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:

1. 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.
2. 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.
3. 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.”
4. 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.