Prohibited subjects of bargaining are those subjects that, if included in a collective bargaining agreement, are unenforceable as a matter of law. For instance, a right protected under federal or state law cannot be bargained away in an agreement.47 Though the courts and administrative agencies have rendered few decisions defining prohibited subjects of bargaining, a general guideline is that an agreement cannot contain a topic which has been determined by law to be either the sole responsibility of one party or else illegal under federal or state law.48
A 1980 MERC decision provides an example of the latter situation. Grand Rapids teachers faced a mandatory assessment requiring the payment of a fee to a teachers' assistance program fund. MERC determined that the fund was being used to support teachers during strikes which were illegal under PERA, and so ruled the assessment a prohibited subject.49
Prohibited subjects of bargaining should never be included in collective bargaining agreements; unfortunately, many contracts throughout the state nevertheless contain them. Few public employees and school officials are knowledgeable enough to recognize which clauses in a collective bargaining agreement are prohibited and unenforceable by law, and consequently, they can be easily misled. For example, MEA official Terry Cox insisted to one district that a prohibited subject of bargaining must remain in the contract, leaving readers of the agreement with the impression that those provisions were enforceable (see Exhibit 1).
Although there are many prohibited subjects of collective bargaining, the following are prohibited under PA 112 of 1994:
Who is or will be the policyholder of any employee group insurance benefit;
Establishment of the starting day for the school year and the amount of pupil contact time required to receive full state aid;
Composition of site-based decision-making bodies;
Decisions involving intra- or interdistrict open enrollment;
Authorization of contracts to organize and operate public school academies (charter schools);
Decisions to contract noninstructional support services;
Decisions involving use of experimental programs and staffing;
Decisions involving use of technology to deliver educational programs and staffing to provide the technology, and the impact of these decisions on individual employees and bargaining units;
Use of volunteers to provide school services; and
Additional compensation or work assignments intended to reimburse an employee for any monetary penalty imposed under PA 112.50
School boards should perform a careful review of all collective bargaining agreement language to insure continuing compliance with the law and applicable court decisions. An experienced labor relations specialist or labor attorney can provide a thorough, section-by-section contract analysis.