1. Legal Update MNA Spring Seminar 2015 Lansing Crowne Plaza March 13, 2015 Download this presentation: www.luskalbertson.com/mnaspring2015 Robert T. Schindler Lusk & Albertson, PLC (248) 988-5696 RSchindler@LuskAlbertson.com Follow us on Twitter: @LuskAlbertson

2. What Will We Cover  Layoff/Recall  Freedom to Work  PA 54 and 152  Teacher Placement  Effect of PSBs  Teacher Unemployment  Subcontracting  Arbitrary and Capricious standard  But wait... there’s more! (assuming we have the time to get to it)

3. Layoff and Recall So... Do I really have to bring that person back?

4. Layoff/Recall at the MERC  Pontiac School District, 28 MPER ¶1 (May 20, 2014)  CBA that expired in 2011 had provision that limited when layoffs could occur and had a meet and confer requirement  District implemented layoff/recall policy prior to reaching successor CBA.  Employer had no duty to follow CBA on layoff/recall after expiration, no duty to follow past practice, and had right to unilaterally create policy.

5. Layoff/Recall at the MERC  Pontiac School District, 28 MPER ¶1 (May 20, 2014) (cont.)  “After 2011 PA 103 was enacted, provisions of the parties’ expired collective bargaining agreement that applied to decisions regarding layoff and recall or teacher placement that once were mandatory subjects of bargaining became prohibited subjects of bargaining pursuant to § 15(3)(j) and (k). Therefore, the Employer is no longer required to comply with those provisions of the expired contract. The same is true of past practices that may have modified the parties’ collective bargaining agreement, if those past practices applied to decisions regarding layoff and recall or teacher placement. “

6. Layoff/Recall at the STC  Jurisdiction  Shaw v Waterford School District, STC# 13- 32 (8/28/14)  Affirmed earlier decisions that STC has jurisdiction to hear bad faith/subterfuge claims related to layoff/recall  Knapp v Reed City Public Schools, STC# 13-51 (10/07/14)  Teacher files claim of appeal related to School District’s failure to recall her

7. Layoff/Recall at the STC  Knapp v Reed City Public Schools, STC# 13-51 (10/07/14) (cont.)  Teacher taught adult & alt. ed. until 2011, then moved to middle school social studies and laid off after 1 year  Position opens but Teacher not recalled because District thought they “could do better.” Teacher rated “minimally effective” despite the fact that her score put her in “effective” range.  STC held decision was arbitrary given the circumstances

8. Layoff/Recall at the STC  Knapp v Reed City Public Schools, STC# 13-51 (10/07/14) (cont.)  The administrator’s “decision not to recall appellant based on his preference to find a ‘better’ candidate was arbitrary. To sanction an administrator’s decision not to recall an effective, certified, qualified, and highly qualified tenured teacher based solely on the administrator’s subjective and unreviewable desire to find someone who was ‘better’ would render utterly meaningless a laid-off tenured teacher’s right to continuous employment and would call into question the very purpose of the Teachers’ Tenure Act.”

9. Layoff/Recall at the STC  Bad Faith/Subterfuge  Johnson v Pontiac School District, STC# 13-3 (2/10/14)  No bad faith subterfuge when District rescinded agreement and decided not to recall based on change in student numbers  Wandrie v Atherton Community Schools, STC# 13-16 (4/24/14)  Persistent correction of action did not show personal animus and demonstrate bad faith.

10. Layoff/Recall at the STC  Wiedendorf v West Bloomfield Schools, STC# 14-3 (9/22/14) (decision of ALJ, no exceptions filed)  Decision not to recall teacher not arbitrary or capricious when decision based on factors related to experience or performance and set out in policy  Specifically, teacher had never taught subject or at grade level

11. Layoff/Recall at the COA  Baumgartner v Perry Public Schools; Aubert v Reed City Public Schools; Wright v Flint Community Schools  Consolidated for the COA from the STC  Oral argument heard March of 2014

12. Layoff/Recall at the COA

13. Freedom to Work... or freedom to not join the union.

14. Freedom to Work  Taylor School District, MERC Case No. C13 G-133 (2/13/15)  Ten year union security agreement ratified by parties after passage of FTW law but before effective date violates rights of individual employees  MERC held that by limiting individuals’ rights with knowledge that doing so bypassed the intent of the legislature was unlawful.

15. Freedom to Work  Taylor School District, MERC Case No. C13 G- 133 (2/13/15)  “The answer is not found in the length of the contract, but in whether the Employer has violated § 10(l)(a) and (c) of PERA by interfering with, restraining, or coercing public employees in the exercise of rights guaranteed by § 9 ‘in order to encourage membership in a labor organization.’ We hold that the Employer violated § 10(1)(a) of PERA by coercing Charging Parties to financially support the Union.”

16. Freedom to Work  Saginaw Education Association, MERC Case No. CU13 I-054 et al., (9/2/14) (decision of ALJ awaiting decision on exceptions)  August window to withdraw from the union without making known that window exists is in violation of FTW law  Amounts to an “unlawful restriction on employees’ right to resign”

17. PA 152 and 54 Finally some clarity... oh, wait a minute...

18. PA 152  Decatur Public Schools, 27 MPER ¶41 (1/21/14)  It is not within MERC’s jurisdiction to interpret PA 152 – not part of PERA  Whether district is 80/20 or hard cap is a policy decision of the BOE and need not be bargained  “Public employers continue to have the duty to bargain over health care benefits and the costs of such benefits to the extent that the costs of those benefits are within the parameters of the public employer's choice of the options provided by PA 152.”

19. PA 152  MERC has generally held it will not find a ULP where employer is seeking to comply with PA 152 in good faith  See, Shelby Twp, 28 MPER ¶21 (2014); City of Southfield, 28 MPER ¶43 (2014); Watersmeet Twp School District, 28 MPER ¶36 (2014); West Iron County Public Schools, 28 MPER ¶46 (2014)  That does not mean a school district can alter related mandatory terms of bargaining  See, Garden City Public Schools, MERC Case No. C13 K-180 (2/11/15)

20. PA 54  Bedford Public Schools v Bedford EA, COA Case No. 314153; ___ Mich App ___ (6/10/14)  No lane changes after expiration of CBA  Harrison Twp, 27 MPER ¶50 (2/25/14)  No longevity payments after expiration  Schoolcraft County, 28 MPER ¶47 (11/24/14)  Employer could not pass on entire increased cost of pension benefits

21. Teacher Placement So you mean I really don’t have to run it by the union first?

22. Teacher Placement  Pontiac School District, 27 MPER ¶52 (3/27/14) (“Pontiac I”)  Teacher in MS accused of inappropriate conduct and transferred to HS  Discipline and teacher placement PSBs  No need to follow language in expired CBA – District could act unilaterally  MERC also found District could issue surveys to students on quality of teachers – evaluation is a PSB

23. Teacher Placement  Ionia Public Schools, 27 MPER __; MERC Case No. C12 G-136 (4/22/14) (“Ionia I”)  Bid-bump meeting is teacher placement  Pontiac Public Schools, 27 MPER ¶60 (5/21/14) (“Pontiac II”)  School District did not commit ULP by refusing to follow old MOU on handling of teacher vacancies  School District also did not commit ULP by repudiating settlement agreement

24. Teacher Placement  Pontiac School District, 28 MPER ¶34 (10/16/14) (“Pontiac III”)  The term teacher placement is to be read broadly (even more broadly than evaluation, discipline, or personnel decisions)  Includes the reassignment of teachers – as opposed to merely the initial assignment

25. Effect of PSBs What happens if the union doesn’t accept no for an answer?

26. Insistence on PSB  Calhoun ISD, 28 MPER ¶26 (9/15/14)  Insistence on a PSB remaining in the CBA is an unfair labor practice  Ionia Public Schools, 28 MPER ¶58 (12/18/14) (“Ionia II”)  “Where a public school employer has clearly and unambiguously” stated it will not bargain over a PSB, it is a ULP for a union to “demand” that it bargain  Language of CBA does not carry over after expiration, whether dealing with a mandatory or prohibited subject

27. Litigating a PSB  Pontiac III  Taking a PSB (here teacher placement) to arbitration is a ULP  No attorney fees   Pontiac School District, 28 MPER ¶56 (12/18/14) (“Pontiac IV”)  When District refused to follow MOU on layoff, union filed an injunction  If lawsuit is “reasonably based” and not done in retaliation, no ULP

28. Teacher Unemployment You may not have to pay salary and unemployment

29. Newman v River Rouge Schools  COA Case No. 314033 (7/24/14)  Group of teachers disputing time period of eligibility for unemployment benefits  “In other words, the current law expressly provides that compensation payable during a layoff may constitute remuneration sufficient to determine that an individual is not entitled to unemployment benefits, even if the amounts paid are not earned during the layoff.”

30. Subcontracting Keeping a PSB a PSB by jumping through the right hoops

31. Subcontracting Noninstructional Support  Walled Lake Consolidated School District, 28 MPER ¶27 (9/17/14) (no exceptions)  A “bid” seeking to continue bargaining relationship is not a bid at all.  Reese Public School District v Reese PSPA MEA/NEA, COA Case No. 316528 (12/30/14)  Secretaries are “noninstructional support” personnel.

32. Subcontracting Psychologists  Port Huron Area School District, 28 MPER ¶45 (11/19/14)  School District agreed to contract with RESA for school psychologists after expiration of CBA  Asked union if it wanted to bargain or bid, but union refused  Since notice and no demand from union, no ULP by District  Never addressed whether “noninstructional support”

33. Arbitrary or Capricious I think I know what arbitrary means, but what is capricious?

34. Arbitrary or Capricious  Goulooze v Hudsonville Public Schools, STC# 13-5 (1/16/14)  Coming to school intoxicated (even with mitigating circumstances)  Salary in escrow did not need to be returned  Towns v Chesaning Union Schools, STC# 13-4 (2/10/14)  Teacher making threats to colleague  Claiming he would “go postal” and that he would have a better chance at getting a job while in jail than out in the world

35. Arbitrary or Capricious  Whitley v Cadillac Area Schools, STC# 13- 41 (5/20/14)  Two serious DUIs within under two months – including an accident where she flipped her car  Taught health class  Gonzalez v Kelloggsville Public Schools, STC# 13-43 (7/22/14)  Improper sexual relationship with student over a decade prior sufficient for discharge

37. A Couple of Misc. Cases  Wellman v Melvindale-Northern Allen Park Public Sch Dist, COA Case No 318423 (7/22/14)  No duty for a school district to apply for a temporary teacher permit for a teacher when certification has lapsed  Jones-Salaam v Baldwin Community Schools, STC# 14-54 (2/9/15)  Timely service of claim of appeal is a necessary element for jurisdiction of STC

38. Questions? Robert T. Schindler Lusk & Albertson, PLC (248) 988-5696 RSchindler@LuskAlbertson.com