Michigan law requires that a local board of education negotiate collective bargaining agreements with the exclusive bargaining agents of the district’s employees — that is, the district’s employee unions. In particular, Michigan law mandates that the local board bargain over the terms and conditions of employment, such as salary and vacation pay.
Under the law, the boards and unions may also bargain over many other issues, such as the district’s employee recruiting standards. Such issues are commonly referred to as “permissive” subjects, which have been defined by the Mackinac Center’s Thomas W. Washburne and Michael D. Jahr as “[t]hose subjects of bargaining that are not considered mandatory but are not otherwise prohibited [by law]. ...”[xxxii]
Local school districts may not, however, bargain over issues that the Michigan Legislature or the state courts have deemed to be “illegal” or “prohibited.”[xxxiii] The most important recent legislation concerning these prohibited topics is Public Act 112 of 1994. This law banned, among other items, bargaining over the issue of privatization of “noninstructional” services.[xxxiv] The relevant section follows:
“(3) Collective bargaining between a public school employer and bargaining representative of its employees shall not include any of the following subjects: ...
(f) The decision of whether or not to contract with a third party for 1 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.”
In other words, the decision to privatize food, bus or custodial services cannot be protested at the bargaining table by, for instance, the teachers union; the decision is left to the local school board alone.
There are few legal judgments interpreting this provision. One question that frequently arises is whether an existing collective bargaining agreement with a noninstructional services union must be honored before contracting can begin.
The answer is unclear. It can be plausibly argued that both the legislative history of the act and the prior case law demonstrate that the Legislature meant to allow school boards to contract at will with private firms for noninstructional services, even in the middle of a collective bargaining contract with public employees for those services.[xxxv] At the same time, it can also be plausibly argued that even if this broader power was the Legislature’s subjective aim at the time, lawmakers produced language in Public Act 112 that firmly indicated the contrary. Under this view, although the act prohibits collective bargaining over the decision to contract noninstructional services with a private firm, the act does not in any way prohibit public employees from providing those noninstructional services. Hence, a contract with public employees for the provision of noninstructional services is legal (insofar as the contract deals with the basic terms of employment[xxxvi]) and cannot be ignored.
School districts seeking to contract services during the term of a collective bargaining agreement with the relevant noninstructional services union should seek legal counsel. Regardless, it seems clear that as long as existing agreements with noninstructional service employee unions are honored to their conclusion, a school board is free to contract for the provision of a noninstructional service. The contracting process and its impact on union employees need not — and in fact cannot — be collectively bargained.
[xxxii] Thomas Washburne and Michael Jahr, " A Collective Bargaining Primer for Michigan School Board Members." (Mackinac Center for Public Policy, 2007). Readers interested in a more detailed discussion of mandatory, permissive and prohibited subjects of collective bargaining in Michigan school districts should see Pages 15-20 of that primer.
[xxxiii] For a list of prohibited topics, see MCL §§ 423.215(3)(a)-(i).
[xxxiv] The law also established new penalties for public employees and their unions if they engage in a strike (public-sector strikes are illegal under Michigan law).
[xxxv] For instance, State Sen. Mike Prusi of Michigan’s Upper Peninsula told The (Marquette) Mining Journal in May 2007, “Right now, a school can basically terminate an agreement with their employees and outsource the work if someone underbids the contract.” See Sam Eggleston, “Critics Knock Prusi Bill,” The (Marquette) Mining Journal, May 7, 2007. Sen. Prusi has introduced legislation that would strike out the provision of the law quoted above.
[xxxvi] If, however, a bargaining agreement contained a provision that did not pertain to the employment relationship — for example, a provision that barred the school district from establishing procedures for competitively contracting noninstructional work — this provision would not be enforceable, since it would involve a prohibited subject of bargaining.