At least 77 school districts — 60 percent of those surveyed that are subject to the 2011 bargaining reforms — had teacher contracts that contained language that could be interpreted to be prohibited by Public Act 103. Of these, at least 11 stated in the contract that the prohibited language would immediately take effect if the 2011 reforms were ever overturned or reversed. These districts are listed in Graphic 2.

Graphic 2: Sample of Agreements to Reinstate Language Prohibited by Public Act 103

School District

Language

Allen Park

“Should the law that determined these prohibited subjects be found unconstitutional, or as nullified through the Protect-Our-Jobs ballot initiative, then these provisions shall become immediately enforceable.”[19]

Avondale

“Should a court or administrative agency of competent jurisdiction issue a decision that all or part of [PA] 103 is unconstitutional or otherwise not legally effective, then those provisions set forth below ... shall immediately be in full force and effect …”[20]

Bay City

“If a court or agency of competent jurisdiction concludes by January 31, 2017 that PA 103, in whole or in part, is unlawful, then the lawful provisions revert back to the Master Agreement and are enforceable to Teachers.”[21]

Berkley

“Should a court or administrative agency of competent jurisdiction issue a decision that all or part of PA 103 is unconstitutional or otherwise not legally effective, then those provisions … shall immediately be in full force and effect …”[22]

Chippewa Hills

“[I]f PA 103 is amended or a competent appellate court of appropriate jurisdiction concluded that (1) PA 103 in [sic] unenforceable, in whole or part … then the passage(s) encompassed by such a court opinion shall be enforced as currently provided in the CBA.”[23]

Crestwood

“Should a court or administrative agency of competent jurisdiction issue a decision that all or part of PA 103 is unconstitutional or otherwise not legally effective, then those provisions set forth below that were not enforceable ... shall immediately be in full force and effect ...”[24]

Fitzgerald

“Should future legislative action, court decision, or voter initiative make bargaining of the below articles permissible for all teachers, including tenured teachers, or allow the rights of ancillary member [sic] in this contract to be bargained for all teachers, including tenured teachers than [sic] that language and these articles shall take immediate effect and apply to all teachers …”[25]

Fruitport

“This language remains within this document should the related legislation be reversed. Additionally, there may be instances where this language could guide decision making in the event that all other means for decision making have been exhausted, and/or may have direct impact on some non-teaching FEA members.”[26]

Grand Haven

“In the event that…all or part of [Public Acts 102 and 103] are repealed or modified, or should [the “Protect-Our-Jobs” ballot initiative] be adopted in November 2012 then the applicable portions of the omitted and/or modified language ... shall be reinstated into the CBA.”[27]

Hastings

“The parties have agreed that if, due to changes in law or based on an unappealed decision from a court of competent jurisdiction, the removed language item(s) shall become effective as an enforceable part of the bargaining agreement immediately."[28]

L'Anse Creuse

"In the event Public Act 103 is repealed or amended or declared illegal, unconstitutional or enforceable for any reason, the provisions of the parties agreement that are now inapplicable to those placed in positions requiring certification will again become applicable to such bargaining unit members."[29]

This particular practice raises an important question: Are districts technically still bargaining over these prohibited subjects when they agree to allow them to take immediate effect in the event of some future change in the law? Language promising to act in the future seemingly implies that the district and union reached some sort of agreement concerning policies that Public Act 103 makes illegal subjects of bargaining.

A more common way districts attempted to deal with Public Act 103 was to continue to include language pertaining to the prohibited subjects in the contract, but then note that these provisions only apply to a certain group of “teachers.” Public Act 103 specified that districts were prohibited from bargaining over policies that pertained to employees whose employment was regulated by the Teachers’ Tenure Act — in other words, classroom teachers.[30] The typical teachers union contract, however, also applies to employees who are not teachers — most commonly school social workers, psychiatrists, therapists and librarians.

In most cases, contracts were changed by simply replacing the word “teacher” with “ancillary staff,” “non-certified professional staff,” or some other term to distinguish employees whose employment is regulated by the Teachers’ Tenure Act and those whose is not. The rest of the language, in most cases, remained completely unchanged.

The Midland Public Schools contract provides an example of this tactic. It highlights in yellow certain language judged to be prohibited by the 2011 reforms. In a note at the end of the contract’s preamble, the contract states, “[T]he provisions of this agreement that are highlighted in the successor agreement apply only to the following members of the bargaining unit: Social Workers, Psychologists, and Therapists.”[31]

The Gull Lake school district contract is similar. The contract makes no mention of Public Acts 102 or 103, but does note that some policies only apply to certain employees. The language in the contract that would probably be considered a prohibited subject of bargaining under the 2011 reforms applies only to the “non-teaching professional staff member.” When the contract is referring to a permissible subject of bargaining, the group of employees discussed are “teachers.”[32]

The Trenton school district’s approach to implement the 2011 reforms is similar but less clear. It maintains language in the main text of the contract that bases teacher layoffs strictly on seniority — what would appear to be a clear violation of Public Act 102.[33] Not until 50 pages later, in a “letter of understanding,” does the reader learn that the layoff section “…appl[ies] only to bargaining unit members who are not subject to the Michigan Teacher Tenure Act.”[34]

Clearly, this letter of understanding is extremely important to fully understand the Trenton district’s actual policy on personnel decisions, as it attempts to completely alter language as it exists in the main section of the contract.

A sample of 45 contracts that used similar strategies while attempting to conform to the 2011 reforms is provided in Appendix B.

School districts dealt with the implications of the 2011 reforms in other ways. Some contracts left the prohibited language in place, but italicized, highlighted or struck it through. Some noted that the edited language was not enforceable, while others gave no explanation for why this particular language was modified in this way.[35] Others moved language pertaining to these prohibited subjects of bargaining to a separate appendix or “letter of agreement,” and then added a note that the language contained in those sections is prohibited.[36] Most of the actual language remained unchanged. A sample of these cases are provided in Appendix C.

Attempting to implement the 2011 reforms in this manner raises some additional questions. For example, are districts still technically bargaining over these prohibited subjects when they leave this language in the contract, even if they set it off with highlights or move it into a separate section? Since the contract is only valid if it is approved by both the school board and the union, is the union actually approving of the language that is supposed to be prohibited?

Regardless of whether this is technically bargaining or not, school districts that maintain language pertaining to prohibited subjects of bargaining are creating confusion for both school administrators and teachers who must abide by the contract. It would be relatively easy for someone to mistakenly assume that the highlighted or italicized language that appears in the contract is still in effect.

Further, some district’s disclaimers are unclear about the implications of the new prohibited language. Take Plymouth-Canton’s 2011-2012 contract, for example. The title page of the contract contains this statement: “The shaded areas are the employers’ interpretation of the letter of understanding regarding Public Act 103 and does not reflect an agreement of the parties.”[37]

To the lay reader, and especially someone unfamiliar with Public Act 103, this statement does not appear to provide any indication that “shaded areas” are in fact prohibited subjects of bargaining and that district officials have full discretion over practices related to those topics. More than 70 paragraphs of the Plymouth-Canton contract are shaded in gray, including two entire pages.

Finally, some contracts imply that the district will continue to abide by the policies outlined that the 2011 reforms attempted to change, despite the law and despite these provisions being prohibited subjects of bargaining. The West Branch-Rose City contract, for example, includes a separate section containing prohibited subjects of bargaining, but labels that section: “Informational items-informational only: not bargained.”[38] However, the teacher observation instrument and professional development plan included for informational purposes in 2012 is exactly the same as those presumably bargained over in the 2010 contract.[39] Fruitport Community Schools’ contract identifies prohibited language with italics, and a note on the district’s collective bargaining agreement states that “…there may be instances where this language could guide decision making in the event that all other means for decision making have been exhausted…”[40]