An administrative law judge (ALJ) for the Michigan Employment Relations Commission (MERC) recently held that the pursuit of a grievance by a union on a prohibited subject of bargaining constituted an unfair labor practice. In the process he also issued an order requiring the union to withdraw the grievance and pay any and all costs the school district incurred, including legal fees, associated with the grievance. Given the 2011 expansion of prohibited subjects by the Michigan Legislature, the ALJ’s ruling is significant.
In Pontiac School District, MERC Case Nos C11 K-197 and CU12 D-019 (Sept. 27, 2013), the union representing the teachers filed an unfair labor practice charge related, in part, to the school district’s unilateral decision to transfer one of their teachers. The union also filed grievances in relation to the transfer of that teacher and another. The school district denied the grievances and filed its own charge of unfair labor practice against the union for processing the grievances related to a prohibited subject of bargaining – i.e., teacher placement. The ALJ, after receiving position statements from both sides, dismissed the case in favor of the school district. In doing so, the ALJ made some very important holdings.
Specifically, the ALJ noted that “teacher placement” is a prohibited subject of bargaining under section 15(3)(j) of the Public Employment Relations Act (PERA), MCL 423.215(3)(j). In determining what amounts to “teacher placement,” the ALJ relied on his earlier decision in Ionia Public Schools, MERC Case No C12 G-136 (March 1, 2013). In Ionia, it was explained that “placement refers to ‘[t]he assignment of a person to a suitable place as a job or a class in school.’” Accordingly, the ALJ held that assignments at question in Pontiac amounted to “teacher placement” as that term is used in the PERA.
More importantly, however, the ALJ held that by pursuing a grievance on teacher placement the union committed an unfair labor practice. In particular, the ALJ explained that parties have the right to discuss prohibited subjects of bargaining. When the employer refuses to bargain over a prohibited subject, however, the union must cease its discussion on the topic and cannot insist a party continue to discuss or bargain the topic – to do otherwise amounts to an unfair labor practice. In relation to the facts in Pontiac, the ALJ clarified that when the union filed the grievance related to teacher placement, that was their invitation to discuss or bargain over that prohibited subject. By denying the grievance, the school district was notifying the union that it did not wish to bargain over that topic. By then processing that grievance to arbitration the union insisted on bargaining over the topic and committed an unfair labor practice by violating the duty to bargain in good faith.
As the ALJ explained, “[i]t is a party’s insistence on an illegal or prohibited subject of bargaining as a condition of employment that constitutes a violation of the duty to bargain in good faith.” As to the facts in Pontiac, the ALJ expounded:
I find that it was not unlawful for the Union in this matter to have grieved the reassignment of [the subject teacher] for the purpose of attempting to engage the school district in a discussion concerning the appropriateness of the transfer and to seek an agreement with the Employer on an alternative course of action with respect to [the subject teacher’s] job placement. Pursuant to Section 15(3)(j), however, the school district had the absolute right to end those discussions at any time. By advancing the matter to arbitration over the Employer’s objection, the Union was not only attempting to compel the Employer to discuss the grievance, it was also seeking to enforce through the grievance procedure contract provisions and/or past practices which were explicitly made unenforceable by Section 15(3)(j) of the Act. . . . For this reason, I conclude that the [union] violated its duty to bargain under Section 10(1)(e) of PERA by advancing the [teacher placement] grievance to arbitration.
Importantly, as a remedy for the unfair labor practice charge, the ALJ ordered the union to: 1) cease and desist from seeking to arbitrate grievances on prohibited subjects; 2) withdraw the grievance on the transfer; 3) refrain from enforcing the decision if an arbitration decision has already been issued; and 4) reimburse the school district for its actual costs, including attorney fees, incurred in the arbitration proceedings.
The holding of the ALJ is important because it gives school districts a tool to be able to respond with when unions attempt to grieve decisions related to prohibited subjects – other than arguing to an arbitrator (who may or may not listen) that the subject in question is prohibited. This position is greatly strengthened by the ALJ granting of costs associated with the grievance process. That award raises the stakes on the matter and lets the union know that if it pushes a meritless grievance on the hopes that the arbitrator will ignore outside law it may well face the consequence of having to foot the school district’s bill for doing so.
It is expected that the union will try to appeal this matter to the entire panel of the MERC. That having been said, the ALJ’s decision is legally sound and will not likely be overturned.