Court of Appeals Broadly Interprets Prohibited Subjects in Latest Decision

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Aug. 19, 2015

Last month, the Michigan Court of Appeals shed more light on how it believes school districts and unions ought to respond to the 2011 changes to the prohibited subjects of bargaining within the Public Employee Relations Act. The Court issued a decision in favor of Ionia Public Schools, which had argued that it could not bargain over expired contract language that called for a bid-bump meeting to determine teacher assignments.

How long does it take to figure out what the Legislature intended?

About four years, at least in the case of this prohibited subject. In 2011, the Michigan Legislature added a number of prohibited subjects of bargaining to PERA, including Subsection (j), which stated that unions and districts could no longer bargain over, “[a]ny decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit” MCL 423.215(3)(j). The following year, the Ionia Education Association filed an unfair labor practice charge against the district when it refused to hold the bid-bump meeting as called for in the district’s expired collective bargaining agreement. The Administrative Law Judge agreed with the district and dismissed the ULP. The union then appealed to the Michigan Employment Relations Commission, which agreed with the ALJ decision and dismissed the union’s ULP. The union appealed again, this time to the Michigan Court of Appeals.

What did the union argue?

The union argued that Subsection (j) should be interpreted narrowly and that the Legislature only intended to say that there should be no bargaining over placement of individual teachers, but that districts and unions should still bargain over the general process of how teachers are assigned.

What did the Court say?

The Court primarily relied on the wording of PERA itself to conclude that, “the Legislature intended to prohibit an employer from bargaining over any decision, including policies or procedures such as the bid-bump procedure, with regard to teacher placement. The plain language of the statute gives broad discretion to public school employers to make ‘[a]ny decision,’ i.e., every or all decisions, ‘unmeasured or unlimited in amount, number or extent,’ regarding or concerning teacher placement.”

What does this mean for negotiations?

It means that school districts should take care not to propose or accept proposed contract language that dictates how teachers will be placed. Remember also that an earlier MERC decision between this district and union highlighted that prohibited subjects could not be simply carried forward into a new CBA. If something is in the CBA, it inherently must have been bargained into it.

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