Scope of Teacher Discipline Bargaining Prohibition Clarified

In a case handled by Thrun Law Firm, an administrative law judge for the Michigan Employment Relations Commission recently ruled that a school did not unlawfully refuse to bargain over sever­al expiring contract provisions containing prohibited bargaining subjects, including the prohibited subject of teacher discipline. Ionia Pub Schs v Ionia Ed Ass’n, Case No. C13 F-107 (February 22, 2016).

Based on recent MERC decisions, we now have a better understanding of the breadth of the recently-added prohibited top­ics of teacher assignment, teacher evaluation, teacher layoff, and teacher discipline, particularly as they apply to provisions in teach­er collective bargaining agreements. MERC’s analysis in the recent Ionia decision is especially instructive to the application of the bargaining prohibitions in Section 15(3)(m) of PERA, which in­clude “decisions about the development, content, standards, procedures, adoption and implementation” of school policies regarding teacher discipline, as well as decisions about the discharge or discipline of an individual teacher and the impact of all such decisions.

Referencing the recent decision in Shiawassee RESD (see January 28, 2016 School Law Notes), the ALJ in Ionia concluded that the bargaining prohibition over teacher discipline “effectively ren­ders anything related to teacher discipline a prohibited subject.” Further, the ALJ explained that PERA’s language creating this pro­hibition “leads to the inescapable conclusion that in amending PERA in 2011, the Legislature intended to insulate all aspects of a public school employer’s disciplinary actions from the realm of collective bargaining.”

Applying those standards, the ALJ in Ionia ruled that several provisions from the expiring collective bargaining agreement, which the union sought to retain in the successor contract then under negotiation, were “prohibited” bargaining subjects. The ALJ concluded that the school properly refused to bargain over this subject and properly declined to include them in the new collective bargaining agreement. These prohibited subjects included:

  • language requiring the school to provide teachers with information used in making a disciplinary decision;
  • a provision requiring the school to notify teachers of a contemplated disciplinary action and requiring the school to advise the teacher of the right to union representation;
  • a clause allowing union representation at a meeting where discipline is imposed on a teacher;
  • language incorporating an “arbitrary or capricious” standard for reviewing teacher discipline;
  • a provision limiting the school’s right to place critical material in a teacher’s personnel file and enabling teachers to file a rebuttal or grievance to challenge such materials;
  • a clause allowing probationary teachers access to the grievance procedure to contest disci­pline or nonrenewal; and
  • language mandating a remedy for any teacher who is discharged in an arbitrary or capricious manner.

School officials are encouraged to review their teacher collective bargaining agreements to identify provisions that are prohibited bargaining subjects. Such provisions are unenforceable and should not be perpetuated in newly-negotiated contracts.