MERC: Insistence on Bargaining Prohibited Subjects Violates PERA

On September 15, 2014, MERC again ruled that in­sisting on a prohibited subject at the bargaining table violates PERA and constitutes an unfair labor prac­tice. Calhoun Intermediate Ed Ass’n, Case No CU12 B-009 (September 15, 2014). This case was handled by Thrun Law Firm and serves as an important road map for bargaining after the 2011 amendments to PERA.

More than two years ago, Calhoun Intermediate School District (“ISD”) engaged in negotiations with the Calhoun Intermediate Education Association, made contentious in part by the Association’s refusal to remove prohibited subjects of bargaining from the contract. Negotiations were further complicated by the Association’s package proposals that mixed man­datory, illegal, and prohibited subjects into a single proposal. The Association’s proposals made it diffi­cult for the ISD to differentiate between mandatory subjects, which were of value to the Association, and those the Association proposed solely as a bargaining chip to retain prohibited subjects.

Due to the Association’s strategy, the ISD chal­lenged the Association’s insistence to include prohib­ited bargaining subjects in the collective bargaining agreement. The ISD carefully documented the Association’s continued insistence on the inclusion of prohibited bargaining subjects in the Association’s proposals.  To this end, the ISD even went so far as to include its objection to the Association’s insistence on each of its proposals and its responses to Association proposals. The ISD warned the Association that continued insistence on prohibited bargaining subjects would be viewed as a breach of the Association’s duty to bargain in good faith under PERA.

Despite the ISD’s warning, the Association con­tinued to insist on the inclusion of prohibited bar­gaining subjects in the agreement. The ISD filed an unfair labor practice charge. Both the ALJ and MERC agreed with the ISD that the Association’s insistence over prohibited bargaining subjects was an unfair labor practice.

The ALJ opined that the Association insisted, as a condition of a successor collective bargaining agree­ment, on the retention of prohibited bargaining sub­jects from the predecessor agreement. The ALJ also found that the Association impeded negotiations by advancing proposals that contained prohibited sub­jects after the ISD unequivocally stated its refusal to negoti­ate over the prohibited bargaining subjects.

MERC agreed, concluding that the ISD’s require­ment to bargain over mandatory bargaining subjects could not be “dependent upon the acceptance of pro­vi­sions in an agreement which, by their terms, are forbid­den by PERA’s specific language” (i.e., prohibit­ed bargaining subjects). MERC found that the Associ­ation’s persistent demand to bargain over the prohib­ited bargaining subjects and conditioning a successor agreement on the inclusion of prohibited bargaining subjects constituted bad faith bargaining.

A union’s continued insistence on prohibited bar­gaining subjects after a school’s demands to desist is an unfair labor practice. During negotiations, school officials should ensure that the school’s demands to the union to cease such tactics are clearly communi­cated and well documented.