LEGAL ASPECTS OF
WORKING WITHOUT A
CONTRACT
2008 Bargaining, Political Action & PR
Conference
Session 102
MEA Staff Attorneys
AGENDA
► STATUS
QUO
► CONTRACT PROVISIONS THAT CONTINUE
& EXPIRE
► STEP INCREASES
► SCHOOL CALENDAR ISSUES
► GRIEVANCE & ARBITRATION ISSUES
► CONTINUED BARGAINING & JOB ACTIONS
STATUS QUO
► GENERAL
RULE
► When a labor agreement expires, many of
its provisions continue after expiration
► US SUPREME COURT
► Employer has duty to maintain existing
mandatory employment conditions until
agreement or impasse is reached
MANDATORY TOPICS
► Includes
topics that fall within the phrase
“wages, hours and other terms and
conditions of employment”
► MERC and the Courts broadly interpret
mandatory bargaining topics
EXAMPLES OF MANDATORY
TOPICS
► Wages
► Insurance
► Evaluation
Procedure
► Grievance/Arbitration
► Just Cause
► School Calendar
► Layoff/Recall
► Seniority
► Safety Issues
► Drug/Alcohol
Testing
► Transfer of bargaining
unit work
► Changes in Number of
Class Periods
► Discipline Procedures
► Overload Hours
► Step and COLA
Increases
MANDATORY TOPICS THAT
CONTINUE WHEN CBA EXPIRES
► Pay
► Fringe
Benefits (status quo may change)
► Sick Leave
► Coordination of Benefits
► Hours of Hourly Employees
► Salary Grid/Step Increase
► COLA
MANDATORY TOPICS THAT
EXPIRE WITH CBA
► THESE
INURE TO BENEFIT OF UNION
► Dues Deduction
► Released Time for Union Officers
► No Strike Clause
► Waiver of Bargaining Rights
► Duty to Arbitrate
CONTRACT EXTENSIONS
►
►
BARGAIN CONTRACT EXTENSION
Make it for a specific period of time
 30 days, etc
►
►
►
BARGAIN AUTOMATIC CONTRACT EXTENSION
Negotiate language automatically extending the labor
agreement if neither party provides timely notice of its
intent to amend, modify or terminate the agreement
If no timely action is taken, MERC will likely find that the
contract has been extended for an additional year
Step Increases
► Do
they have to pay, or can they just claim
poverty?
Step Increases
► MERC
and the courts say they have to pay!
 Detroit Public Schools, 1984 MERC Lab Op 579
 MESPA v Jackson Community College, 187 Mich
App 708 (1991)
Step Increases
► They
think they can claim poverty
 Wayne Co (Attorney Unit), 8 MPER ¶26049
(1995)
 Ida Public Schools, 9 MPER ¶27062 (1996)
Step Increases
► Financial
Exigency is no excuse!
 They must continue to bargain with us
► Single
Issue Impasse
 Can implement single element of last best offer
Step Increases
► What
you can do
 Avoid impasse!
►Bargain
early and often
►Dispute claims of financial crisis
►Request financial records and get an analysis
►Continue bargaining over non-economic issues
►Remain flexible on wages
 Re-Openers
 Conditional increases/freezes based on resolution of
unknowns (enrollment, foundation grant, etc)
School Calendar Issues
► Oh
No – It’s almost
Labor Day and we don’t
have a calendar!
When does school start?
When do we report?
Can the district impose
a calendar?
School Calendar Issues
► School
calendar is a mandatory topic of
bargaining, so . . .
► STATUS
QUO applies, but. . .
► Legislature and MERC have modified status
quo when it comes to school calendar.
School Calendar Issues
► Legislative




Mandates
PA 112 – no bargaining over “starting day”
2000 – no school on Friday before Labor Day
2005 – no school at all before Labor Day
PA 101 (2007) – common calendar w/ ISD for
winter and spring breaks
►ID
specific dates for next 5 years
►Exception- current CBA sets other dates
 But must go to common calendar when current CBA expires
School Calendar Issues
► MERC
decisions
 Imposition of calendar OK if sufficient
bargaining and normal start date near
►Business
necessity
 Imposing same schedule as prior years is seen
as effort to maintain status quo
 District must continue to bargain, or at least
show willingness to do so
School Calendar Issues
► MERC
decisions – limits on school boards
 Can’t impose too early - no business necessity
 Board must bargain calendar with each
bargaining unit – but no ULP if it agrees with
one unit before another
 Financial crisis does not justify imposition of
calendar
GRIEVANCES & ARBITRATION
► General
Rule: Events arising before contract
expiration are arbitrable even if grievance filed
after expiration.
► Events
occurring after contract expiration are
grievable and Employer must process grievance in
good faith.
However, they are not arbitrable unless the
employer does not object or the subject meets
one of the exceptions.
ARBITRATION AVAILABLE IF
► Exceptions
to General Rule that ER not
required to arbitrate after contract expires
 Vested & Accrued Rights – sick leave, pensions,
insurance, seniority.
 Contractual Obligations – “grievances shall be
processed through arbitration even after the
expiration of this agreement and even if the
parties have reached impasse.”
ARBITRATION AVAILABLE IF
 Evergreen Clause – ‘if neither party gives
written notice of desire to reopen CBA 3 months
before expiration, it renews for one year.’
 Full Retroactivity of Successor Agreement – ‘the
tentative agreement is fully retroactive.’ May be
helpful to place grievances on hold until TA.
 Addition of Vested Rights – ‘a probationary
employee has no vested right to just cause.’
ARBITRATION AVAILABLE IF
 Post expiration agreement to arbitrate – often
cheaper to arbitrate voluntarily than face law
suits and/or ULP.
 Implied-in-fact-contract – a past practice or
board policy may give rise to an implied
contract that exists after expiration of CBA.
INITIAL APPROACH
► Ask
for extension of time to file grievance in hope
that new contract obtained & fully retroactive.
► File and proceed as usual – make ER raise the
defense. Some grievance procedures require
defenses to be raised by last step before
arbitration.
► Negotiate good language during bargaining.
► Condition settlement on resolving the grievance
especially if it is over discharge of employee.
OPTIONS WHEN ER OBJECTS
► File
ULP
 ER has failed to maintain status quo – until impasse
► Circuit
Court Action:
 Breach of contract or implied in fact contract
 Only arbitration not available, but contract is still
enforceable.
► Federal
District Court Action:
 law suit for denial of 14th Amendment Due Process under
Loudermill. Denial of meaningful post discharge hearing that would
have been available with arbitration.
TWO ELEMENTS OF A STRIKE
► Some
failure or refusal to perform all or part of the
duties of employment
► For
the purpose of inducing a change in conditions
of employment or compensation
“Strike” = Partial Withholding of
Services
► Refusing
to perform extra-duty work, even if
voluntarily assumed, is a “strike” when:
 the work is routinely performed by the
bargaining unit
 has become an accepted function of the job,
and
 the refusal is for the purpose of influencing a
change in wages and working conditions
“Strike” Includes ULP Job Actions
► Before
PA 112, ULP job actions enjoyed some
legal protection
 MERC could, at its discretion order reinstatement of
dismissed employees if the "strike" was precipitated
by an employer's ULP.)
►Lamphere Schools v Federation of Teachers, 400
Mich 104, 117 (1977)
► Under
PA 112, an unfair labor practice strike is
illegal for public school employees only.
What Happens to Employees on
“Strike”
► Section
2a of PERA
► May be fined
► Employer must file notice with MERC
► Notice must be served on union and members
► Union and employees have ten days to answer
► Hearings conducted quickly
What Happens to Employees on
“Strike”
► Section
2a of PERA
► Decision must be issued within 60 days of
strike notice
► Penalty: one day of pay for each full or partial
day employee is on strike
► Fines sent to state school aid fund, not school
district!
What Happens to Employees on
“Strike”
► Section
6 of PERA
► Once employer disciplines or fires public
employee for engaging in strike, employee is
entitled to a hearing
► Request must be filed in writing with school
board within ten days after employee’s regular
pay has stopped
► School Board must render decision within 10
days after conclusion of hearing
► Decision may be appealed to local circuit court
 Standard of review is limited
Duty to Bargain Suspended
► MERC
has found that engaging in unlawful
strike activity relieves the employer of the
duty to bargain during the pendency of the
strike. Melvindale-Northern Allen Park
Schools, 1992 MERC Lab Op 400.