CALHOUN INTERMEDIATE SCHOOL DISTRICT v CALHOUN INTERMEDIATE EDUCATION ASSOCIATION
Docket No. 323873
Court of Appeals of Michigan
January 7, 2016
314 Mich. App. 41
Submittеd December 3, 2015, at Lansing. Decided January 7, 2016, at 9:10 a.m.
The Calhoun Intermediate School District (the District) charged, in the Michigan Employment Relations Commission (MERC), the Calhoun Intermediate Education Association (the Association) with engaging in unfair labor practices. During negotiations between the parties on the terms of a collective bargaining аgreement, the Legislature enacted 2011 PA 103. The act amended the public employment relations act (PERA),
The Court of Appeals held:
1. Collective bargaining requires both parties to confer in good faith, meaning they must manifest an attitude and conduct that will be conducive to reaching an agreement. Although the parties may discuss prohibited subjects of collective bargaining,
2. Because the provisions at issue concerned prohibited subjects of bargaining, it was not necessary for the parties to bargain to impasse before the District could bring its unfair labor practice charge.
Affirmed.
White, Schneider, Young & Chiodini, PC (by Jeffrey S. Donahue and Erin M. Hopper), for Calhoun Intermediate Education Association.
Before: SHAPIRO, P.J., and O‘CONNELL and WILDER, JJ.
PER CURIAM. Respondent, Calhoun Intermediate Education Association (the Association), appeals by right the decisiоn and order of the Michigan Employment Relations Commission (MERC), which granted the motion of charging party, Calhoun Intermediate School District (the District), for summary disposition. For the reasons stated in this opinion, we affirm.
The Association represents a bargaining unit of teachers and other professionals employed by the District. The parties’ most reсent collective bargaining agreement (CBA) expired on June 30, 2011. The expired CBA included terms that addressed teacher evaluation, teacher discipline, teacher layoff and recall procedures, and the procedure for filling vacancies.
On May 25, 2011, the parties commenced negotiations for a successor CBA. The parties met on two additional occasions before the Legislature enacted 2011 PA 103, which went into effect on July 19, 2011. Act 103 amended
through (p), which made certain matters prohibited subjects of bargaining for public school employers and the unions representing school employees.
On August 15, 2011, the District submitted a revised comprehensive proposal to the Association. The revised proposal limited the applicability of some of the disputed provisions to “non-tenured employees” and “probationary employees (other than probationary employees who are teachers).” The proposal also included language stating:
Nothing in this proposal should be regarded as indicating that the Board of Education proposes or otherwise intends to continue any provisions of the 2009-2011 Master Agreement which pertain to prohibited subjects of bargaining in the successor collective bargaining
agreement, to the extent that such provisions pertain to prohibited subjects of bargaining. Further, the Calhoun Intermediate Education Association is hereby also notified that the Board of Education will not enter into or execute any successor collective bargaining agreement to the 2009-2011 Master Agreement which contains provisions embodying or pеrtaining to any prohibited subject of bargaining, as are more particularly set forth in Section 15(3) of the Public Employment Relations Act.
The Association responded that the language could not be removed without bargaining and that it would not bargain over prohibited subjects. The Association further stated that any provision in the successor CBA that pеrtained to a prohibited subject would be unenforceable, and, as a result, those provisions could remain in the contract. The Association further suggested that the disputed provisions be moved to an appendix, but the District rejected that suggestion.
On September 6, 2011, the Association gave the District a package proposal thаt included provisions pertaining to the prohibited subjects. On October 3, 2011, both parties presented proposals. The District‘s proposal expressly stated that the District would not enter into a successor CBA that included any provisions pertaining to the prohibited subjects. The Association‘s package proposal, however, indicаted that the provisions governing prohibited subjects of bargaining had been moved from the contract, but were included in a letter of agreement as an appendix to the CBA. The Association stated that the language would be moved back into the contract if 2011 PA 103 was found to be invalid, was repealed, or was modified by the Legislature. The District rejected the proposal, and the Association withdrew it.
After the October 3 bargaining session, the parties entered into mediation through MERC and were able to reach tentative agreements on a number of issues. However, on December 9, 2011, the District gave the Association another comprehensive proposal stating again thаt it would not enter into a successor CBA that included provisions addressing prohibited subjects. Further, the District warned the Association that further maintenance or presentation of proposals embodying the prohibited subjects would be considered a violation of the duty to bargain in good faith. On January 9, 2012, in spite of the District‘s warning, the Association prеsented another package proposal that included the disputed language. Further, on January 18, 2012, Michigan Education Association General Counsel, Arthur Przybylowicz, appeared before the District‘s board of education and requested that the language concerning prohibited subjects be carried over from the expired CBA into any successor agreement.
On January 24, 2012, the District submitted another comprehensive proposal to the Association. The proposal incorporated the parties’ tentative agreements on contract language, but it again stated that the District would not enter into an agreement containing any provisions addressing prohibited subjects.
On February 9, 2012, the parties met with a mediator, but neither had a new proposal to present. At the conclusion of the meeting, the Association filed a petition for fact-finding, indicating that the unresolved issues were “wages, insurance, sick leave, recognition clause, and duration of agreement.”
On February 21, 2012, the District filed a charge аlleging that the Association committed an unfair labor practice in violation of PERA when it insisted on including
On February 29, 2012, shortly after the instant charge was filed, the Association presented another package proposal that retained the disputed language.
On April 26, 2012, the District filed a motion for summary disposition. Oral argument on the motion was held оn May 29, 2012. On August 24, 2012, the administrative law judge (ALJ) assigned to hear the charge issued a written decision and recommended order finding that there were no material facts in dispute. She recommended that MERC order the Association to cease and desist from insisting as a condition of its agreement to a successor contract that the District agree to include provisions pertaining to prohibited subjects. She also recommended that the Association be ordered to cease and desist from bargaining in bad faith and obstructing and impeding the bargaining process by making proposals involving the prohib-
ited subjects even after the District unequivocally refused to bargain over those proposals.2
The Association filed exceptions, and the District filed a cross-exception. On September 15, 2014, MERC adopted the ALJ‘s recommendation, finding the Association had committed an unfair labor practice.
The parties agree that the disputed provisions are prohibited subjects of bargaining under
“We review MERC decisions pursuant to
MERC found that the Association breached the duty to bargain in good faith when it repeatedly insisted on including provisions in a successor CBA that it acknowledged were prohibited under
To determine whether a party has bargained in good faith, we examine the totаlity of the circumstances to decide whether a party has approached the bargaining process with an open mind and a sincere desire to reach an agreement. Grand Rapids Pub Museum, 17 MPER 58 (2004); City of Springfield, 1999 MERC Lab Op 399, 403;
Unionville-Sebewaing Area Sch, 1988 MERC Lab Op 86; Kalamazoo Pub Sch, 1977 MERC Lab Op 771, 776. In the present case, the record establishes that the Union continued to insist, as a condition of its agreement on a successor to the 2009-2011 сollective bargaining agreement, that the Employer agree to include provisions on prohibited bargaining subjects. As a result of the Union‘s continued insistence on including the prohibited subjects in its bargaining proposals, the Employer was unable to assess whether the position the Union took on other issues was sincere or merely an attempt to urge the Employer to bargain over the prohibited topics. The Union‘s conduct obstructed and impeded the bargaining process and made resolution of the parties’ dispute more difficult than it otherwise would be. *
*
*
In conclusion, we agree with the ALJ that the Union violated its duty to bargain in good faith by unlawfully insisting as a condition of agreement that thе Employer agree to include provisions on prohibited topics in the contract. We further agree with the ALJ that the Union violated its duty to bargain in good faith, and obstructed and impeded the bargaining process, by continuing to make proposals dealing with prohibited subjects after the Employer unequivocally refused to bargain over these proposals.
After review of the record, and giving due deference to the findings of fact by MERC, see Police Officers Ass‘n of Mich, 235 Mich App at 586, we affirm.
“Collective bargaining as a process requires both parties to confer in good faith—to listen to each other.” Mich State AFL-CIO v Employment Relations Comm, 453 Mich 362, 380; 551 NW2d 165 (1996) (opinion by BRICKLEY, C.J.), citing
Although the parties may “discuss” prohibited subjects,
Except as otherwise provided in subsection (3)(f), the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide. [Emphasis added.]
Thus, although the Association was free to “discuss” the prohibited subjects in this case, once the District made it clear that it did not want any provisions pertaining to the prohibited subjects to be included in the sucсessor CBA, the Association had no authority to continue to insist that the language or any modification of it was maintained in the successor CBA. The District made its position clear on August 15, 2011, when it submitted a revised comprehensive proposal removing the provisions pertaining to prohibited subjects from the CBA and providing express notice that it would nоt sign a successor agreement containing provisions pertaining to the prohibited subjects. Thereafter, the Association presented package proposals containing the disputed language on September 6, 2011, October 3, 2011, January 9, 2012, and February 29, 2012.5 In doing so, the Association crossed the line from
discussing a prohibited subject, which it is allowed to do, and began bargaining over it in spite оf the District‘s clear statements that it would not include such language in the successor CBA. We conclude, as did MERC, that the Association‘s insistence on maintaining prohibited language in the successor CBA is an act of bad faith.
Finally, we reject the Association‘s assertion that the District was barred from filing an unfair labor practice complaint until an impasse was reached. This argument puts the cart before the horse. The issue was not a mandatory subject of bargaining—indeed, it was a prohibited subject of bargaining—so there is no basis to require that the parties bargain to impasse concerning it. Demanding that the right to discuss a prohibited subject of bargaining extend to a requirement that the discussion сontinue until it results in a bargaining impasse is fundamentally a demand for bargaining. Therefore, the District did not have to wait for an impasse to bring its claim.
We affirm MERC‘s decision that the Association committed an unfair labor practice.
SHAPIRO, P.J., and O‘CONNELL and WILDER, JJ., concurred.
after a party with sole authority as to a particular issue repeatedly declines to change its decision, the other party‘s further insistence on that change as part of the bargaining process does not become a demand to bargain on that issue.
Notes
A public employer shall bargain collectively with the representatives of its employees as described in [MCL 423.211] and may make and enter into collective bargaining agreements with those representatives. Except as otherwise provided in this section, for the purposes of this section, to bargain collectively is to perform the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or to negotiate an agreement, or any question arising under the agreement, and to execute a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or make a concession.