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MERC Clarifies Treatment of Prohibited Bargaining Subjects
In a matter handled by Thrun, the Michigan Employment Relations Commission recently offered additional guidance on the treatment of prohibited bargaining subjects contained in section 15 of the Public Employment Relations Act. Ionia Pub Schs and Ionia Ed Ass’n, MERC Case Nos. C12 E-094, CU12 C-013 (December 18, 2014).
School officials asserted that content related to prohibited subjects in its expiring collective bargaining agreement would not be replicated in the new contract under negotiation. The union disagreed, claiming that in order to remove the contested language from the expiring contract, the parties must bargain over the prohibited subjects. The union refused to discuss the prohibited subjects and instead insisted they automatically become part of the successor contract. Both parties filed unfair labor practice charges.
MERC ruled that the union, not the school officials, committed an unfair labor practice. MERC also clarified and expanded upon several important issues about prohibited bargaining subjects:
- When a collective bargaining agreement expires, a public school employer does not violate the duty to bargain in good faith by refusing to include prohibited content in the new contract.
- While it is not unusual for parties to bargain a new contract with an understanding that the existing contracted terms not raised in negotiations will be carried over, this approach is a bargaining convention rather than a legal requirement. There, the school officials gave the union clear and repeated written notice that they would not continue the prohibited provisions from the old contract and also carefully drafted proposals to omit the prohibited language.
- While prohibited subjects cannot be bargained, PERA permits discussion of those issues, particularly to identify language that cannot be continued in the new contract. MERC stated that the union’s “baseless insistence” that the prohibited terms of the expired contract automatically transferred to the new contract, coupled with its refusal to even discuss the issues raised by that position, was “simply an attempt to delay and obfuscate the bargaining process.”
- Perhaps most importantly, MERC clarified that while the union’s insistence upon retaining the prohibited content unlawfully obstructed the bargaining process and violated the duty to bargain in good faith by demanding to bargain over prohibited subjects, this duty is also violated when school officials “clearly and unambiguously” indicate their unwillingness to bargain over them. Significantly, insistence by the union was not required.
This ruling is an important departure from previous MERC decisions using the insistence standard. It illustrates the need for school officials to make clear to the union early in the bargaining process that prohibited subjects and content cannot be included in the successor contract.
This decision provides important guidance to management for developing and presenting bargaining proposals when the expiring contract contains prohibited content. School officials should first identify which language within the expiring contract implicates matters that are prohibited or illegal bargaining subjects. The board’s proposal should then be thoughtfully developed to exclude those matters and to place the union on specific written notice it will not consent to the continuation of the identified language in the new contract. If the union continues to demand bargaining over any prohibited subjects, school officials should consider filing an unfair labor practice charge to remedy the violation. If you need assistance with these matters, please contact a Thrun labor attorney.