Bargaining and the Law:
Legal Basic for Local Leaders
Jeff Murphy
Doug Wilcox
Dan Zarimba
AGENDA
• PERA & MERC
• Topics of Bargaining
• Union Access to
Information
• When Contracts
Expire
• ULPs
• Impasse &
Implementation
• Mediation &
Factfinding
• Job Actions (Strikes)
• Duty of Fair
Representation
PERA & MERC
Doug Wilcox
MEA Staff Attorney
PERA OVERVIEW
Labor Mediation Board
• 1939 Statute
• Jurisdiction over private employers not covered by
NLRA
Hutchinson Act
• 1947 Statute
• Regulated labor relations between public
employers and employees
• Prohibited striking
• Any employee who violated Act abandoned job and
terminated employment
PERA OVERVIEW
Hutchinson Act
•
•
•
•
No mediation/fact-finding
No ULPs
No cause of action in court
True "take-it-or-leave-it" relationship Labor
PERA OVERVIEW
PERA
• PA 379 of 1965
• Amended Hutchinson Act
• Extensive public employee involvement its
passage
• Signed by Republican Governor George
Romney
PERA OVERVIEW
PERA
• Strikes still prohibited
• No longer automatic discharge
• Section 6 and Review by Circuit Court
• Right to bargain collectively over wages,
hours and other terms and conditions of
employment
• ULPs defined
NOTE: ULPs against unions added in 1973
PERA OVERVIEW
PA112 of 1994
• Expanded definition of strike
• Created subclass: public school employees
• Fines for strikes
• Prohibits job actions taken in response to
employer ULPs
• Seeks to limit role of MABOs in contract
ratification
• Extensive list of prohibited (illegal) bargaining
subjects
MERC
• MERC is part of the Department of
Labor and Economic Growth
• MERC Jurisdiction: all public employers
except civil service employees and
Michigan Supreme Court employees
MERC ENFORCES THREE LAWS
• Labor Relations and Mediation Act
(LMA)
• Public Employment Relations Act
(PERA)
• Compulsory Arbitration Act (Act 312)
MERC FUNCTIONS
• Appoints mediators, arbitrators and fact
finders
• Conducts union representation elections
• Determines appropriate bargaining units
• Adjudicates ULP cases
THE GRANHOLM
COMMISSIONERS
Christine A. Derdarian (D)
• She replaced Nora Lynch
Nino Green (D)
Eugene Lumberg (R)
• Appointed by Governor for three-year
staggered terms
ADMINISTRATIVE
LAW JUDGES
Three ALJs
• David Peltz
• Doyle O’Connor
• Julia Stern
Cases are very backed up!
Mandatory, Permissive, and
Prohibited Topics
Jeff Murphy
MEA Staff Attorney
Mandatory Bargaining Topics
• Mandatory Topics
• The duty to bargain in good faith under
Section 15 of PERA extends to those
subjects found within the phrase “wages,
hours and other terms and conditions of
employment”
• No unilateral action allowed on mandatory
topics absent impasse
Mandatory Bargaining Topics
• Wages
• Insurance coverage
(including carrier)
• Evaluation procedures
• Grievance/ arbitration
procedure
• Just cause
• School calendar
• Layoff/recall
• Seniority (for bargaining
unit members)
• Safety issues
• Working conditions for
accreted employees
• Transfer of exclusive
bargaining unit work
• Change in the number
of class periods per day
• Residency requirement
• Disciplinary procedures
• Pensions
• Overload hours
Permissive Bargaining Topics
• Those topics which fall outside the
scope of wages, hours and other terms
and conditions of employment, e.g.,
•
•
•
•
•
•
Hiring qualifications
Administrative seniority in unit
Size of work force
Recognition clause
Negotiations ground rules
“Zipper clause”
More Permissive or
Voluntary Subjects
• Maintenance of
standards clause
• Wages of
substitutes not in
unit
• Availability of
overtime
• Decision to layoff
workers
• Existing benefits of
retirees
• Outside employment
• Program cuts
• Aggregate overload
hours
Prohibited Subjects of Bargaining
(Traditional)
• Neither union nor management can
demand to bargain provisions that take
away a member's rights under the law,
such as:
• the right to be free from discrimination and
harassment
• the right to minimum wage and overtime
• the right to be free from discrimination
because of union activity
PA 112 and Prohibited Subjects
• The policyholder of an employee group
insurance benefit. (Section 15(3)(a)). Does
not prohibit bargaining on the identity of the
health care provider, carrier, or type or level
of benefits.
• The starting day of the school year and the
amount of pupil contact time required to
receive full state aid.
PA 112 and Prohibited Subjects
• The decision whether to subcontract or
outsource non-instructional support services,
the procedures for obtaining the contract with
a third party, the identity of the third party, or
the impact of the outsourcing on individual
employees or the bargaining unit.
• The use of volunteers in providing services.
PA 112 and Prohibited Subjects
• Decisions concerning use of
experimental or pilot programs
and staffing of experimental or
pilot programs and decisions
concerning use of technology to
deliver educational programs and
services and staffing to provide
the technology, or the impact of
these decisions on individual
employees or the bargaining unit.
PA 112 and Prohibited Subjects
• Every effort should be made by bargaining
units to interpret this provision as narrowly as
possible.
• Narrowly define "experimental or pilot
programs" to its common and ordinary
meaning
• "relating to or having the characteristics of an
experiment; tentative,” and only related to
technology.
PA 112 and Prohibited Subjects
• Any compensation or additional work
assignment intended to reimburse an
employee or to allow an employee to
recover any monetary penalty imposed
under the Act.
Union Access to
Information
Dan Zarimba
MEA Staff Attorney
Union Access to Information
General Rule
• The employer must provide the union with
requested information in a timely fashion to
either administer the contract or engage in
bargaining
• The information sought must be relevant to
union's bargaining issues or grievances
• “Relevance” is interpreted broadly, i.e.,
information which aids the arbitral or bargaining
process.
Union Access to Information
• When information is sought as to individual
bargaining unit members, union's access to
data is not limited by FOIA defenses (e.g.,
privacy)
• So long as information is otherwise relevant
and would normally be considered by
arbitrators in cases of like nature
• Discipline records of other employees
• Criteria to determine merit increases
Union Access to Information
• Employers must provide information
concerning non-unit employees if the union
demonstrates relevance
• Information re: leaves of absence for non-unit
members relevant as employer claims polices
were identical for both
• Topic of grievance is the propriety of non-unit
status of position
Union Access to Information
• The manner, method, and cost of
providing information are themselves
mandatory subjects of bargaining.
• Employer not necessarily required to
provide union with free copies of
requested information
Union Access to Information
• Requests for information may be
made by a union both under PERA
and FOIA
• Kent County Case
• PERA does not supersede FOIA
• Battle Creek Case (MERC)
• Initial investigation records need not be
produced until the witness testifies
Union Access to Information
• Union Access to Worksite
• BUMs have a right to discuss union
business and engage in protected
activity during non-work time and in nonwork areas
• Employers may regulate any such
activities during work time
Union Access to Information
• Union Access to Worksite
• In the organizing context, employers
need not provide access to nonemployee union organizers during
regular business hours if union has
other means of access (mail, off-site
meetings, telephones, etc)
When Contracts Expire:
Maintaining the Status Quo
Jeff Murphy
MEA Staff Attorney
When Contracts Expire
• General Rule
• The duty to bargain includes the obligation
to maintain existing mandatory terms of
employment until an agreement or impasse
has been reached
• NLRB v Katz (1962)
• The purpose is to maintain the status quo
while the parties negotiate a new contract
When Contracts Expire
• MERC follows federal law
• Even though CBA expired, its terms
continue until a new CBA or impasse is
reached
• Provisions that continue in effect all relate
“wages, hours and other terms and
conditions of employment”, i.e., mandatory
topics of bargaining
Mandatory Topics that Continue
after CBA Expires
• Sick leave policy (part
of compensation)
• Fringe benefits (type
and level of benefits)
• Coordination of
benefits (spousal
benefits)
• Hours of hourly
employees
• Salary grid/step
increases
• Big issue in recent
years!
• COLA
• Longevity
• Breaks and Lunch
Periods
Continuation of School Calendar
• Mandatory Topic, but . . .
• Legislature and MERC have modified status
quo when it comes to school calendar
• 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
Continuation of School Calendar
• 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
Continuation of School Calendar
• 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
Mandatory Topics that EXPIRE
with CBA
• Permissive topics, and
• Mandatory topics that “inure to the benefit
of the union”
•
•
•
•
•
Dues deduction
Payment for released time for union officers
No strike clause
Waiver of bargaining rights
Duty to arbitrate
Unfair Labor Practices
Doug Wilcox
MEA Staff Attorney
Unfair Labor Practices
Overview
• Charges are filed with MERC
• Legal counsel represents association at
the hearing
• Six month statute of limitations
Unfair Labor Practices
Overview
• Respondent may file an answer
• Charges can be amended or withdrawn
• Charges can be filed by and against
either party or an individual
Unfair Labor Practices
ULP Must Include Factual Details
• Must provide a clear and complete
factual statement
• Including the date, name of
employer’s agent involved and
sections of the Act allegedly violated
• ULP worksheet helps us develop
pleadings
Unfair Labor Practices
Bill of Particulars
• The charged party can ask for more
information
ULP Cases
Four Basic ULPs Against Employers
• Interference with, restraint or coercion
of public employees
• Assistance, domination or interference
with a labor organization
• Discrimination against public employees
• Refusal to bargain in good faith
Interference, Restraint or Coercion
of Public Employees
Section 9 Rights
• Organize together or to form, join or assist
in labor organizations
• Engage in lawful concerted activities for
purpose of collective bargaining or other
mutual aid and protection
• Bargain collectively with the employer
through representatives of their own free
choice
Protected Concerted Activity
Conduct must be protected by PERA
• Unlawful conduct is not protected
Concerted action
• Usually involves > one employee
Examples of Protected
Concerted Activity
• Lawful picketing or leafletting
• Organizing activities
• Speaking on behalf of other employees
about wages, hours and working
conditions
• Other activity designed to benefit more
than one employee
Conduct Which Interferes With,
Restrains or Coerces
Examples
• Denying member union representation
• Polling employees to determine views
on bargaining topics
• Retaliation for filing grievance
• Retaliation against employee because
of status as union member or officer
Conduct Which Interferes With,
Restrains or Coerces
More Examples
• Granting/withholding benefits because
employees sought union representation
• Surveillance of or threats to employees
• Interfering with union affairs or union’s
representation of its members
Saginaw Township (2005)
Police Chief Threatens Union
• I thought of killing you and burying your bodies
where no one could find them, like Hoffa
• There is a price to pay when you come in here
• If grievances are filed over stand-by pay, they’re
going to report here in uniform on stand-by
• I will put them on a “short leash”
Saginaw Township (2005)
Charge against Employer
• Statements were threatening, coercive
and interfered with Section 9 rights
• Held: An employer cannot threaten
employees or retaliate against them
City of Detroit (2005)
Retaliatory Discharge of Union Steward
• Disciplinary conference
• Steward objected to discipline
• Supervisor asked member for driver’s
license
• Steward said “no”
• Heated discussion followed
• Steward fired for abusive language
City of Detroit (2005)
ALJ
• Steward was engaged in protected
activity
• Steward’s behavior was not flagrant
• Steward never threaten supervisor
• Steward is reinstated with full back pay
Assistance, Domination or
Interference with Union
Domination
• Supervisors included in non-supervisory unit
Assistance to Union
• Employer can’t assist one union over
another
• If there is a question concerning
representation (QCR), employer must stop
bargaining with incumbent union
Assistance, Domination or
Interference with Union
Interference with Union
• Communicating with members to
degrade or bypass union
• Encouraging decertification efforts
• Conduct that drives a wedge between
union and its members
Discrimination Against Employees
Unlawful to discriminate in regard to hire,
terms or other conditions of employment
in order to encourage/discourage union
membership
• Protected Concerted Activity
• Discrimination against employees
• Focus is on employer’s motive
Discrimination Against Employees
Unlawful Conduct
• Discipline and discharge motivated by
anti-union animus
• Pay different wages
• Transfer or reassign employee
• Lay off or fail to recall employee
Discrimination Against Employees
Employer Can’t Encourage Union Membership
• Super-seniority clauses
• Special protection for union officers is
problematic
Discrimination Against Employees
Discrimination for Testifying or Instituting
Proceedings under Act
•Employer’s aren’t usually this dumb
•Actual participation is not required
Discrimination Against Employees
Dual Motive Test
• Union must show union activity was a
motivating factor
• Union often relies upon suspicious timing
• Employer must show it would have
made the same decision in the absence
of protected conduct
City of Detroit (Planning &
Development Dept) (2005)
Union Steward’s Conduct not Protected
• Steward accessed database to collect
information about employee’s work
production without authorization
• Steward gave info to manager to show
another employee was unfairly
disciplined
• Steward disciplined for three days
City of Detroit (Planning &
Development Dept) (2005)
ALJ:
• Steward’s conduct was unjustified
• Removing private information from files
for union purposes without approval
was not protected
Refusal to Bargain ULPs
• Unlawful for Employer to refuse to
bargain collectively with union
representatives
• Issues
•
•
•
•
Employer must bargain in good faith
Impasse
Duty to provide information
Unilateral change in employment conditions
Refusal to Bargain ULPs
How to Prove Bad Faith Bargaining
• Authority to bargain
• Meeting at reasonable times
• Content of proposals
• Preconditions on bargaining
• Conduct away from table
• Unilateral changes
Orion Township (2005)
Duty to Bargain After Factfinder’s Report
• Report issued 12/6
• Parties met on 1/9
• 30 minute meeting – parties did not
really negotiate
• Union subsequently requested future
bargaining
Orion Township (2005)
MERC
• Single meeting after fact finding is not
good faith bargaining.
• Parties must at least meet and bargain
during 60 day period after report is
issued.
Unfair Labor Practices
Union Unfair Labor Practices
• Restrain (not interfere) or coerce public
employees in exercising their rights under
the Act, including the right to select a
bargaining representative
• Cause or attempt to cause an employer to
discriminate against an employee
• Refuse to bargain collectively
Unfair Labor Practices
Examples of Union ULPs
• Making actual or threatened economic
reprisals and/or physical violence
• Causing employer to discriminate
(super-seniority for union officers
can be problematic)
Unfair Labor Practices
Conclusion
• Focus of ULPs is on process, not
substance – the process must be fair.
• ULP Worksheet focuses on bargaining.
• Keep it handy for reference.
• Take good notes – this is critical!
Unfair Labor Practices
Conclusion
• But, watch for ULPs outside of bargaining
• Unilateral changes in working conditions
• Changes in practice or policy affecting working
conditions
• Surveys of members
• Side deals or direct dealing with members
• Repudiation of all or part of the contract
Impasse and Imposition in
Collective Bargaining
Jeff Murphy
MEA Staff Attorney
Effect of Impasse
• Allows employer to take unilateral action
on mandatory topics of bargaining
Definition of Impasse
• Point at which further bargaining would
be futile
• Positions of parties have solidified and
further bargaining would be useless
Impasse
• Because the finding of an impasse depends
on the facts of each case, a bargaining
impasse does not readily lend itself to an
objective definition applicable to all cases.
Impasse Factors
• Proper disclosure of information by
employer
• Length of bargaining
• Willingness of the parties to formulate
and offer new proposals
• Business necessity
Impasse in the Old Days
Pre-Engler Days
• MERC was reluctant to find impasse
• City of Saginaw (MERC, 1982)
• No impasse after eight sessions over a five-week
period even though union rejected proposal
• No impasse if fact-finding petition is pending
The Engler Years
MERC is more willing to find impasse
• Wayne County (MERC, 1995)
• Impasse upheld after only four sessions
over a three month period!
• Ida Public Schools (MERC, 1996)
• Impasse after only four sessions in
summer!
The Engler Years
Waldron Area Schools (1997)
• Impasse even though district did not present
its offer as its “last best offer” no impasse was
declared when union rejected offer, and
employer agreed to schedule another
meeting
The Engler Years
City of Detroit (1996)
• A union ignores or avoids confronting
employer demands for cutbacks at its peril.
Ferris State University (1998)
• Impasse even though parties had only one
short mediation session
Granholm Commission
MERC is slowly returning to
earlier standards
•Oakland Community College (2001)
• Employer must prove that neither party, not
just one, was willing to compromise!
•Orion Twp (2005)
• Once a factfinder’s report is issued, the
parties must bargain over the substance of
report for a reasonable period of time.
Impasse
Instant Impasse
• A party cannot isolate an issue and upon receiving a
readily foreseeable response from its opponent
create an "instant impasse"
Constructive Impasse
• Parties may be deemed at "impasse" on the school
calendar for, despite the fact that the school
calendar is a mandatory bargaining topic, if
• sufficient bargaining has taken place, and
• business necessity requires announcement of school
calendar
• following prior year calendar as closely as possible is seen
by MERC as an attempt to maintain the status quo
Selective Implementation
of Last Offer
• Employer may selectively implement
elements of its last package offer upon
reaching impasse.
• Employer may implement a final offer that
incorporated elements of its official or
table position and elements of its
"package" proposal
• Employer not required to identify proposal
as “last best offer”
Selective Implementation
of Last Offer
• Employer is not required to reinstate
dues deduction or grievance/arbitration
as part of implemented work rules even
though provisions were part of the
employer’s last offer
• After Impasse, the employer is free to
impose all, or part, of its proposals
Ways to Avoid Impasse
• Employer’s last offer cannot be
implemented if fact-finding petition is
pending
• Race to courthouse steps!
• Employer can’t implement last offer
until it has fulfilled all of union’s
request for information needed for
bargaining
Ways to Avoid Impasse
• At the table
• Always be willing to consider the matter
further
• When it is difficult to move significantly
toward the board's last offer, try
packages that rearrange the pieces.
Ways to Avoid Impasse
• Ask for another bargaining session
before a session breaks up
• Indicates that bargaining should continue
• Keep pressing the board for proposals
• Never say, "That is our final position and
we are not moving further"
Ways to Avoid Impasse
• Request Mediation
• It is more difficult for the board to declare
impasse when mediation is in progress
• Once a mediator is involved, press the
mediator to continue sessions
• Mediation needs a fair chance to work
• But, mediation won’t prevent the employer
from declaring impasse and imposing its’
last offer
Breaking Impasse
• Impasse can be broken
• Impasse is a temporary situation, as most
contracts eventually settle
• Duty to bargain continues even during impasse
• Impasse is broken if there are changes in
conditions
• Once a there has been a significant change in
conditions, duty to bargain becomes more
urgent
Never at Impasse
Mediation and FactFinding
Dan Zarimba
MEA Staff Attorney
Mediation
• The parties have an affirmative duty to notify
MERC 60 days before a contract expires of
the status on negotiations. (MCL 423.207)
• Mediators are state employees who are
assigned (not selected by parties) by MERC.
Mediation
• Mediators have no
authority to force
concessions on
either party. (R
423.121)
• "Information
disclosed by a party
to a mediator in the
performance of
mediation functions
shall NOT be
divulged voluntarily
or by compulsion.“
(R 423.122)
Mediation
• Mediator does have
authority to designate
a date, time, and place
for mediation
conferences.
• Failure to attend may
be a ULP!
Mediation
• Failure to participate in and/or allow
adequate time for mediation may be a
ULP.
• East Jordan Public Schools, 1982
MERC Lab Op 1101. Union committed
ULP by going on strike after four
bargaining sessions!
Impasse Mediation
• Section 7A of PA 112 provides for an
additional form of mediation.
DO NOT AGREE TO SUBMIT
TO THIS "NEW" MEDIATION!
Fact-Finding
• The union and/or employer may apply for
fact-finding; also the Commission can order
fact-finding on its own (R 423.131).
• MERC appoints fact finders who are not state
employees, but independent contractors.
• MERC will appoint a person from the panel
mutually agreed by the parties;
• if no such agreement, a list of three fact finders is
sent out and each party can strike one name.
Fact-Finding
• Fact-finding
hearings are public
(R423.136), as are
the findings and
recommendations
• A form is available
to file for factfinding. File a
request under R
423.132 -133
• The other side is
required to file an
answer to the request
for fact-finding
(R 423.134)
Fact-Finding
• Fact-finding reports
are not binding on
either side.
• On rare occasions, the
parties may agree,
before the report is
issued, that both will
accept it as binding.
Fact-Finding
• Once a petition for fact finding is filed
with MERC, the employer may not
implement its last offer until at least 60
days after the fact finder’s report has
been issued
• But only if the board has engaged in
good faith bargaining over the fact
finder’s report.
• Remember Orion Twp case!
Strikes by Public School Employees
Dan Zarimba
MEA Staff Attorney
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 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 of Fair Representation
Doug Wilcox
MEA Staff Attorney
Source of the Duty
• Implied duty arising through PERA - in
exchange for employees giving up their
individual rights to bargain directly with
their employers
Statement of the Duty
• GOOLSBY v CITY OF DETROIT (1984)
• To serve the interests of all members
without hostility or discrimination
• To exercise discretion with complete
good faith and honesty
• To avoid arbitrary conduct
Applicability of the Duty
• Grievance Processing
• Contract Negotiation
• Internal Union Affairs
Grievance Processing
• Not every grievance must be
submitted to arbitration
• Union’s decision must be
made without hostility or
discrimination, rationally and
in complete good faith.
Grievance Time Lines
• Many DFR claims arise
from the untimely
processing of
grievances.
• Every effort should be
made to see that
grievances are filed and
processed on a timely
basis.
Quality of Representation
Unless decisions are made
arbitrarily or in bad faith,
issues involving case
presentation, utilization of
witnesses, evidence
produced, brief writing, and
related matters rarely form
the basis of a DFR claim.
Involve the Grievant
• drafting the grievance
• gathering evidence
• outlining the case
Consider the grievant’s ideas even if they are
ultimately rejected.
Explain why things are being done the way
they are, especially if the grievance will likely
be dropped before arbitration.
Merits of the Grievance
• The primary consideration in whether to
file a grievance or take it to arbitration is
the merits of the grievance (likelihood of
success).
• Failure to file or arbitrate a meritorious
grievance creates a likely situation for
the filing of a DFR claim.
Other Legitimate Considerations
• Burden another grievance will place on the
contractual grievance machinery
• Amount at stake
• Cost of the process
• Desirability of winning
• Use extreme caution if a meritorious
grievance might be dropped on the basis of
one of these secondary considerations!
Compromise and Settlement
Theory:
• Union has the right to
compromise or settle a
grievance with or without
an individual’s consent
Reality:
• Settlement without the
grievant’s consent is an
invitation to a DFR claim.
Representing Non-Members
• The union has a duty to fairly represent
ALL members of the bargaining unit,
regardless of union membership status.
Negotiations
• As a practical matter, the union is given
much broader discretion in bargaining
than in grievance processing.
Negotiations
• “Inevitably, differences arise in the manner
and degree to which the terms of the
negotiated agreement affect individual
employees and classes of employees.
The mere existence of such differences
does not make them invalid. The complete
satisfaction of all who are represented is
hardly to be expected...” Ford Motor
Company v Huffman (1953)
Duty to Inform
While there is no duty to
inform the general membership
of progress in negotiations, or
the terms of a TA, efforts along
these lines are useful in
avoiding subsequent DFR
claims.
Advancing Interests of Identifiable Groups
• Union v Individuals
• Member v Member
• Special Treatment of
Union Officers
• Illegal Employer
Acts
Union v Individuals
• The standard in negotiations is whether
the union’s actions were intended to
achieve the greatest possible good for
the greatest number of members.
Member v Member
• Can favor some members
over others where there is
a rational basis (seniority,
education level,
qualifications, etc)
• Avoid irrational
discrimination!
Special Treatment of
Union Officers
• Super seniority, special assignment
rights, and other preferential treatment
of union officers should be handled with
care.
• Such treatment should be limited to that
necessary to carry out the functions of
the officer’s position.
Duty to Prevent Illegal
Employer Conduct
• Obscure case authority (very rare)
• A union may have the affirmative duty,
through negotiations or otherwise, to prevent
an employer from acting illegally.
• Refer questions regarding the legality of
bargaining demands or correction of other
illegal employer conduct to Legal Services.
Internal Union Administration
• The constitution and bylaws of the local,
state, and national organizations
constitute a “contract” between the
membership and the organizations.
• Violation of those procedures to the
detriment of one or more members may
result in litigation seeking damages and
equitable relief.
DFR Claims
• File either in circuit
court OR as a ULP
charge with MERC
• Six-month statute of
limitations
• Members must
exhaust union
remedies first
Damages and Remedies
Legal Remedies:
• back pay
• front pay
• consequential
damages (e.g., job
search costs)
• attorney fees
Equitable Remedies:
• reinstatement
• seniority awards
• assignment or
transfer
Bargaining and the Law:
Legal Basic for Local Leaders
Thank you!