Collective Bargaining in the Public Sector Untangling the Regulatory Web

PUBLIC EMPLOYMENT RELATIONS ACT (“PERA”) Public-sector labor relations is not subject to the federal National Labor Relations Act or state labor laws that apply to the private sector. Public-sector is governed by state laws directed specifically at public employers and employees. The Public Employment Relations Act (“PERA”), is Michigan’s principal state law in this area.

Michigan Employment Relations Commission “MERC” Responsible for implementing and administering PERA Certifies Bargaining Units Bargaining Units are a group of employees who share a “community of interest” Certifies Bargaining Representatives (i.e. MEA or American Federation of Teachers) Resolves Unfair Labor Practice Charges (ULP) Appoints Mediators and Fact Finders

Duty To Bargain PERA requires public employers to collectively bargain with the representative of its employees. Collective bargaining is the mutual obligation of the employer and the representative to confer in “good faith” over “mandatory subjects” of bargaining.

“Mandatory Subjects” Public employers are required to negotiate with the representative of its employees with respect to: Rates of Pay Hours of Employment “Other Terms and Conditions of Employment” Seniority Layoff & Recall Leave Time Discipline

“Permitted Subjects” Subjects you may negotiate but are not required to negotiate: Employers choice of hard cap or 80/20 election on health insurance premium (2011 PA 152) Creation/Elimination of bargaining unit positions

“Prohibited Subjects” Parties may discuss, but UNENFORCEABLE in a CBA or LOA: Retroactive payment of higher wages & benefits, including step increases, after CBA expiration (2011 PA 54)

Mediation PERA authorizes a public employer or bargaining representative to request mediation through MERC. Non-Binding Process Most often invoked once the parties have reached an impasse on an issue Parties must notify MERC relative to the status of negotiations at least 60 days prior to the expiration of a labor agreement. If the parties have not reached an agreement within 30 days after the notification, MERC will appoint a mediator. Mediation is a prerequisite to Fact-Finding.

Fact-Finding MERC will appoint a “Fact Finder” The Fact Finder will conduct a Hearing to receive evidence and argument on each parties position on the open issues Public Hearing – Will public awareness help negotiations? Fact Finder issues a written report which includes “recommendations” relative to how he/she believes the parties should deal with the unresolved issues The recommendations of the fact-finder are just that. Never say yes when you should say no. Good faith bargaining must continue for a “reasonable period” after receipt of the findings/recommendations.

IMPASSE Will you know it when you see it? MERC has defined “impasse” as follows: The point where further discussions would be futile. Flint Twp, 1974 MERC Lab Op 152. The point where “the parties positions have so solidified that further bargaining on the subject matter is obviously useless.” City of Saginaw, 1982 MERC Lab Op 727. Where “positions have crystallized so that further bargaining would be futile.” City of Ishpeming, 1985 MERC Lab Op 697.

Key Factors = Impasse MERC considers the following when deciding whether impasse truly exists: Have the parties negotiated for a reasonable term? Have the parties’ positions solidified? Are the parties aware of where the parties’ positions have solidified? Statements of a party declaring “impasse” are not determinative. City of Ishpeming, 1985 MERC Lab Op 517.

Implementation Once impasse has been reached, the employer may make unilateral changes in working conditions that are consistent with the employer’s last bargaining proposals. Waldron Area Schools, 1996 MERC Lab Op 441. This applies only to mandatory subjects of bargaining (i.e. wages, hours, working conditions).

Mediation/Fact-Finding’s Impact on Impasse/Implementation Declaring impasse before utilization of mediation and fact-finding may be viewed as evidence “lack of good faith.” Orion Twp, 18 MPER 72 (2005). Other MERC decisions seem to suggest that impasse can occur before fact-finding. Saginaw City, 16 MPER 45 (2003); City of Benton Harbor, 9 MPER 27091 (1996). It is a violation of employer’s duty to bargain if unilateral implementation occurs while fact-finding proceedings are pending. Co of Wayne, 1985 MERC Lab Op (244); affirmed by Michigan Court of Appeals, 152 Mich App 87 (1986). Announcing intent to seek fact-finding is insufficient to preclude implementation. Saginaw Co (Public Health Commission), 16 MPER 45 (2003).

Questions/Discussion Brendon R. Beer, Esq. Abbott, Thomson, Mauldin, Parker & Beer, PLC (517) 787-8570 bbeer@atbplclaw.com