for union officers• No strike clauseNo strike clause• Waiver of bargaining rightsWaiver of bargaining rights• Duty to arbitrateDuty to arbitrate

Unfair Labor PracticesUnfair Labor Practices




OverviewOverview• Charges are filed with MERCCharges are filed with MERC• Legal counsel represents association at Legal counsel represents association at

the hearingthe hearing• Six month statute of limitations Six month statute of limitations


OverviewOverview• Respondent may file an answerRespondent may file an answer• Charges can be amended or withdrawnCharges can be amended or withdrawn• Charges can be filed by and against Charges can be filed by and against

either party or an individualeither party or an individual


ULP Must Include Factual DetailsULP Must Include Factual Details• Must provide a clear and complete Must provide a clear and complete

factual statementfactual statement• Including the date, name of Including the date, name of

employer’s agent involved and employer’s agent involved and sections of the Act allegedly violatedsections of the Act allegedly violated

• ULP worksheet helps us develop ULP worksheet helps us develop pleadingspleadings


Bill of ParticularsBill of Particulars• The charged party can ask for more The charged party can ask for more

informationinformation

ULP CasesULP Cases

Four Basic ULPs Against EmployersFour Basic ULPs Against Employers• Interference with, restraint or coercion Interference with, restraint or coercion

of public employeesof public employees• Assistance, domination or interference Assistance, domination or interference

with a labor organizationwith a labor organization• Discrimination against public employeesDiscrimination against public employees• Refusal to bargain in good faithRefusal to bargain in good faith

Interference, Restraint or Coercion Interference, Restraint or Coercion of Public Employeesof Public Employees

Section 9 RightsSection 9 Rights• Organize together or to form, join or assist Organize together or to form, join or assist

in labor organizations in labor organizations • Engage in lawful concerted activities for Engage in lawful concerted activities for

purpose of collective bargaining or other purpose of collective bargaining or other mutual aid and protectionmutual aid and protection

• Bargain collectively with the employer Bargain collectively with the employer through representatives of their own free through representatives of their own free choicechoice

Protected Concerted ActivityProtected Concerted Activity

Conduct must be protected by PERAConduct must be protected by PERA• Unlawful conduct is not protectedUnlawful conduct is not protected

Concerted actionConcerted action• Usually involves > one employeeUsually involves > one employee

Examples of ProtectedExamples of ProtectedConcerted ActivityConcerted Activity

• Lawful picketing or leafletting Lawful picketing or leafletting • Organizing activitiesOrganizing activities• Speaking on behalf of other employees Speaking on behalf of other employees

about wages, hours and working about wages, hours and working conditionsconditions

• Other activity designed to benefit more Other activity designed to benefit more than one employeethan one employee

Conduct Which Interferes With, Conduct Which Interferes With, Restrains or CoercesRestrains or Coerces

ExamplesExamples• Denying member union representationDenying member union representation• Polling employees to determine views Polling employees to determine views

on bargaining topicson bargaining topics• Retaliation for filing grievanceRetaliation for filing grievance• Retaliation against employee because Retaliation against employee because

of status as union member or officerof status as union member or officer

Conduct Which Interferes With, Conduct Which Interferes With, Restrains or CoercesRestrains or Coerces

More ExamplesMore Examples• Granting/withholding benefits because Granting/withholding benefits because

employees sought union representationemployees sought union representation• Surveillance of or threats to employeesSurveillance of or threats to employees• Interfering with union affairs or union’s Interfering with union affairs or union’s

representation of its membersrepresentation of its members

Saginaw Township (2005)Saginaw Township (2005)

Police Chief Threatens UnionPolice Chief Threatens Union• I thought of killing you and burying your bodies I thought of killing you and burying your bodies

where no one could find them, like Hoffawhere no one could find them, like Hoffa• There is a price to pay when you come in hereThere is a price to pay when you come in here• If grievances are filed over stand-by pay, they’re If grievances are filed over stand-by pay, they’re

going to report here in uniform on stand-bygoing to report here in uniform on stand-by• I will put them on a “short leash” I will put them on a “short leash”

Saginaw Township (2005)Saginaw Township (2005)

Charge against EmployerCharge against Employer • Statements were threatening, coercive Statements were threatening, coercive

and interfered with Section 9 rightsand interfered with Section 9 rights• Held: An employer cannot threaten Held: An employer cannot threaten

employees or retaliate against thememployees or retaliate against them

City of Detroit (2005)City of Detroit (2005)

Retaliatory Discharge of Union StewardRetaliatory Discharge of Union Steward

• Disciplinary conferenceDisciplinary conference• Steward objected to discipline Steward objected to discipline • Supervisor asked member for driver’s Supervisor asked member for driver’s

licenselicense• Steward said “no” Steward said “no” • Heated discussion followedHeated discussion followed• Steward fired for abusive languageSteward fired for abusive language

City of Detroit (2005)City of Detroit (2005)

ALJALJ• Steward was engaged in protected Steward was engaged in protected

activityactivity• Steward’s behavior was not flagrantSteward’s behavior was not flagrant• Steward never threaten supervisorSteward never threaten supervisor• Steward is reinstated with full back paySteward is reinstated with full back pay

Assistance, Domination or Assistance, Domination or Interference with UnionInterference with Union

DominationDomination• Supervisors included in non-supervisory unitSupervisors included in non-supervisory unit

Assistance to UnionAssistance to Union• Employer can’t assist one union over Employer can’t assist one union over

anotheranother• If there is a question concerning If there is a question concerning

representation (QCR), employer must stop representation (QCR), employer must stop bargaining with incumbent unionbargaining with incumbent union

Assistance, Domination or Assistance, Domination or Interference with UnionInterference with Union

Interference with UnionInterference with Union• Communicating with members to Communicating with members to

degrade or bypass uniondegrade or bypass union• Encouraging decertification effortsEncouraging decertification efforts• Conduct that drives a wedge between Conduct that drives a wedge between

union and its membersunion and its members

Discrimination Against EmployeesDiscrimination Against Employees

Unlawful to discriminate in regard to hire, Unlawful to discriminate in regard to hire, terms or other conditions of employment terms or other conditions of employment in order to encourage/discourage union in order to encourage/discourage union membershipmembership

• Protected Concerted ActivityProtected Concerted Activity• Discrimination against employeesDiscrimination against employees• Focus is on Focus is on employer’s motiveemployer’s motive


Unlawful ConductUnlawful Conduct• Discipline and discharge Discipline and discharge motivatedmotivated by by

anti-union animusanti-union animus• Pay different wages Pay different wages • Transfer or reassign employee Transfer or reassign employee • Lay off or fail to recall employeeLay off or fail to recall employee


Employer Can’t Encourage Union MembershipEmployer Can’t Encourage Union Membership• Super-seniority clausesSuper-seniority clauses• Special protection for union officers is Special protection for union officers is

problematicproblematic


Discrimination for Testifying or Instituting Discrimination for Testifying or Instituting Proceedings under ActProceedings under Act•Employer’s aren’t usually this dumbEmployer’s aren’t usually this dumb•Actual participation is not requiredActual participation is not required


Dual Motive TestDual Motive Test• Union must show union activity was a Union must show union activity was a

motivating factormotivating factor• Union often relies upon Union often relies upon suspicious timingsuspicious timing

• Employer must show it would have Employer must show it would have made the same decision in the absence made the same decision in the absence of protected conductof protected conduct

City of Detroit (Planning & City of Detroit (Planning & Development Dept) (2005)Development Dept) (2005)

Union Steward’s Conduct not ProtectedUnion Steward’s Conduct not Protected• Steward accessed database to collect Steward accessed database to collect

information about employee’s work information about employee’s work production without authorizationproduction without authorization

• Steward gave info to manager to show Steward gave info to manager to show another employee was unfairly another employee was unfairly disciplineddisciplined

• Steward disciplined for three daysSteward disciplined for three days

City of Detroit (Planning & City of Detroit (Planning & Development Dept) (2005)Development Dept) (2005)

ALJALJ::• Steward’s conduct was unjustifiedSteward’s conduct was unjustified• Removing private information from files Removing private information from files

for union purposes without approval for union purposes without approval was not protectedwas not protected

Refusal to Bargain ULPsRefusal to Bargain ULPs

• Unlawful for Employer to refuse to Unlawful for Employer to refuse to bargain collectively with union bargain collectively with union representativesrepresentatives

• IssuesIssues• Employer must bargain in good faith Employer must bargain in good faith • ImpasseImpasse• Duty to provide informationDuty to provide information• Unilateral change in employment conditionsUnilateral change in employment conditions

Refusal to Bargain ULPsRefusal to Bargain ULPs

How to Prove Bad Faith BargainingHow to Prove Bad Faith Bargaining• Authority to bargainAuthority to bargain• Meeting at reasonable timesMeeting at reasonable times• Content of proposalsContent of proposals• Preconditions on bargainingPreconditions on bargaining• Conduct away from tableConduct away from table• Unilateral changesUnilateral changes

Orion Township (2005)Orion Township (2005)

Duty to Bargain After Factfinder’s Report Duty to Bargain After Factfinder’s Report • Report issued 12/6Report issued 12/6• Parties met on 1/9Parties met on 1/9• 30 minute meeting – parties did not 30 minute meeting – parties did not

really negotiatereally negotiate• Union subsequently requested future Union subsequently requested future

bargainingbargaining

Orion Township (2005)Orion Township (2005)

MERCMERC• Single meeting after fact finding is not Single meeting after fact finding is not

good faith bargaining.good faith bargaining.• Parties must at least meet and bargain Parties must at least meet and bargain

during 60 day period after report is during 60 day period after report is issued. issued.


Union Unfair Labor PracticesUnion Unfair Labor Practices • Restrain (Restrain (not interfere) not interfere) or coerce public or coerce public

employees in exercising their rights under employees in exercising their rights under the Act, including the right to select a the Act, including the right to select a bargaining representativebargaining representative

• Cause or attempt to cause an employer to Cause or attempt to cause an employer to discriminate against an employeediscriminate against an employee

• Refuse to bargain collectivelyRefuse to bargain collectively


Examples of Union ULPsExamples of Union ULPs• Making actual or threatened economic Making actual or threatened economic

reprisals and/or physical violencereprisals and/or physical violence• Causing employer to discriminate Causing employer to discriminate

(super-seniority for union officers(super-seniority for union officerscan be problematic)can be problematic)


ConclusionConclusion• Focus of ULPs is on process, not Focus of ULPs is on process, not

substance – the process must be fair.substance – the process must be fair.• ULP WorksheetULP Worksheet focuses on bargaining. focuses on bargaining.

• Keep it handy for reference.Keep it handy for reference.• Take good notes – this is Take good notes – this is criticalcritical!!


ConclusionConclusion• But, watch for ULPs outside of bargainingBut, watch for ULPs outside of bargaining

• Unilateral changes in working conditionsUnilateral changes in working conditions• Changes in practice or policy affecting working Changes in practice or policy affecting working

conditionsconditions• Surveys of membersSurveys of members• Side deals or direct dealing with membersSide deals or direct dealing with members• Repudiation of all or part of the contractRepudiation of all or part of the contract

Impasse and Imposition inImpasse and Imposition inCollective BargainingCollective Bargaining



Effect of ImpasseEffect of Impasse• Allows employer to take unilateral action Allows employer to take unilateral action

on mandatory topics of bargainingon mandatory topics of bargaining

Definition of ImpasseDefinition of Impasse• Point at which further bargaining would Point at which further bargaining would

be futilebe futile• Positions of parties have solidified and Positions of parties have solidified and

further bargaining would be uselessfurther bargaining would be useless

ImpasseImpasse

• Because the finding of an impasse depends Because the finding of an impasse depends on the facts of each case, a bargaining on the facts of each case, a bargaining impasse does not readily lend itself to an impasse does not readily lend itself to an objective definition applicable to all cases.objective definition applicable to all cases.

Impasse FactorsImpasse Factors

• Proper disclosure of information by Proper disclosure of information by employeremployer

• Length of bargainingLength of bargaining• Willingness of the parties to formulate Willingness of the parties to formulate

and offer new proposalsand offer new proposals• Business necessityBusiness necessity

Impasse in the Old DaysImpasse in the Old Days

Pre-Engler DaysPre-Engler Days• MERC was reluctant to find impasseMERC was reluctant to find impasse• City of Saginaw (MERC, 1982)City of Saginaw (MERC, 1982)

• No impasse after eight sessions over a five-week No impasse after eight sessions over a five-week period even though union rejected proposalperiod even though union rejected proposal

• No impasse if fact-finding petition is pendingNo impasse if fact-finding petition is pending

The Engler YearsThe Engler Years

MERC is more willing to find impasseMERC is more willing to find impasse• Wayne County (MERC, 1995)Wayne County (MERC, 1995)

• Impasse upheld after only four sessions Impasse upheld after only four sessions over a three month period!over a three month period!

• Ida Public Schools (MERC, 1996)Ida Public Schools (MERC, 1996)• Impasse after only four sessions in Impasse after only four sessions in

summer!summer!


Waldron Area Schools (1997)Waldron Area Schools (1997)• Impasse even though district did not present Impasse even though district did not present

its offer as its “last best offer” no impasse was its offer as its “last best offer” no impasse was declared when union rejected offer, and declared when union rejected offer, and employer agreed to schedule another employer agreed to schedule another meetingmeeting


City of Detroit (1996)City of Detroit (1996)• A union ignores or avoids confronting A union ignores or avoids confronting

employer demands for cutbacks at its peril.employer demands for cutbacks at its peril.Ferris State University (1998)Ferris State University (1998)• Impasse even though parties had only one Impasse even though parties had only one

short mediation sessionshort mediation session

Granholm CommissionGranholm Commission

MERC is slowly returning toMERC is slowly returning toearlier standardsearlier standards•Oakland Community College (2001)Oakland Community College (2001)

• Employer must prove that neither party, not Employer must prove that neither party, not just one, was willing to compromise!just one, was willing to compromise!

•Orion Twp (2005)Orion Twp (2005)• Once a factfinder’s report is issued, the Once a factfinder’s report is issued, the

parties must bargain over the substance of parties must bargain over the substance of report for a reasonable period of time.report for a reasonable period of time.

ImpasseImpasseInstant ImpasseInstant Impasse • A party cannotA party cannot isolate an issue and upon receiving a isolate an issue and upon receiving a

readily foreseeable response from its opponent readily foreseeable response from its opponent create an "instant impasse"create an "instant impasse"

Constructive ImpasseConstructive Impasse• Parties may be deemed at "impasse" on the school Parties may be deemed at "impasse" on the school

calendar for, despite the fact that the school calendar for, despite the fact that the school calendar is a mandatory bargaining topic, ifcalendar is a mandatory bargaining topic, if• sufficient bargaining has taken place, and sufficient bargaining has taken place, and • business necessity requires announcement of school business necessity requires announcement of school

calendarcalendar• following prior year calendar as closely as possible is seen following prior year calendar as closely as possible is seen

by MERC as an attempt to maintain the status quo by MERC as an attempt to maintain the status quo

Selective ImplementationSelective Implementationof Last Offerof Last Offer

• Employer may selectively implement Employer may selectively implement elements of its last package offer upon elements of its last package offer upon reaching impasse. reaching impasse.

• Employer may implement a final offer that Employer may implement a final offer that incorporatedincorporated elements of its official or elements of its official or table position and elements of its table position and elements of its "package" proposal"package" proposal

• Employer not required to identify proposal Employer not required to identify proposal as “last best offer”as “last best offer”

Selective ImplementationSelective Implementationof Last Offerof Last Offer

• Employer is not required to reinstate Employer is not required to reinstate dues deduction or grievance/arbitration dues deduction or grievance/arbitration as part of implemented work rules even as part of implemented work rules even though provisions were part of the though provisions were part of the employer’s last offeremployer’s last offer

• After Impasse, the employer is free to After Impasse, the employer is free to impose all, or part, of its proposalsimpose all, or part, of its proposals

Ways to Avoid ImpasseWays to Avoid Impasse

• Employer’s last offer cannot be Employer’s last offer cannot be implemented if fact-finding petition is implemented if fact-finding petition is pendingpending• Race to courthouse steps!Race to courthouse steps!

• Employer can’t implement last offer Employer can’t implement last offer until it has fulfilled all of union’s until it has fulfilled all of union’s request for information needed for request for information needed for bargaining bargaining


• At the tableAt the table• Always be willing to consider the matter Always be willing to consider the matter

furtherfurther• When it is difficult to move significantly When it is difficult to move significantly

toward the board's last offer, try toward the board's last offer, try packages that rearrange the pieces.packages that rearrange the pieces.


• Ask for another bargaining session Ask for another bargaining session before a session breaks upbefore a session breaks up• Indicates that bargaining should continueIndicates that bargaining should continue

• Keep pressing the board for proposalsKeep pressing the board for proposals• Never say, "That is our final position Never say, "That is our final position

and we are not moving further"and we are not moving further"


• Request MediationRequest Mediation• It is more difficult for the board to declare It is more difficult for the board to declare

impasse when mediation is in progressimpasse when mediation is in progress• Once a mediator is involved, press the Once a mediator is involved, press the

mediator to continue sessionsmediator to continue sessions• Mediation needs a fair chance to workMediation needs a fair chance to work• But, mediation won’t prevent the employer But, mediation won’t prevent the employer

from declaring impasse and imposing its’ from declaring impasse and imposing its’ last offerlast offer

Breaking ImpasseBreaking Impasse

• Impasse can be brokenImpasse can be broken• Impasse is a temporary situation, as most Impasse is a temporary situation, as most

contracts eventually settlecontracts eventually settle• Duty to bargain continues even during impasseDuty to bargain continues even during impasse• Impasse is broken if there are changes in Impasse is broken if there are changes in

conditionsconditions• Once a there has been a significant change in Once a there has been a significant change in

conditions, duty to bargain becomes more conditions, duty to bargain becomes more urgenturgent

Never at ImpasseNever at Impasse

Mediation and FactFindingMediation and FactFinding



MediationMediation

• The The partiesparties have an affirmative duty to notify have an affirmative duty to notify MERC 60 days before a contract expires of MERC 60 days before a contract expires of the status on negotiations. (MCL 423.207)the status on negotiations. (MCL 423.207)

• Mediators are state employees who are Mediators are state employees who are assigned (not selected by parties) by MERC.assigned (not selected by parties) by MERC.

MediationMediation

• Mediators have no Mediators have no authority to force authority to force concessions on concessions on either party. (R either party. (R 423.121)423.121)

• "Information "Information disclosed by a party disclosed by a party to a mediator in the to a mediator in the performance of performance of mediation functions mediation functions shall shall NOTNOT be be divulged voluntarily divulged voluntarily or by compulsion.“ or by compulsion.“

(R 423.122)(R 423.122)

MediationMediation• Mediator does have Mediator does have

authority to designate authority to designate a date, time, and place a date, time, and place for mediation for mediation conferences. conferences.

• Failure to attend may Failure to attend may be a ULP!be a ULP!

MediationMediation

• Failure to participate in and/or allow Failure to participate in and/or allow adequate time for mediation may be a adequate time for mediation may be a ULP.ULP.• East Jordan Public Schools, East Jordan Public Schools, 1982 1982

MERC Lab Op 1101.MERC Lab Op 1101. Union committed Union committed ULP by going on strike after four ULP by going on strike after four bargaining sessions!bargaining sessions!

Impasse MediationImpasse Mediation

• Section 7A of PA 112 provides for an Section 7A of PA 112 provides for an additional form of mediation.additional form of mediation.

DO NOT AGREE TO SUBMITDO NOT AGREE TO SUBMITTO THIS "NEW" MEDIATION!TO THIS "NEW" MEDIATION!

Fact-FindingFact-Finding

• The union and/or employer may apply for The union and/or employer may apply for fact-finding; also the Commission can order fact-finding; also the Commission can order fact-finding on its own (R 423.131).fact-finding on its own (R 423.131).

• MERC appoints fact finders who are not state MERC appoints fact finders who are not state employees, but independent contractors. employees, but independent contractors.

• MERC will appoint a person from the panel MERC will appoint a person from the panel mutually agreed by the parties; mutually agreed by the parties; • if no such agreement, a list of three fact finders is if no such agreement, a list of three fact finders is

sent out and each party can strike one name.sent out and each party can strike one name.

Fact-FindingFact-Finding• The other side is The other side is

required to file an required to file an answer to the request answer to the request for fact-finding for fact-finding

(R 423.134)(R 423.134)

• Fact-finding Fact-finding hearings are public hearings are public (R423.136), as are (R423.136), as are the findings and the findings and recommendationsrecommendations

• A form is available A form is available to file for fact-to file for fact-finding. File a finding. File a request under R request under R 423.132 -133423.132 -133


• Fact-finding reports Fact-finding reports are not binding on are not binding on either side.either side.

• On rare occasions, the On rare occasions, the parties may agree, parties may agree, before the report is before the report is issued, that both will issued, that both will accept it as binding. accept it as binding.


• Once a petition for fact finding is filed Once a petition for fact finding is filed with MERC, the employer may not with MERC, the employer may not implement its last offer until at least 60 implement its last offer until at least 60 days after the fact finder’s report has days after the fact finder’s report has been issuedbeen issued

• But only if the board has engaged in But only if the board has engaged in good faith bargaining over the fact good faith bargaining over the fact finder’s report. finder’s report. • Remember Orion Twp case!Remember Orion Twp case!

Strikes by Public School EmployeesStrikes by Public School Employees



Two Elements of a StrikeTwo Elements of a Strike

• Some failure or refusal to perform all or part Some failure or refusal to perform all or part of the duties of employmentof the duties of employment

• For the purpose of inducing a change in For the purpose of inducing a change in conditions of employment or compensationconditions of employment or compensation

““Strike” = Partial WithholdingStrike” = Partial Withholdingof Servicesof Services

• Refusing to perform extra-duty work, even if Refusing to perform extra-duty work, even if voluntarily assumed, is a “strike” when: voluntarily assumed, is a “strike” when: • the work is routinely performed by the the work is routinely performed by the

bargaining unitbargaining unit• has become an accepted function of the job, has become an accepted function of the job,

andand• the refusal is for the purpose of influencing a the refusal is for the purpose of influencing a

change in wages and working conditionschange in wages and working conditions

““Strike” Includes ULP Job Actions Strike” Includes ULP Job Actions

• Before PA 112, ULP job actions enjoyed Before PA 112, ULP job actions enjoyed some legal protectionsome legal protection• MERC could, at its discretion order MERC could, at its discretion order

reinstatement of dismissed employees if the reinstatement of dismissed employees if the "strike" was precipitated by an employer's ULP.) "strike" was precipitated by an employer's ULP.) • Lamphere Schools v Federation of TeachersLamphere Schools v Federation of Teachers, ,

400 Mich 104, 117 (1977) 400 Mich 104, 117 (1977) • Under PA 112, an unfair labor practice Under PA 112, an unfair labor practice

strike is strike is illegalillegal for public school employees for public school employees only.only.

What Happens to Employees on What Happens to Employees on “Strike”“Strike”

• Section 2a of PERASection 2a of PERA• May be finedMay be fined• Employer must file notice with MERCEmployer must file notice with MERC• Notice must be served on union and Notice must be served on union and

membersmembers• Union and employees have ten days to Union and employees have ten days to

answeranswer• Hearings conducted quicklyHearings conducted quickly

What Happens to Employees on What Happens to Employees on “Strike”“Strike”

• Section 6 of PERASection 6 of PERA• Once employer disciplines or fires public Once employer disciplines or fires public

employee for engaging in strike, employee is employee for engaging in strike, employee is entitled to a hearingentitled to a hearing

• Request must be filed in writing with school board Request must be filed in writing with school board within ten days after employee’s regular pay has within ten days after employee’s regular pay has stoppedstopped

• School Board must render decision within 10 days School Board must render decision within 10 days after conclusion of hearingafter conclusion of hearing

• Decision may be appealed to local circuit court Decision may be appealed to local circuit court • Standard of review is limited Standard of review is limited

Duty of Fair RepresentationDuty of Fair Representation



Source of the DutySource of the Duty

• Implied duty arising through PERA - in Implied duty arising through PERA - in exchange for employees giving up their exchange for employees giving up their individual rights to bargain directly with individual rights to bargain directly with their employerstheir employers

Statement of the Duty Statement of the Duty

• GOOLSBY v CITY OF DETROIT (1984)GOOLSBY v CITY OF DETROIT (1984)• To serve the interests of all members To serve the interests of all members

without hostility or discriminationwithout hostility or discrimination• To exercise discretion with complete To exercise discretion with complete

good faith and honestygood faith and honesty• To avoid arbitrary conductTo avoid arbitrary conduct

Applicability of the DutyApplicability of the Duty

• Grievance ProcessingGrievance Processing• Contract NegotiationContract Negotiation• Internal Union AffairsInternal Union Affairs

Grievance ProcessingGrievance Processing

• Not every grievance must be Not every grievance must be submitted to arbitrationsubmitted to arbitration

• Union’s decision must be Union’s decision must be made without made without hostilityhostility or or discrimination, rationallydiscrimination, rationally and and in complete in complete good faithgood faith..

Grievance Time LinesGrievance Time Lines• Many DFR claims arise Many DFR claims arise

from the untimely from the untimely processing of processing of grievances.grievances.

• Every effort should be Every effort should be made to see that made to see that grievances are filed and grievances are filed and processed on a timely processed on a timely basis.basis.

Quality of RepresentationQuality of Representation

Unless decisions are made Unless decisions are made arbitrarily or in bad faith, arbitrarily or in bad faith, issues involving case issues involving case presentation, utilization of presentation, utilization of witnesses, evidence witnesses, evidence produced, brief writing, and produced, brief writing, and related matters rarely form related matters rarely form the basis of a DFR claim.the basis of a DFR claim.

Involve the GrievantInvolve the Grievant• drafting the grievancedrafting the grievance• gathering evidencegathering evidence• outlining the caseoutlining the case

Consider the grievant’s ideas even if they are ultimately rejected.

Explain why things are being done the way they are, especially if the grievance will likely be dropped before arbitration.

Merits of the GrievanceMerits of the Grievance

• The primary consideration in whether to The primary consideration in whether to file a grievance or take it to arbitration is file a grievance or take it to arbitration is the the meritsmerits of the grievance (likelihood of of the grievance (likelihood of success).success).

• Failure to file or arbitrate a meritorious Failure to file or arbitrate a meritorious grievance creates a likely situation for grievance creates a likely situation for the filing of a DFR claim.the filing of a DFR claim.

Other Legitimate ConsiderationsOther Legitimate Considerations

• Burden another grievance will place on the Burden another grievance will place on the contractual grievance machinerycontractual grievance machinery

• Amount at stakeAmount at stake• Cost of the processCost of the process• Desirability of winningDesirability of winning

• Use extreme caution if a meritorious Use extreme caution if a meritorious grievance might be dropped on the basis of grievance might be dropped on the basis of one of these secondary considerations!one of these secondary considerations!

Compromise and SettlementCompromise and SettlementTheoryTheory::• Union has the right to Union has the right to

compromise or settle a compromise or settle a grievance with or without grievance with or without an individual’s consentan individual’s consent

RealityReality::• Settlement without the Settlement without the

grievant’s consent is an grievant’s consent is an invitation to a DFR claim.invitation to a DFR claim.

Representing Non-MembersRepresenting Non-Members

• The union has a duty to fairly represent The union has a duty to fairly represent ALL members of the bargaining unit, ALL members of the bargaining unit, regardless of union membership status.regardless of union membership status.

NegotiationsNegotiations

• As a practical matter, the union is given As a practical matter, the union is given much broader discretion in bargaining much broader discretion in bargaining than in grievance processing.than in grievance processing.

NegotiationsNegotiations

• ““Inevitably, differences arise in the manner Inevitably, differences arise in the manner and degree to which the terms of the and degree to which the terms of the negotiated agreement affect individual negotiated agreement affect individual employees and classes of employees. employees and classes of employees. The mere existence of such differences The mere existence of such differences does not make them invalid. The complete does not make them invalid. The complete satisfaction of all who are represented is satisfaction of all who are represented is hardly to be expected...” hardly to be expected...” Ford Motor Ford Motor Company Company vv Huffman Huffman (1953) (1953)

Duty to InformDuty to Inform

While there is no duty to inform the general membership of progress in negotiations, or the terms of a TA, efforts along these lines are useful in avoiding subsequent DFR claims.

Advancing Interests of Identifiable GroupsAdvancing Interests of Identifiable Groups

• Union v IndividualsUnion v Individuals

• Member v MemberMember v Member

• Special Treatment of Special Treatment of Union OfficersUnion Officers

• Illegal Employer Illegal Employer ActsActs

Union v IndividualsUnion v Individuals

• The standard in negotiations is whether The standard in negotiations is whether the union’s actions were intended to the union’s actions were intended to achieve the greatest possible good for achieve the greatest possible good for the greatest number of members.the greatest number of members.

Member v MemberMember v Member• Can favor some members Can favor some members

over others where there is over others where there is a rational basis (seniority, a rational basis (seniority, education level, education level, qualifications, etc)qualifications, etc)

• Avoid irrational Avoid irrational discrimination!discrimination!

Special Treatment ofSpecial Treatment ofUnion OfficersUnion Officers

• Super seniority, special assignment Super seniority, special assignment rights, and other preferential treatment rights, and other preferential treatment of union officers should be handled with of union officers should be handled with care.care.

• Such treatment should be limited to that Such treatment should be limited to that necessary to carry out the functions of necessary to carry out the functions of the officer’s position.the officer’s position.

Duty to Prevent IllegalDuty to Prevent IllegalEmployer ConductEmployer Conduct

• Obscure case authority (very rare)Obscure case authority (very rare)• A union may have the affirmative duty, A union may have the affirmative duty,

through negotiations or otherwise, to prevent through negotiations or otherwise, to prevent an employer from acting illegally.an employer from acting illegally.

• Refer questions regarding the legality of Refer questions regarding the legality of bargaining demands or correction of other bargaining demands or correction of other illegal employer conduct to Legal Services.illegal employer conduct to Legal Services.

Internal Union AdministrationInternal Union Administration

• The constitution and bylaws of the local, The constitution and bylaws of the local, state, and national organizations state, and national organizations constitute a “contract” between the constitute a “contract” between the membership and the organizations.membership and the organizations.

• Violation of those procedures to the Violation of those procedures to the detriment of one or more members may detriment of one or more members may result in litigation seeking damages and result in litigation seeking damages and equitable relief.equitable relief.

DFR ClaimsDFR Claims

• File either in circuit File either in circuit court OR as a ULP court OR as a ULP charge with MERCcharge with MERC

• Six-month statute of Six-month statute of limitationslimitations

• Members must Members must exhaust union exhaust union remedies firstremedies first

Damages and RemediesDamages and Remedies

Legal RemediesLegal Remedies::• back payback pay• front payfront pay• consequential consequential

damages (e.g., job damages (e.g., job search costs)search costs)

• attorney feesattorney fees

Equitable RemediesEquitable Remedies::• reinstatementreinstatement• seniority awardsseniority awards• assignment or assignment or

transfertransfer

Bargaining and the Law:Bargaining and the Law:Legal Basic for Local Leaders Legal Basic for Local Leaders

Thank you!Thank you!

bargaining and the law: legal basic for local leaders

Documents

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