“Prohibited” Means “Prohibited” (Again)

In a case handled by Thrun Law Firm, the Michigan Court of Appeals recently affirmed a Michigan Employment Relations Com­mission decision, finding that the MEA committed an unfair labor practice by demanding to arbitrate a district’s decision to not recall a teacher. MEA v Vassar Pub Schs, COA Docket No. 337899 (May 22, 2018).

In 2011, the Michigan Legislature amended the Public Employment Relations Act by adding seven prohibited bar­gaining subjects, including “decisions about the development, con­tent, standards, procedures, adoption, and implementation of the public school employer’s policies regarding personnel decisions,” thereby encompassing teacher recall.

In Vassar, the MEA filed a grievance contending that a teacher’s layoff deprived the teacher of a significant property interest with­out due process and violated the collective bargaining agreement. To avoid the district’s argument that the grievance implicated a prohibited bargaining subject, the MEA argued that it was grieving a violation of the teacher’s due process rights, not the district’s failure to recall the teacher.

The district denied the grievance, claiming that (1) the district had the exclusive authority over teacher recall pursuant to PERA, (2) the teacher had been rated “minimally effective” and board pol­icy only required recall of “effective” teachers, and (3) the district had reserved the right to direct layoffs and recalls.

The MEA advanced the grievance to arbitration, and the district filed an unfair labor practice charge alleging the illegality of the MEA’s attempt to arbitrate a grievance involving a prohibited bargaining subject. The ALJ rejected the MEA’s due process argu­ment and ruled in favor of the district. MERC adopted the ALJ’s decision, and the MEA appealed.

The Michigan Court of Appeals affirmed MERC’s decision, ruling that regardless of the legal theory argued, “when a party demands to arbitrate a grievance that concerns a prohibited sub­ject of bargaining, that party commits an unfair labor practice.” The court further reiterated its position that “MERC’s exclusive jurisdic­tion over unfair labor practice claims ‘forecloses actions under statutes or legal theories where the alleged wrongdoing raises an unfair practice issue.’”

This decision reaffirms a school board’s broad legal authority and discretion concerning teacher layoff and recall policies. School officials, however, must still comply with their layoff and recall board policies and with the Revised School Code.