II. Bargaining Collectively Under Michigan Law

The ultimate goal of collective bargaining, as has often been noted by the courts, is to have employment relations set by mutual agreement arrived at through good-faith negotiations, rather than strife.[35] Established case law, for example, states, "Generally, ‘[w]hen parties bargain about a subject and memorialize the results of their negotiation in a collective bargaining agreement, they create a set of enforceable rules — a new code of conduct for themselves — on that subject.’"[36]

While simple in concept, collective bargaining under Michigan law is a complex web of objective requirements set by statute and subjective interpretations made by MERC and the courts. There is no constitutional right of public employees to bargain collectively with their employer.[37] For example, PERA is not applicable to state employees in the state-classified civil service.[38] It is instead the policy choice of the state of Michigan to grant the legal right to organize to certain groups of public employees, such as educators. In this approach, Michigan is not unique. Hess and West sum it up:

"According to NEA researchers, 34 states and the District of Columbia currently have laws obligating districts to engage in collective bargaining with organized teachers. Eleven more states have laws providing for ‘permissive collective bargaining rights at the discretion of the employer,’ while Georgia and South Carolina have no specific laws protecting or denying collective bargaining for teachers. In three states — North Carolina, Texas, and Virginia — state law explicitly stipulates that districts may not collectively bargain."[39]

As noted, bargaining collectively in Michigan is subject to PERA and the interpretations of it by the state courts and by MERC. While not controlling, precedent generated by the National Labor Relations Act is used by MERC to implement PERA. However, for the NLRA to influence the interpretations of PERA, both cases must be based on similar facts and circumstances.[40]

While PERA contains the framework by which collective bargaining is conducted, PERA does not create or force agreements.[41] It is, instead, a statute designed to allow school boards and district employees — by way of their union representatives — the opportunity to consider their own unique needs and situations and determine through rational discourse what terms should constitute the employment contract.

As discussed further in Section IX, it is important to keep in mind that bargaining is mandated only "in respect to rates of pay, wages, hours of employment or other conditions of employment."[42] In other words, not everything the school board does must be arrived at through collective bargaining. School boards are entitled to establish their own education policies, so long as they do not involve these mandatory subjects of bargaining that must be either negotiated to conclusion or waived from bargaining by the union.[43] However, to maintain a broad management prerogative, and to avoid any confusion, it is best that boards also affirmatively set forth the rights of management in the collective bargaining agreement.[44]

Henry Saad: “You have to see everybody as being a participant in the process, and you hope that everybody deals with it constructively. You’re going to run into people who don’t on both sides.”

It should be pointed out that while PERA and MERC hold jurisdiction over disputes involving labor practices, they were not designed to govern routine disputes over what a contract says or means. According to MERC:

"[T]he Commission has held that an alleged breach of contract is not an unfair labor practice unless a party has ‘repudiated’ the collective bargaining agreement or collective bargaining relationship. Repudiation exists when (1) the contract breach is substantial, and has a significant impact on the bargaining unit, and (2) no bona fide dispute over interpretation of the contract is involved. Repudiation can be found where the actions of a party amount to a rewriting of the contract or a complete disregard for the contract as written."[45]

Thus, if a disagreement arises over the terms of a collective bargaining agreement, the proper way to resolve the dispute is in contract law, either through the courts or the mechanisms spelled out in the agreement, such as arbitration. Only where the parties actually reject the contract does MERC have jurisdiction to resolve the dispute.

Where the provisions of PERA stand in direct conflict with other Michigan law, PERA will be the law controlling the dispute in order "to ensure uniformity, consistency, and predictability in the critically important and complex field of public sector labor law."[46] So, for example, in deciding whether a teacher who participated in an illegal strike was entitled to a hearing before being disciplined, as required by the Teacher Tenure Act,[47] or after discipline, as PERA allows, PERA has been deemed the relevant law.[48] Likewise, a suit brought in general court against a teachers union for damages that arose out of an illegal strike was superseded by PERA, which provides for MERC process and specific penalties in the event of a strike.[49] However, where PERA is only incidentally related to the workings of another statute — such as where a union uses the Freedom of Information Act to obtain government documents to support its position in labor negotiations — PERA does not control.[50]

Nearly all Michigan public employees are permitted to organize collectively into bargaining units. School teachers, principals, coordinators, librarians, physical education directors, custodians, bus drivers and cafeteria workers are all examples of employees who may organize collectively.[51] However, the associations representing educators are usually the largest and most influential bargaining units. Hence, a school board seeking contract change will usually need to first convince the educators association, and the other units will often follow suit.

The fact that there are multiple bargaining units can work against a school board. The sense that all employees should be treated equally, especially as to benefits, puts pressure on a board to offer uniform benefits, regardless of employee education, skills or market demand. This frequently means upgrading a bargaining unit’s benefits, often without any concession in another area.

PERA, unlike federal labor law, allows for supervisory employees to organize, with the caveat that they may not be included in the same bargaining unit as the nonsupervisory employees.[52] Only confidential or executive employees may be excluded from being organized into a bargaining unit. According to MERC:

"PERA does not include a definition of a confidential employee. However, we have defined a ‘confidential employee’ as one who formulates, determines, and effectuates management policy with regard to labor relations and collective bargaining, as well as an individual who assists and acts in a confidential capacity to such a person. Access to budget or financial information is not sufficient to establish confidential status. ... To allow public employers to have an employee available to directly assist in the preparation and handling of bargaining proposals during negotiations, this Commission has always permitted public employers to exclude one nonsupervisory employee from inclusion in collective bargaining units as a confidential employee. However, the employer bears the burden of showing justification for excluding additional employees as confidentials, and administrative convenience alone cannot justify their exclusion."[53]

Alleged violations of PERA must be raised within six months.[54] The limitations period under PERA commences when the charging party knows or should have known of acts constituting an unfair labor practice and has good reason to believe the acts were improper or performed in an improper manner.[55]

The decisions of MERC may be appealed to the Michigan Court of Appeals or the Michigan Supreme Court. In reviewing appeals, MERC’s factual decisions are deemed conclusive if they are supported by "competent, material, and substantial evidence on the record considered as a whole."[56] MERC’s legal conclusions "may not be overturned unless they violate the constitution, a statute, or are grounded in ‘a substantial and material error of law.’"[57] However, "in contrast to the MERC’s factual findings," its legal rulings are "afforded a lesser degree of deference" and reviewed in their entirety.[58]

Bargaining, of course, varies from district to district but generally begins with preliminary discussions, usually in early spring for a contract that expires in August. At this stage a school board must assemble the data it will need to create a budget, which in large measure will dictate the positions it must take in contract negotiations. Active bargaining with the union follows thereafter, with contract execution in late summer. Underpinning the entire process is the concept of "good faith."