PERA Amended to Strengthen Teacher Strike Law

Public Act 194 was signed by Governor Snyder on June 21, 2016, amending Section 2a of Michigan’s Public Employment Relations Act (PERA), effective September 19, 2016, to revise the penalties and procedures for teacher strikes, MCL 423.202a.

New Procedures

A public school employer, or the State Superintendent of Public Instruction (SPI) after consultation with the public school employer, is required to notify the Michigan Employment Relations Commission (MERC) when either believes that conditions constituting a teacher strike exist. The notice must include the full or partial days that the alleged strike occurred and the name and address of the bargaining representative. An affidavit containing a clear and concise statement of the facts supporting the belief that a strike occurred must be provided to MERC with the notice. A copy of the notice must be served on the bargaining representative.

If the public school employer or the SPI fails to notify MERC when conditions constituting a strike exist, a parent or legal guardian of a student enrolled in the district may notify MERC of the full or partial days of an alleged strike.

Within 15 calendar days after receiving notice of an alleged strike, MERC must conduct a hearing to determine whether a strike occurred. The person who alleged the occurrence of a strike and provided the notice (i.e., the employer, SPI, or parent/guardian) has the burden to establish at the hearing that a strike occurred. MERC must issue its decision within three business days after the hearing.

New Teacher Penalty

Within five business days after MERC determines that a strike occurred, the employer or the SPI must notify MERC of the name and home address of each employee alleged to have participated in the strike. A copy of the notice also must be provided to each named employee. The named employees are presumed to have engaged in the strike. An employee may challenge that presumption within 10 calendar days after the notice was mailed or served by filing an affidavit with MERC containing a clear and concise statement of the facts to show that the determination was incorrect. If an employee timely files the required affidavit and supporting proof, then MERC must commence a hearing within 15 calendar days to determine whether the employee engaged in the strike. The employee bears the burden to rebut the presumption that the employee participated in the strike.

If an employee fails to timely file an affidavit with MERC challenging the employee’s presumed participation in the strike, or if MERC determines (following a hearing) that the employee engaged in the strike, the employer must deduct an amount equal to one day’s pay for each full or partial day that the employee engaged in the strike. This deduction is in addition to any loss of pay the employee may have received as a result of the full or partial day that the employee was absent from work because of the strike. This deduction is also in addition to any other penalty that is prescribed by PERA or by other law. If the employer does not deduct the money from the employee’s pay, then the SPI must institute collection proceedings.

This new legislation adds a stringent standard of judicial review. If MERC determines that a strike occurred, that finding cannot be overturned by a circuit court judge except by clear and convincing evidence to the contrary.

The new legislation also allows the SPI or Attorney General, in addition to the employer, to bring an action in circuit court to enjoin an illegal strike.

It is imperative that school officials carefully monitor and document conditions believed to constitute a teacher strike. Once MERC is notified that conditions constituting a strike are believed to exist, school officials and legal counsel will have not more than 15 calendar days to prepare for a hearing at which the school district must present evidence to supports its allegations.