December 2, 2014, Introduced by Rep. Pscholka and referred to the Committee on Michigan Competitiveness.
A bill to amend 1947 PA 336, entitled
"An act to prohibit strikes by certain public employees; to provide
review from disciplinary action with respect thereto; to provide
for the mediation of grievances and the holding of elections; to
declare and protect the rights and privileges of public employees;
to require certain provisions in collective bargaining agreements;
to prescribe means of enforcement and penalties for the violation
of the provisions of this act; and to make appropriations,"
by amending sections 1, 9, 10, and 15 (MCL 423.201, 423.209,
423.210, and 423.215), as amended by 2012 PA 349.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. (1) As used in this act:
(a) "Bargaining representative" means a labor organization
recognized by an employer or certified by the commission as the
sole and exclusive bargaining representative of certain employees
of the employer.
(b) "Commission" means the employment relations commission
created in section 3 of 1939 PA 176, MCL 423.3.
(c) "Independent audit" means an audit that is conducted in
accordance with generally accepted auditing standards by an auditor
that is not affiliated with the exclusive bargaining
representative.
(d) (c)
"Intermediate school
district" means that term as
defined in section 4 of the revised school code, 1976 PA 451, MCL
380.4.
(e) (d)
"Lockout" means the
temporary withholding of work from
a group of employees by shutting down the operation of the employer
to bring pressure upon the affected employees or the bargaining
representative, or both, to accept the employer's terms of
settlement of a labor dispute.
(f) (e)
"Public employee" means a
person an individual holding
a position by appointment or employment in the government of this
state, in the government of 1 or more of the political subdivisions
of this state, in the public school service, in a public or special
district, in the service of an authority, commission, or board, or
in any other branch of the public service, subject to the following
exceptions:
(i) A person An individual employed by a
private organization
or entity who provides services under a time-limited contract with
this state or a political subdivision of this state or who receives
a direct or indirect government subsidy in his or her private
employment is not an employee of this state or that political
subdivision, and is not a public employee. This provision shall not
be superseded by any interlocal agreement, memorandum of
understanding, memorandum of commitment, or other document similar
to these.
(ii) If, by April 9, 2000, a public school employer that is the
chief executive officer serving in a school district of the first
class under part 5A of the revised school code, 1976 PA 451, MCL
380.371 to 380.376, issues an order determining that it is in the
best interests of the school district, then a public school
administrator employed by that school district is not a public
employee for purposes of this act. The exception under this
subparagraph applies to public school administrators employed by
that school district after the date of the order described in this
subparagraph whether or not the chief executive officer remains in
place in the school district. This exception does not prohibit the
chief executive officer or board of a school district of the first
class or its designee from having informal meetings with public
school administrators to discuss wages and working conditions.
(iii) An individual serving as a graduate student research
assistant
or in an equivalent position, and a
student participating
in intercollegiate athletics on behalf of a public university in
this state, or any individual whose position does not have
sufficient indicia of an employer-employee relationship using the
20-factor test announced by the internal revenue service of the
United States department of treasury in revenue ruling 87-41, 1987-
1 C.B. 296 is not a public employee entitled to representation or
collective bargaining rights under this act.
(g) (f)
"Public school academy"
means a public school academy
or strict discipline academy organized under the revised school
code, 1976 PA 451, MCL 380.1 to 380.1852.
(h) (g)
"Public school
administrator" means a superintendent,
assistant superintendent, chief business official, principal, or
assistant principal employed by a school district, intermediate
school district, or public school academy.
(i) (h)
"Public school employer"
means a public employer that
is the board of a school district, intermediate school district, or
public school academy; is the chief executive officer of a school
district in which a school reform board is in place under part 5A
of the revised school code, 1976 PA 451, MCL 380.371 to 380.376; or
is the governing board of a joint endeavor or consortium consisting
of any combination of school districts, intermediate school
districts, or public school academies.
(j) (i)
"School district" means
that term as defined in
section 6 of the revised school code, 1976 PA 451, MCL 380.6, or a
local act school district as defined in section 5 of the revised
school code, 1976 PA 451, MCL 380.5.
(k) (j)
"Strike" means the
concerted failure to report for
duty, the willful absence from one's position, the stoppage of
work, or the abstinence in whole or in part from the full,
faithful, and proper performance of the duties of employment for
the purpose of inducing, influencing, or coercing a change in
employment conditions, compensation, or the rights, privileges, or
obligations of employment. For employees of a public school
employer, strike also includes an action described in this
subdivision that is taken for the purpose of protesting or
responding to an act alleged or determined to be an unfair labor
practice committed by the public school employer.
(2) This act does not limit, impair, or affect the right of a
public employee to the expression or communication of a view,
grievance, complaint, or opinion on any matter related to the
conditions or compensation of public employment or their betterment
as long as the expression or communication does not interfere with
the full, faithful, and proper performance of the duties of
employment.
Sec. 9. (1) Public employees may do any of the following:
(a) Organize together or form, join, or assist in labor
organizations; engage in lawful concerted activities for the
purpose of collective negotiation or bargaining or other mutual aid
and protection; or negotiate or bargain collectively with their
public employers through representatives of their own free choice.
(b) Refrain from any or all of the activities identified in
subdivision (a).
(2) No person shall by force, intimidation, or unlawful
threats compel or attempt to compel any public employee to do any
of the following:
(a) Become or remain a member of a labor organization or
bargaining representative or otherwise affiliate with or
financially support a labor organization or bargaining
representative.
(b) Refrain from engaging in employment or refrain from
joining a labor organization or bargaining representative or
otherwise affiliating with or financially supporting a labor
organization or bargaining representative.
(c) Pay to any charitable organization or third party an
amount that is in lieu of, equivalent to, or any portion of dues,
fees, assessments, or other charges or expenses required of members
of or public employees represented by a labor organization or
bargaining representative.
(d) Pay the costs of an independent audit as described in
section 10(9).
(3) A person who violates subsection (2) is liable for a civil
fine of not more than $500.00. A civil fine recovered under this
section shall be submitted to the state treasurer for deposit in
the general fund of this state.
Sec. 10. (1) A public employer or an officer or agent of a
public employer shall not do any of the following:
(a) Interfere with, restrain, or coerce public employees in
the exercise of their rights guaranteed in section 9.
(b) Initiate, create, dominate, contribute to, or interfere
with the formation or administration of any labor organization. A
public school employer's use of public school resources to assist a
labor organization in collecting dues or service fees from wages of
public school employees is a prohibited contribution to the
administration of a labor organization. However, a public school
employer's collection of dues or service fees pursuant to a
collective bargaining agreement that is in effect on March 16, 2012
is not prohibited until the agreement expires or is terminated,
extended, or renewed. A public employer may permit employees to
confer with a labor organization during working hours without loss
of time or pay.
(c) Discriminate in regard to hire, terms, or other conditions
of employment to encourage or discourage membership in a labor
organization.
(d) Discriminate against a public employee because he or she
has given testimony or instituted proceedings under this act.
(e) Refuse to bargain collectively with the representatives of
its
public employees, subject to the provisions of section 11.
(2) A labor organization or its agents shall not do any of the
following:
(a) Restrain or coerce public employees in the exercise of the
rights guaranteed in section 9. This subdivision does not impair
the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership.
(b) Restrain or coerce a public employer in the selection of
its representatives for the purposes of collective bargaining or
the adjustment of grievances.
(c) Cause or attempt to cause a public employer to
discriminate against a public employee in violation of subsection
(1)(c).
(d) Refuse to bargain collectively with a public employer,
provided it is the representative of the public employer's
employees, subject to section 11.
(3) Except as provided in subsection (4), an individual shall
not be required as a condition of obtaining or continuing public
employment to do any of the following:
(a) Refrain or resign from membership in, voluntary
affiliation with, or voluntary financial support of a labor
organization or bargaining representative.
(b) Become or remain a member of a labor organization or
bargaining representative.
(c) Pay any dues, fees, assessments, or other charges or
expenses of any kind or amount, or provide anything of value to a
labor organization or bargaining representative.
(d) Pay to any charitable organization or third party any
amount that is in lieu of, equivalent to, or any portion of dues,
fees, assessments, or other charges or expenses required of members
of or public employees represented by a labor organization or
bargaining representative.
(4) The application of subsection (3) is subject to the
following:
(a) Subsection (3) does not apply to any of the following:
(i) A public police or fire department employee or any person
who seeks to become employed as a public police or fire department
employee as that term is defined under section 2 of 1969 PA 312,
MCL 423.232.
(ii) A state police trooper or sergeant who is granted rights
under section 5 of article XI of the state constitution of 1963 or
any individual who seeks to become employed as a state police
trooper or sergeant.
(b) Any person described in subdivision (a), or a labor
organization or bargaining representative representing persons
described in subdivision (a) and a public employer or this state
may agree that all employees in the bargaining unit shall share
fairly in the financial support of the labor organization or their
exclusive bargaining representative by paying a fee to the labor
organization or exclusive bargaining representative that may be
equivalent to the amount of dues uniformly required of members of
the labor organization or exclusive bargaining representative.
Section 9(2) shall not be construed to interfere with the right of
a public employer or this state and a labor organization or
bargaining representative to enter into or lawfully administer such
an agreement as it relates to the employees or persons described in
subdivision (a).
(c) If any of the exclusions in subdivision (a)(i) or (ii) are
found to be invalid by a court, the following apply:
(i) The individuals described in the exclusion found to be
invalid shall no longer be excepted from the application of
subsection (3).
(ii) Subdivision (b) does not apply to individuals described in
the invalid exclusion.
(5) An agreement, contract, understanding, or practice between
or involving a public employer, labor organization, or bargaining
representative that violates subsection (3) is unlawful and
unenforceable. This subsection applies only to an agreement,
contract, understanding, or practice that takes effect or is
extended
or renewed after the effective date of the amendatory act
that
added this subsection.March
28, 2013.
(6) The court of appeals has exclusive original jurisdiction
over any action challenging the validity of subsection (3), (4), or
(5). The court of appeals shall hear the action in an expedited
manner.
(7) For fiscal year 2012-2013, $1,000,000.00 is appropriated
to the department of licensing and regulatory affairs to be
expended
to do all of the following regarding the amendatory act
that
added this subsection:2012 PA
349:
(a)
Respond to public inquiries regarding the amendatory
act.2012 PA 349.
(b) Provide the commission with sufficient staff and other
resources
to implement the amendatory act.2012
PA 349.
(c) Inform public employers, public employees, and labor
organizations concerning their rights and responsibilities under
the
amendatory act.2012 PA 349.
(d) Any other purposes that the director of the department of
licensing and regulatory affairs determines in his or her
discretion
are necessary to implement the amendatory act.2012 PA
349.
(8) A person, public employer, or labor organization that
violates subsection (3) is liable for a civil fine of not more than
$500.00. A civil fine recovered under this section shall be
submitted to the state treasurer for deposit in the general fund of
this state.
(9) By March 1 of each year, each exclusive bargaining
representative that represents public employees in this state shall
file with the commission an independent audit of all expenditures
attributed to the costs of collective bargaining, contract
administration, and grievance adjustment during the prior calendar
year. The commission shall make the audits available to the public
on the commission's website. A local bargaining unit affiliated
with an exclusive bargaining representative that is subject to this
subsection is not required to file a separate, independent audit if
all of the local bargaining unit's expenditures attributed to the
costs of collective bargaining, contract administration, and
grievance adjustment are included in the independent audit of the
affiliated bargaining representative. For fiscal year 2011-2012,
$100,000.00 is appropriated to the commission for the costs of
implementing this subsection. For fiscal year 2014-2015,
$100,000.00 is appropriated to the commission for the costs of
implementing this subsection.
(10) Except for actions required to be brought under
subsection (6), a person who suffers an injury as a result of a
violation or threatened violation of subsection (3) may bring a
civil action for damages, injunctive relief, or both. In addition,
a court shall award court costs and reasonable attorney fees to a
plaintiff who prevails in an action brought under this subsection.
Remedies provided in this subsection are independent of and in
addition to other penalties and remedies prescribed by this act.
Sec. 15. (1) A public employer shall bargain collectively with
the representatives of its employees as described in section 11 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.
(2) A public school employer has the responsibility,
authority, and right to manage and direct on behalf of the public
the operations and activities of the public schools under its
control.
(3) Collective bargaining between a public school employer and
a bargaining representative of its employees shall not include any
of the following subjects:
(a) Who is or will be the policyholder of an employee group
insurance benefit. This subdivision does not affect the duty to
bargain with respect to types and levels of benefits and coverages
for employee group insurance. A change or proposed change in a type
or to a level of benefit, policy specification, or coverage for
employee group insurance shall be bargained by the public school
employer and the bargaining representative before the change may
take effect.
(b) Establishment of the starting day for the school year and
of the amount of pupil contact time required to receive full state
school aid under section 1284 of the revised school code, 1976 PA
451, MCL 380.1284, and under section 101 of the state school aid
act of 1979, 1979 PA 94, MCL 388.1701.
(c) The composition of school improvement committees
established under section 1277 of the revised school code, 1976 PA
451, MCL 380.1277.
(d) The decision of whether or not to provide or allow
interdistrict or intradistrict open enrollment opportunity in a
school district or the selection of grade levels or schools in
which to allow an open enrollment opportunity.
(e) The decision of whether or not to act as an authorizing
body to grant a contract to organize and operate 1 or more public
school academies under the revised school code, 1976 PA 451, MCL
380.1 to 380.1852.
(f) The decision of whether or not to contract with a third
party for 1 or more noninstructional support services; or the
procedures for obtaining the contract for noninstructional support
services other than bidding described in this subdivision; or the
identity of the third party; or the impact of the contract for
noninstructional support services on individual employees or the
bargaining unit. However, this subdivision applies only if the
bargaining unit that is providing the noninstructional support
services is given an opportunity to bid on the contract for the
noninstructional support services on an equal basis as other
bidders.
(g) The use of volunteers in providing services at its
schools.
(h) Decisions concerning use and staffing of experimental or
pilot programs and decisions concerning use of technology to
deliver educational programs and services and staffing to provide
that technology, or the impact of those decisions on individual
employees or the bargaining unit.
(i) Any compensation or additional work assignment intended to
reimburse an employee for or allow an employee to recover any
monetary penalty imposed under this act.
(j) Any decision made by the public school employer regarding
teacher placement, or the impact of that decision on an individual
employee or the bargaining unit.
(k) Decisions about the development, content, standards,
procedures, adoption, and implementation of the public school
employer's policies regarding personnel decisions when conducting a
staffing or program reduction or any other personnel determination
resulting in the elimination of a position, when conducting a
recall from a staffing or program reduction or any other personnel
determination resulting in the elimination of a position, or in
hiring after a staffing or program reduction or any other personnel
determination resulting in the elimination of a position, as
provided under section 1248 of the revised school code, 1976 PA
451, MCL 380.1248, any decision made by the public school employer
pursuant to those policies, or the impact of those decisions on an
individual employee or the bargaining unit.
(l) Decisions about the development, content, standards,
procedures, adoption, and implementation of a public school
employer's performance evaluation system adopted under section 1249
of the revised school code, 1976 PA 451, MCL 380.1249, or under
1937 (Ex Sess) PA 4, MCL 38.71 to 38.191, decisions concerning the
content of a performance evaluation of an employee under those
provisions of law, or the impact of those decisions on an
individual employee or the bargaining unit.
(m) For public employees whose employment is regulated by 1937
(Ex Sess) PA 4, MCL 38.71 to 38.191, decisions about the
development, content, standards, procedures, adoption, and
implementation of a policy regarding discharge or discipline of an
employee, decisions concerning the discharge or discipline of an
individual employee, or the impact of those decisions on an
individual employee or the bargaining unit. For public employees
whose employment is regulated by 1937 (Ex Sess) PA 4, MCL 38.71 to
38.191, a public school employer shall not adopt, implement, or
maintain a policy for discharge or discipline of an employee that
includes a standard for discharge or discipline that is different
than the arbitrary and capricious standard provided under section 1
of article IV of 1937 (Ex Sess) PA 4, MCL 38.101.
(n) Decisions about the format, timing, or number of classroom
observations conducted for the purposes of section 3a of article II
of 1937 (Ex Sess) PA 4, MCL 38.83a, decisions concerning the
classroom observation of an individual employee, or the impact of
those decisions on an individual employee or the bargaining unit.
(o) Decisions about the development, content, standards,
procedures, adoption, and implementation of the method of
compensation required under section 1250 of the revised school
code, 1976 PA 451, MCL 380.1250, decisions about how an employee
performance evaluation is used to determine performance-based
compensation under section 1250 of the revised school code, 1976 PA
451, MCL 380.1250, decisions concerning the performance-based
compensation of an individual employee, or the impact of those
decisions on an individual employee or the bargaining unit.
(p) Decisions about the development, format, content, and
procedures of the notification to parents and legal guardians
required under section 1249a of the revised school code, 1976 PA
451, MCL 380.1249a.
(q) Any requirement that would violate section 10(3).
(4) 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.
(5) If a public school is placed in the state school
reform/redesign school district or is placed under a chief
executive officer under section 1280c of the revised school code,
1976 PA 451, MCL 380.1280c, then, for the purposes of collective
bargaining under this act, the state school reform/redesign officer
or the chief executive officer, as applicable, is the public school
employer of the public school employees of that public school for
as long as the public school is part of the state school
reform/redesign school district or operated by the chief executive
officer.
(6) A public school employer's collective bargaining duty
under this act and a collective bargaining agreement entered into
by a public school employer under this act are subject to all of
the following:
(a) Any effect on collective bargaining and any modification
of a collective bargaining agreement occurring under section 1280c
of the revised school code, 1976 PA 451, MCL 380.1280c.
(b) For a public school in which the superintendent of public
instruction implements 1 of the 4 school intervention models
described in section 1280c of the revised school code, 1976 PA 451,
MCL 380.1280c, if the school intervention model that is implemented
affects collective bargaining or requires modification of a
collective bargaining agreement, any effect on collective
bargaining and any modification of a collective bargaining
agreement under that school intervention model.
(7) Each collective bargaining agreement entered into between
a public employer and public employees under this act on or after
March
16, 2011 28, 2013 shall include a provision that allows an
emergency
manager appointed under the local government and school
district
fiscal accountability act, 2011 PA 4, MCL 141.1501 to
141.1531,
financial stability and
choice act, 2012 PA 436, MCL
141.1541 to 141.1575, to reject, modify, or terminate the
collective
bargaining agreement as provided in the local government
and
school district fiscal accountability act, 2011 PA 4, MCL
141.1501
to 141.1531. financial
stability and choice act, 2012 PA
436, MCL 141.1541 to 141.1575. Provisions required by this
subsection are prohibited subjects of bargaining under this act.
(8) Collective bargaining agreements under this act may be
rejected,
modified, or terminated pursuant to the local government
and
school district fiscal accountability act, 2011 PA 4, MCL
141.1501
to 141.1531. financial
stability and choice act, 2012 PA
436, MCL 141.1541 to 141.1575. This act does not confer a right to
bargain that would infringe on the exercise of powers under the
local
government and school district fiscal accountability act,
2011
PA 4, MCL 141.1501 to 141.1531.financial
stability and choice
act, 2012 PA 436, MCL 141.1541 to 141.1575.
(9) A unit of local government that enters into a consent
agreement
under the local government and school district fiscal
accountability
act, 2011 PA 4, MCL 141.1501 to 141.1531, financial
stability and choice act, 2012 PA 436, MCL 141.1541 to 141.1575, is
not subject to subsection (1) for the term of the consent
agreement,
as provided in the local government and school district
fiscal
accountability act, 2011 PA 4, MCL 141.1501 to
141.1531.financial stability and choice act, 2012 PA
436, MCL
141.1541 to 141.1575.
(10) If the charter of a city, village, or township with a
population of 500,000 or more requires and specifies the method of
selection of a retirant member of the municipality's fire
department, police department, or fire and police department
pension or retirement board, the inclusion of the retirant member
on the board and the method of selection of that retirant member
are prohibited subjects of collective bargaining, and any provision
in a collective bargaining agreement that purports to modify that
charter requirement is void and of no effect.
(11) The following are prohibited subjects of bargaining and
are at the sole discretion of the public employer:
(a) A decision as to whether or not the public employer will
enter into an intergovernmental agreement to consolidate 1 or more
functions or services, to jointly perform 1 or more functions or
services, or to otherwise collaborate regarding 1 or more functions
or services.
(b) The procedures for obtaining a contract for the transfer
of functions or responsibilities under an agreement described in
subdivision (a).
(c) The identities of any other parties to an agreement
described in subdivision (a).
(12)
Nothing in subsection Subsection
(11) relieves does not
relieve a public employer of any duty established by law to
collectively bargain with its employees as to the effect of a
contract described in subsection (11)(a) on its employees.
(13) An agreement with a collective bargaining unit shall not
require a public employer to pay the costs of an independent audit
described in section 10(9).
Enacting section 1. If any part or parts of this act are found
to be in conflict with the state constitution of 1963, the United
States constitution, or federal law, this act shall be implemented
to the maximum extent that the state constitution of 1963, the
United States constitution, and federal law permit.