Public employers and employee bargaining representatives are required to bargain in good faith. The parties' duty to bargain, however, extends only to "mandatory" subjects of bargaining, which concern wages, hours, and other terms and conditions of employment.
In 1947, the Michigan Legislature passed the Public Employment Relations Act (PERA),100 which allowed public-sector employees for the first time to organize and enter into collective bargaining agreements. PERA today remains the principal statute governing disputes involving public-sector labor organizations and government employers, including Michigan public school districts.
Section 48 of the Michigan constitution authorizes the legislature to "enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service."101 PERA attempts to fulfill this goal in ways similar to the NLRA. Labor disputes involving public-sector unions and employers are decided by the Michigan Employment Relations Commission102 (MERC), an administrative body similar to the NLRB. Both MERC and the Michigan courts typically look to NLRB case decisions to interpret those sections of PERA that are similar to the NLRA.103
Public-Sector Employee Rights under PERA
Section 9 of PERA establishes employee legal rights for Michigan public-sector employees in language comparable to Section 7 of the NLRA, which describes the legal rights of private-sector workers. Section 9 of PERA states as follows:
It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.
PERA defines a public employee to be
a person holding a position by appointment or employment in the government of this state, in the government of one or more of the political subdivisions of this state, or in the public school service, in a public or special district, in the service of an authority, commission, board, or in any other branch of the public service.104
Courts have construed this definition to include both tenured and non-tenured teachers105 as well as paid student interns working at state universities.106 However, court cases have consistently held that PERA does not cover state classified employees subject to the Civil Service Commission's jurisdiction.107 (The Civil Service Commission instituted a separate system of compulsory unionism for state employees in 1980, which operates similarly to PERA.108 )
Similarities between PERA and the NLRA
There are other sections of PERA besides Section 9 that are closely modeled after the language of the NLRA.
Those activities listed as employer unfair labor practices under PERA are essentially identical to the unfair labor practices described in sections 8(a)(1)-(5) of the NLRA.109 PERA states, for example, that it is unlawful for a public employer or its officers or agents to
interfere with public employees in their exercise of their Section 9 rights;
dominate or interfere with the formation or administration of any labor organization;
discriminate in regard to hiring, terms, or other conditions of employment in order to encourage or discourage employee participation in a labor organization;
discriminate against an employee for testifying or initiating proceedings under PERA; and
refuse to bargain with the employee bargaining representative.
Under PERA, unions are also capable of committing unfair labor practices just as they are under the NLRA. The relevant language in PERA is nearly identical to section 8(b)(1)-(3) of the NLRA.110 It is unlawful under PERA for a labor organization to
restrain or coerce public employees in the exercise of their Section 9 rights or public employers in the selection of their representatives for collective bargaining or adjustments of grievances;
cause or attempt to cause a public employer to discriminate against a public employee; and
refuse to bargain collectively with a public employer.
Many other provisions of PERA mirror the NLRA in their language and their effects. Following are further examples that demonstrate the similarities between Michigan public-sector labor law as defined by PERA and the federal private-sector labor policies wrought by the NLRA:
Union representation elections under are called when individual employees or labor organization can show that 30 percent or more of the public employees within the proposed bargaining unit have expressed an interest in a union representative and the employer refuses to recognize the representative.111
Public employers may request a union election if more than one individual or labor organization is claiming to be the employees' bargaining representative.112
Union representation elections are barred for a 12-month period after a valid election has been held or for a maximum of three years if a valid collective bargaining agreement is already in effect.113
Unfair labor practice charges must be filed within six months; complaints that are filed later than six months are time barred.114
Remedies for employer unfair labor practices committed against employees may include cease-and-desist orders, reinstatement of an unlawfully discharged employee, sometimes with back pay. Back pay is awarded "as will effectuate the policies of [the] act."115 Reinstatement is not available when an employee's discharge was for good cause.
Public employees facing discipline or discharge for allegedly unlawful strike activity are entitled to make a written request of the governmental employer within 10 days of being disciplined or discharged for a determination of whether their conduct actually violated PERA. Within 30 days after the employer's final determination has been made, aggrieved employees have the right to have that determination reviewed by the circuit court to judge whether the decision is supported by sufficient evidence.
Distinctions between PERA and the NLRA
PERA and the NLRA share many similarities, but there are also important differences between the two statutes.
One of the most significant differences is that PERA prohibits employee strikes and employer lockouts. This affects the collective bargaining rights of employees who fall under PERA, since they are not free to use strikes as a way to achieve concessions from their employer—that is, the public. PERA defines a strike as a willful absence or failure to perform work in order to influence the terms and conditions of employment. The fact that PERA defines a strike according to the strikers' motives is an important difference from the NLRA, which does not include intentions as part of its definition. This distinction underscores the point that government employees are more restricted in their strike activity than are their private-sector counterparts.
PERA's definition of strikes also makes special distinctions for public school employee strikes, which involve a willful absence or work stoppage in protest of an unfair labor practice committed by the public school employer. Public school employees who strike despite PERA's anti-strike provisions each suffer a loss of pay for any full or partial day of striking activity, and this is repeatedly emphasized throughout the act.116 Similar penalties are levied against public school employers who lock out public school employees.117
PERA's complex system to prevent public-sector strikes, including expedited methods to detect when strikes (including "sick-outs") have occurred,118 is designed to curb the exceptional power and influence wielded by public-sector unions. An example of this power and influence is the near-monopoly that public employee unions hold in the education market, where they represent the vast majority of Michigan's public school teachers. Partly because there are relatively few private schools to offer consumers alternatives to the public school system, these public-sector school employee unions face little competitive pressure to moderate their demands. Public school employee unions accounted for nearly 75 percent of public-sector union strikes from 1965 to 1988.119
Another key difference between PERA and the NLRA is that unlike the NLRA, PERA allows supervisory employees to organize into labor unions. However, supervisors cannot be included in the same bargaining unit as other non-supervisory employees.120 The only limit on supervisors' right to organize is placed on supervisors who are considered "confidential" employees. Confidential—or executive—employees are not permitted to form a union under PERA when they "formulate, determine and effectuate confidential labor relations policies at the highest level of a public employer."121 This limit is placed on public-sector supervisors because "there could be no effective collective bargaining on the part of the employer as there would be no employee to administer legislative policy."122 Perhaps more importantly, however, is that confidential employees must be accountable to the public: They are bargaining on behalf of the taxpayers and are obliged to act accordingly.
When deciding public-sector labor disputes, MERC and the Michigan courts normally apply NLRB precedents to PERA cases. Occasionally, NLRB precedents may be inapplicable to particular disputes because of PERA's prohibitions against strikes and lockouts. Michigan courts generally follow NLRB precedent when considerations regarding the power to strike are not the only rationale of a precedent and the balance of power between union and employer would not be dramatically affected in a non-strike setting.123
The Duty to Bargain in Good Faith under PERA
Public employers and employee bargaining representatives are required to bargain in good faith under Section 15 of PERA: Failure by either party to bargain in good faith is an unfair labor practice. The parties' duty to bargain, however, extends only to "mandatory" subjects of bargaining, which are those subjects that concern "wages, hours, and other terms and conditions of employment."124 All other subjects that may be legally bargained over when both parties agree to do so are known as "permissive" subjects. Both parties are obligated to negotiate mandatory subjects of bargaining until they either reach an agreement or impasse. Disputes regarding permissive subjects may not be taken to impasse.
In 1994, the Michigan Legislature revised Section 15 of PERA to remove certain subjects from the scope of negotiation between public school employers and unions.125 These prohibited subjects of bargaining are those which concern matters reserved strictly to the unilateral decisions of public school employers. Examples include the following:
who is or will be the policyholder of any employee group insurance benefit;
establishment of the starting day for the school year;
composition of site-based decision-making bodies;126
decisions regarding whether to allow inter- or intradistrict open enrollment;
decisions to operate a public school academy (charter school)127 or grant a leave of absence to district employees who wish to participate in establishing a public school academy;
decisions to contract with third parties for noninstructional services, the procedure for obtaining third party contracts, the identity of the third parties, and the impact of such contracts on the bargaining unit;
use of volunteers to provide services at a school;
use of pilot programs and decisions regarding the use of technology; and
additional compensation or work assignments intended to reimburse employees for any monetary penalty imposed on them under PERA.
By placing these bargaining subjects solely under the decision making authority of school districts, the legislature has provided public school employers with greater flexibility to meet the challenges of an increasingly competitive public school marketplace.
Mediation and Arbitration under PERA and Public Act 312
Procedures for avoiding public-sector labor disputes entirely or settling them quickly when they do occur are two dominant themes in PERA. PERA requires both parties to a collective bargaining agreement to notify MERC of the status of negotiations 60 days before the expiration of their current agreement. During this time, the employer, the local union bargaining agent, or a majority of employees may request mediation by MERC. If a dispute is unresolved 30 days after the parties have notified MERC and no request for mediation has been received, MERC will appoint a mediator to the dispute.
PERA provides further mediation to avert labor disputes between public school employers and employees.128 If both parties agree that impasse has been reached during their negotiations, additional mediation efforts may be employed as follows: The employer and the bargaining representative each appoint an individual to represent their interests. Together, these two representatives select a neutral mediator. The two representatives meet with the mediator and attempt to recommend a settlement within 30 days. If one or both of the parties fails to accept a recommended settlement within the 30-day time limit, the employer may implement its last offer of settlement made before impasse occurred.
Section 17 of PERA, added in 1994, states that final approval of a public school collective bargaining agreement cannot hinge on the assent of the larger parent union of the employees' local affiliate. Once the public school employer and local bargaining agent agree to a collective bargaining agreement, PERA prohibits a parent bargaining representative or educational association from vetoing a collective bargaining agreement reached by the employer and the public school employees' local bargaining unit.129
Another statute related to public-sector collective bargaining, Public Act (PA) 312, applies to employees in police and fire departments. PA 312 provides for compulsory arbitration130 for labor disputes arising out of contract negotiation and formation, if mediation efforts fail to resolve them. Due to the overlapping nature of PERA and PA 312, the courts have ruled that they are to be read together; however, there are some important differences between the two statutes.131 For example, the duty to bargain in good faith and impasse requirements are not employed in PA 312 arbitration and employers are not entitled to impose the last offer of settlement before impasse was met. Furthermore, resort to impasse is only available for resolving contract negotiations; it cannot be used to process grievances regarding interpretations of an existing contract.