January 29, 2013, Introduced by Senators HOPGOOD, ANDERSON, GREGORY, HOOD, WARREN, SMITH, BIEDA, YOUNG, HUNTER, WHITMER and JOHNSON and referred to the Committee on Reforms, Restructuring and Reinventing.
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 9, 10, and 15 (MCL 423.209, 423.210, and
423.215), sections 9, 10, and 15 as amended by 2012 PA 349.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
9. (1) Public employees may do any of the following:
(a)
Organize 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.
(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. However, this act or any other law of this state does
not preclude a public employer from making an agreement with an
exclusive bargaining representative as described in section 11 to
require as a condition of employment that all employees in the
bargaining unit pay to the exclusive bargaining representative a
service fee equivalent to the amount of dues uniformly required of
members of the exclusive bargaining representative.
(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) It is the purpose of 1973 PA 25 to reaffirm the continuing
public policy of this state that the stability and effectiveness of
labor relations in the public sector require, if the requirement is
negotiated with the public employer, that all employees in the
bargaining unit shall share fairly in the financial support of
their exclusive bargaining representative by paying to the
exclusive bargaining representative a service fee that may be
equivalent to the amount of dues uniformly required of members of
the exclusive bargaining representative.
(3)
(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
if 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.
(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:
(a)
Respond to public inquiries regarding the amendatory act.
(b)
Provide the commission with sufficient staff and other
resources
to implement the amendatory act.
(c)
Inform public employers, public employees, and labor
organizations
concerning their rights and responsibilities under
the
amendatory act.
(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.
(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.
(4) (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. For fiscal year 2011-2012, $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 after March
16, 2011 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, 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. 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. 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.
(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, 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.
(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 (11) relieves 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.