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Union’s Demand to Arbitrate Teacher Discipline Violates PERA (Again)
In a case handled by Thrun Law Firm, the Michigan Court of Appeals affirmed a Michigan Employment Relations Commission (MERC) decision, which found that a union committed an unfair labor practice by demanding to arbitrate a school’s decision to issue a written reprimand to a teacher. Ionia Co Intermediate Ed Ass’n v Ionia Co Intermediate Sch Dist, Case No. 334573 (February 22, 2018). While MERC has consistently held that a decision involving teacher discipline is a prohibited bargaining subject, this decision represents the first time the Michigan Court of Appeals has weighed in on this issue.
As part of the 2011 amendments to the Public Employment Relations Act (PERA), the Michigan Legislature added Section 15(3)(m) to include “decisions about the development, content, standards, procedures, adoption, and implementation of a policy regarding discharge or discipline” of a teacher as a prohibited bargaining subject. At this point, it is well established that a union violates PERA if it attempts to enforce a prohibited bargaining subject through arbitration, even if the subject appears in a collective bargaining agreement. MERC has opined on several occasions that matters such as teacher discipline, teacher layoff and recall, and teacher placement cannot be enforced through grievance arbitration.
In Ionia Intermediate Sch Dist, the ISD issued a written reprimand to a probationary teacher for allowing male and female students to simultaneously change clothes and undress in the same locker room. The union challenged the ISD’s decision and claimed that the discipline violated the Collective Bargaining Agreement (CBA), which incorporated a “not arbitrary or capricious” standard of discipline. The union also claimed the teacher’s due process rights were violated.
The ISD denied the grievance, and the union filed its arbitration demand. In response, the ISD filed an unfair labor practice charge against the union for attempting to enforce a prohibited bargaining subject through arbitration.
MERC ultimately agreed with the ISD that PERA Section 15(3)(m) broadly makes all school decisions related to teacher discipline a prohibited bargaining subject and, thus, not enforceable through a contractual grievance procedure. MERC found that this principle applied even though the parties’ CBA contained a reference to an arbitrary and capricious discipline standard. Consistent with prior decisions, MERC found that the union’s attempts to enforce a prohibited bargaining subject through grievance arbitration violated PERA.
The union appealed MERC’s decision to the Court of Appeals arguing that: (1) Section 15(3)(m) did not specifically prohibit the arbitration of teacher discipline decisions; (2) the arbitrary and capricious discipline standard in the CBA should be implemented because it is specifically contained in Section 15(3)(m); and (3) the district’s disciplinary decision violated the teacher’s due process rights, which are incorporated in the CBA.
Consistent with prior MERC decisions involving prohibited bargaining subjects, the court found that the union committed an unfair labor practice by demanding to arbitrate a grievance related to a prohibited bargaining subject (i.e., teacher discipline). Also consistent with prior MERC decisions, the court found that individual teacher discipline, as well as any underlying disciplinary procedures utilized by a school in its investigation of alleged misconduct, are contained within Section 15(3)(m).
The court also dismissed the union’s argument that the Legislature intended to incorporate the arbitrary or capricious standard of conduct into Section 15(3)(m), thus allowing challenges to teacher discipline decisions. Finally, the court rejected the union’s argument that the CBA protected the individual teacher’s due process rights and that the union and the teacher could challenge due process through the CBA’s grievance procedure.
This decision, and MERC’s decision in Shiawassee Regional Ed Serv Dist, give school officials more discretion to discipline a teacher for less than 15 consecutive days of unpaid suspension (or up to 30 cumulative days’ compensation). School officials must still, however, exercise caution not to infringe upon any other legal rights that a teacher may possess (e.g., procedural due process rights and other statutory protections) in connection with teacher discipline. School officials still must take the time to thoroughly and fairly investigate all complaints of misconduct. Fair and timely investigations are critical to support any decisions involving an adverse employment action. If the alleged misconduct warrants discipline, school officials must take care to appropriately document and be able to present sufficient evidence to support the school’s disciplinary decisions, especially if the discipline may involve an appeal to the State Tenure Commission.