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A Better Partnership
January 11, 2016

COA – Union’s repeated inclusion of prohibited provisions in contract proposal constituted bad faith

A teacher’s union bargained in bad faith when it continually insisted on including language in a collective bargaining agreement that was prohibited by state law and which the school system said it would not consider, according to the Court of Appeals in Calhoun Intermediate Education Association v. Calhoun Intermediate School District, No. 323873.  Calhoun Intermediate Education Association (“Association”) represents a bargaining unit of teachers and other professionals employed by Calhoun Intermediate School District (“District”).  The collective bargaining agreement (“CBA”) between the two expired on June 30, 2011, and both parties began negotiations for a successor CBA.  While both parties were negotiating, Act 103 (“Act”) amended Section 15(3) of the Public Employment Relations Act and made certain matters prohibited subjects of bargaining for the public school employers and the unions representing school employees.  The Act also states that those prohibited subjects “are within the sole authority of the public school employer to decide.”  The Association and the District agreed that the amended sections of the Act affected the enforceability of the disputed provisions of the expired CBA.
 
During negotiations, the District submitted a proposal that stated prohibited subjects set forth in the Act would not be proposed or included in any successor CBA.  The Association responded, stating that any provision pertaining to the prohibited subjects would be unenforceable and, as a result, could remain in the contract.  The District rejected the proposal and insisted that it would not enter into a successor CBA that included any provisions pertaining to the prohibited subjects.  The Association responded, proposing the language of the prohibited subjects be moved to an appendix, which would become part of the contract if the Act was found invalid, was repealed, or was modified by the Legislature.
 
After failing to come to an agreement at their October 3, 2011 bargaining session, the parties entered into mediation through the Michigan Employment Relations Commission (“MERC”).  Although the parties were able to reach tentative agreements on a number of issues, on December 9, 2011, the District warned the Association that further proposals embodying prohibited subjects would be considered a violation of the duty to bargain in good faith.  Nonetheless, on January 9, 2012, the Association presented another proposal that included the prohibited subjects, and subsequently, the Michigan Education Association General Counsel appeared before the District’s Board of Education and requested the language concerning the prohibited subjects be carried over into the successor CBA. 
 
On February 9, 2012, the parties met with a mediator but failed to reach an agreement, and the District filed a charge alleging that the Association committed an unfair labor practice in violation of the Act by including unenforceable language in the successor CBA.  After oral argument, the administrative law judge found that there were no material facts in dispute and recommended that the MERC order the Association to cease and desist from bargaining in bad faith and impeding the bargaining process by making proposals that included the prohibited subjects.
 
The MERC adopted the judge’s recommendation and found the Association had committed an unfair labor practice.  The Association appealed, arguing in part that its insistence on maintaining the disputed provisions in the successor CBA did not result in an impasse, and therefore, the MERC could not make a finding that it engaged in an unfair labor practice.  After reviewing the record, and giving deference to the MERC’s finding of fact, the Court of Appeals affirmed the MERC’s finding, reasoning that the Association crossed the line from discussing a prohibited subject, which it is allowed to do, and began bargaining over it in spite of the District’s clear statements that it would not include such language in the successor CBA.  The Court of Appeals concluded that the Association’s insistence on maintaining prohibited language in the successor CBA was an act of bad faith.
 

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