No Duty to Comply With “Prohibited Subjects” in Expired CBA

MERC recently rejected an unfair labor practice (“ULP”) charge alleging that the Pontiac School District violated a collective bargaining agreement by requiring teachers to collect student questionnaires and involuntarily transferring a teacher.  Pontiac Sch Dist, MERC Case No. C12 D-070 (March, 17, 2014).

After the collective bargaining agreement ex­pired, the district required its teachers to participate in a student questionnaire program. The district stat­ed that it would not use the questionnaires for evalu­ation purposes but would use the questionnaires to obtain student opinions about teacher performance. The collection of questionnaires was a new require­ment for teachers.

Simultaneously, the district involuntarily trans­ferred a middle school teacher who had engaged in misconduct to the high school.  The transfer was not authorized by the expired collective bargaining agreement.

The association filed a ULP charge, alleging that the district’s actions were unilateral changes in work­ing conditions and a violation of the collective bar­gaining agreement.  The association argued that PE­RA required the parties to maintain the status quo at the expiration of the collective bargaining agreement, including those portions that might be deemed “pro­hibited” in a future successor bargaining agreement.

MERC rejected the association’s argument and held that the district had no duty to maintain the status quo of prohibited portions of the expired col­lective bargaining agreement. MERC noted that, up­on the contract’s expiration, those prohibited por­tions became void and the district was under no obli­gation to comply with them. MERC held that the stu­dent questionnaires and the teacher’s placement were prohibited subjects and, therefore, the district did not need to comply with these provisions of the expired collective bargaining agreement.

School officials are reminded that there is no du­ty to bargain over prohibited bargaining subjects, such as teacher placement, evaluation, and discipline.  As collective bargaining agreements expire for many school districts within the next few months, school officials should review those agreements and elimi­nate all prohibited bargaining subjects from the agreements. Districts should respond to any attempt by a union to bargain over a prohibited subject by clearly indicating in writing that the district refuses to bargain over prohibited subjects of bargaining.