(3) Prohibited Subjects

Michigan law specifically prohibits certain subjects from being included in collective bargaining agreements and provides that if these subjects are included, they are unenforceable. According to the law:

Jeff Steinport: “Looking back, there are a few things I wish I would have known or had a better understanding of. There is a list of things that are not bargainable. I think that would be something that any school board member would benefit from knowing. ...


“School boards do a poor job of distinguishing between prohibited and permissive subjects of bargaining. I’d say that most board members would look at you like you’re from Mars if you brought up the subject.”

"Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:

(a) Who is or will be the policyholder of an employee group insurance benefit. This subdivision does not affect the duty to bargain with respect to types of benefits and coverages for employee group insurance. A change or proposed change in a type or to a level of benefit, policy specification, or coverage for employee group insurance shall be bargained by the public school employer and the bargaining representative before the change may take effect.

(b) Establishment of the starting day for the school year and the amount of pupil contact time required to receive full state school aid. …

(c) Composition of site-based decision-making bodies established [under Michigan law]. …

(d) The decision of whether or not to provide or allow interdistrict or intradistrict open enrollment opportunity in a school district or of which grade levels or schools in which to allow such open enrollment opportunity.

(e) The decision of whether or not to act as an authorizing body to grant a contract to organize and operate one or more public school academies … or the granting of a leave of absence to an employee of a school district to participate in a public school academy.

(f) The decision of whether or not to contract with a third party for one or more noninstructional support services; or the procedures for obtaining the contract; or the identity of the third party; or the impact of the contract on individual employees or the bargaining unit.[vi]

(g) The use of volunteers in providing services at its schools.

(h) Decisions concerning the use of experimental or pilot programs and staffing of experimental or pilot programs and decisions concerning the use of technology to deliver educational programs and services and staffing to provide the technology, or the impact of these decisions on individual employees or the bargaining unit.

(i) Any compensation or additional work assignment intended to reimburse an employee for or allow an employee to recover any monetary penalty imposed under this act."[84]

The outsourcing of noninstructional services, subsection (f) in the statute, is growing in popularity as a means to cut costs. According to a 2006 Mackinac Center survey of all but one of the 552 conventional public school districts in Michigan, 37.8 percent of Michigan school districts are outsourcing food, janitorial or busing services, up from 34 percent in 2003.[85] As noted, however, one such move in Muskegon County prompted a call for boycotts of businesses employing school board members.

Outsourcing does not affect only union members engaged in food, transportation or custodial services. The Ypsilanti Public Schools, for example, estimated that they could save more than $130,000 in health insurance and other benefit costs by privatizing the district’s top three administrative positions.[86]

The statutory list does not include every prohibited subject. For example, it would be impermissible to include a term in a collective bargaining agreement that bargained away a federal employment right, such as prohibitions on discrimination contained in the federal Civil Rights Act of 1964.[87]

[vi] Note: This section pertains only to noninstructional positions. See St. Clair County Intermediate Sch. Dist., MERC C99 I-16: “The legislature did not alter the status of subcontracting as a mandatory subject of bargaining with regard to instructional services.”

Helen Chrispell: “They’ve had big articles in the paper where they say, ‘We’re the community, don’t take our jobs,’ and we haven’t done any more than ask the superintendent to get bid specifications so if we did put it out there, everyone would be bidding on the same thing.”


Jeff Steinport: “A school district needs to concentrate on education, not bus maintenance or cutting the grass.”