legal aspects of working without a contract

LEGAL ASPECTS OF LEGAL ASPECTS OF WORKING WITHOUT A WORKING WITHOUT A

CONTRACTCONTRACT

2008 Bargaining, Political Action & 2008 Bargaining, Political Action & PR ConferencePR Conference

Session 102Session 102MEA Staff AttorneysMEA Staff Attorneys

AGENDAAGENDA

►STATUS QUOSTATUS QUO►CONTRACT PROVISIONS THAT CONTRACT PROVISIONS THAT

CONTINUE & EXPIRECONTINUE & EXPIRE►STEP INCREASESSTEP INCREASES►SCHOOL CALENDAR ISSUESSCHOOL CALENDAR ISSUES►GRIEVANCE & ARBITRATION ISSUESGRIEVANCE & ARBITRATION ISSUES►CONTINUED BARGAINING & JOB CONTINUED BARGAINING & JOB

ACTIONSACTIONS

STATUS QUOSTATUS QUO

►GENERAL RULEGENERAL RULE►When a labor agreement expires, many When a labor agreement expires, many

of its provisions continue after of its provisions continue after expirationexpiration

►US SUPREME COURTUS SUPREME COURT►Employer has duty to maintain existing Employer has duty to maintain existing

mandatory employment conditions until mandatory employment conditions until agreement or impasse is reachedagreement or impasse is reached

MANDATORY TOPICSMANDATORY TOPICS

► Includes topics that fall within the Includes topics that fall within the phrase “wages, hours and other terms phrase “wages, hours and other terms and conditions of employment”and conditions of employment”

►MERC and the Courts broadly interpret MERC and the Courts broadly interpret mandatory bargaining topicsmandatory bargaining topics

EXAMPLES OF MANDATORY EXAMPLES OF MANDATORY TOPICSTOPICS

►WagesWages► InsuranceInsurance► Evaluation ProcedureEvaluation Procedure►Grievance/ArbitrationGrievance/Arbitration► Just CauseJust Cause► School CalendarSchool Calendar► Layoff/RecallLayoff/Recall► SenioritySeniority► Safety IssuesSafety Issues

► Drug/Alcohol TestingDrug/Alcohol Testing► Transfer of Transfer of

bargaining unit workbargaining unit work► Changes in Number Changes in Number

of Class Periodsof Class Periods► Discipline ProceduresDiscipline Procedures► Overload HoursOverload Hours► Step and COLA Step and COLA

IncreasesIncreases

MANDATORY TOPICS THAT MANDATORY TOPICS THAT CONTINUE WHEN CBA CONTINUE WHEN CBA

EXPIRESEXPIRES►PayPay►Fringe Benefits (status quo may Fringe Benefits (status quo may

change)change)►Sick LeaveSick Leave►Coordination of BenefitsCoordination of Benefits►Hours of Hourly EmployeesHours of Hourly Employees►Salary Grid/Step IncreaseSalary Grid/Step Increase►COLACOLA

MANDATORY TOPICS THAT MANDATORY TOPICS THAT EXPIRE WITH CBAEXPIRE WITH CBA

►THESE INURE TO BENEFIT OF THESE INURE TO BENEFIT OF UNIONUNION

►Dues DeductionDues Deduction►Released Time for Union OfficersReleased Time for Union Officers►No Strike ClauseNo Strike Clause►Waiver of Bargaining RightsWaiver of Bargaining Rights►Duty to Arbitrate Duty to Arbitrate

CONTRACT EXTENSIONSCONTRACT EXTENSIONS

► BARGAIN CONTRACT EXTENSIONBARGAIN CONTRACT EXTENSION► Make it for a specific period of timeMake it for a specific period of time

30 days, etc30 days, etc► BARGAIN AUTOMATIC CONTRACT EXTENSIONBARGAIN AUTOMATIC CONTRACT EXTENSION► Negotiate language automatically extending the Negotiate language automatically extending the

labor agreement if neither party provides timely labor agreement if neither party provides timely notice of its intent to amend, modify or terminate notice of its intent to amend, modify or terminate the agreementthe agreement

► If no timely action is taken, MERC will likely find If no timely action is taken, MERC will likely find that the contract has been extended for an that the contract has been extended for an additional yearadditional year

Step IncreasesStep Increases►Do they have to pay, or can they just Do they have to pay, or can they just

claim poverty?claim poverty?

Step IncreasesStep Increases

►MERC and the courts say they have to MERC and the courts say they have to pay!pay! Detroit Public SchoolsDetroit Public Schools, 1984 MERC Lab Op , 1984 MERC Lab Op

579579 MESPA v Jackson Community CollegeMESPA v Jackson Community College, 187 , 187

Mich App 708 (1991)Mich App 708 (1991)


►They They thinkthink they can claim poverty they can claim poverty Wayne Co (Attorney Unit),Wayne Co (Attorney Unit), 8 MPER 8 MPER ¶¶26049 26049

(1995)(1995) Ida Public SchoolsIda Public Schools, 9 MPER , 9 MPER ¶¶27062 (1996)27062 (1996)


►Financial Exigency is no excuse!Financial Exigency is no excuse! They must continue to bargain with usThey must continue to bargain with us

►Single Issue ImpasseSingle Issue Impasse Can implement single element of last best Can implement single element of last best

offeroffer


►What you can doWhat you can do Avoid impasse!Avoid impasse!

►Bargain early and oftenBargain early and often►Dispute claims of financial crisisDispute claims of financial crisis►Request financial records and get an analysisRequest financial records and get an analysis►Continue bargaining over non-economic issuesContinue bargaining over non-economic issues►Remain flexible on wagesRemain flexible on wages

Re-OpenersRe-Openers Conditional increases/freezes based on resolution of Conditional increases/freezes based on resolution of

unknowns (enrollment, foundation grant, etc)unknowns (enrollment, foundation grant, etc)

School Calendar IssuesSchool Calendar Issues

►Oh No – It’s almost Oh No – It’s almost

Labor Day and we don’tLabor Day and we don’t

have a calendar!have a calendar!

When does school start?When does school start?

When do we report?When do we report?

Can the district imposeCan the district impose

a calendar?a calendar?


►School calendar is a mandatory topic School calendar is a mandatory topic of bargaining, so . . . of bargaining, so . . .

►STATUS QUOSTATUS QUO applies, but. . . applies, but. . . ►Legislature and MERC have modified Legislature and MERC have modified

status quo when it comes to school status quo when it comes to school calendar.calendar.


►Legislative MandatesLegislative Mandates PA 112 – no bargaining over “starting day”PA 112 – no bargaining over “starting day” 2000 – no school on Friday before Labor Day2000 – no school on Friday before Labor Day 2005 – no school at all before Labor Day2005 – no school at all before Labor Day PA 101 (2007) – common calendar w/ ISD for PA 101 (2007) – common calendar w/ ISD for

winter and spring breakswinter and spring breaks►ID specific dates for next 5 yearsID specific dates for next 5 years►Exception- current CBA sets other datesException- current CBA sets other dates

But must go to common calendar when current CBA But must go to common calendar when current CBA expiresexpires


►MERC decisionsMERC decisions Imposition of calendar OK if sufficient Imposition of calendar OK if sufficient

bargaining and normal start date nearbargaining and normal start date near►Business necessityBusiness necessity

Imposing same schedule as prior years is Imposing same schedule as prior years is seen as effort to maintain status quo seen as effort to maintain status quo

District must continue to bargain, or at District must continue to bargain, or at least show willingness to do soleast show willingness to do so


►MERC decisions – limits on school MERC decisions – limits on school boardsboards Can’t impose too early - no business Can’t impose too early - no business

necessitynecessity Board must bargain calendar with each Board must bargain calendar with each

bargaining unit – but no ULP if it agrees bargaining unit – but no ULP if it agrees with one unit before anotherwith one unit before another

Financial crisis does not justify imposition Financial crisis does not justify imposition of calendar of calendar

GRIEVANCES & ARBITRATIONGRIEVANCES & ARBITRATION

►General Rule: Events arising General Rule: Events arising beforebefore contract contract expiration are arbitrable even if grievance expiration are arbitrable even if grievance filed after expiration.filed after expiration.

► Events occurring after contract expiration Events occurring after contract expiration are grievable and Employer must process are grievable and Employer must process grievance in good faith.grievance in good faith.

However, they are not arbitrable unless the However, they are not arbitrable unless the employer does not object or the subject employer does not object or the subject meets one of the exceptions.meets one of the exceptions.

ARBITRATION AVAILABLEARBITRATION AVAILABLE IF IF

►Exceptions to General Rule that ER not Exceptions to General Rule that ER not required to arbitrate after contract required to arbitrate after contract expiresexpires

Vested & Accrued Rights – sick leave, Vested & Accrued Rights – sick leave, pensions, insurance, seniority.pensions, insurance, seniority.

Contractual Obligations – “grievances shall Contractual Obligations – “grievances shall be processed through arbitration even after be processed through arbitration even after the expiration of this agreement and even if the expiration of this agreement and even if the parties have reached impasse.” the parties have reached impasse.”

ARBITRATION AVAILABLE ARBITRATION AVAILABLE IFIF

Evergreen Clause – ‘if neither party gives Evergreen Clause – ‘if neither party gives written notice of desire to reopen CBA 3 written notice of desire to reopen CBA 3 months before expiration, it renews for one months before expiration, it renews for one year.’year.’

Full Retroactivity of Successor Agreement – Full Retroactivity of Successor Agreement – ‘the tentative agreement is fully retroactive.’ ‘the tentative agreement is fully retroactive.’ May be helpful to place grievances on hold May be helpful to place grievances on hold until TA.until TA.

Addition of Vested Rights – ‘a probationary Addition of Vested Rights – ‘a probationary employee has no vested right to just cause.’employee has no vested right to just cause.’

ARBITRATION AVAILABLE ARBITRATION AVAILABLE IFIF

Post expiration agreement to arbitrate – Post expiration agreement to arbitrate – often cheaper to arbitrate voluntarily than often cheaper to arbitrate voluntarily than face law suits and/or ULP.face law suits and/or ULP.

Implied-in-fact-contract – a past practice Implied-in-fact-contract – a past practice or board policy may give rise to an or board policy may give rise to an implied contract that exists after implied contract that exists after expiration of CBA.expiration of CBA.

INITIAL APPROACHINITIAL APPROACH

► Ask for extension of time to file grievance in Ask for extension of time to file grievance in hope that new contract obtained & fully hope that new contract obtained & fully retroactive.retroactive.

► File and proceed as usual – make ER raise the File and proceed as usual – make ER raise the defense. Some grievance procedures require defense. Some grievance procedures require defenses to be raised by last step before defenses to be raised by last step before arbitration.arbitration.

► Negotiate good language during bargaining.Negotiate good language during bargaining.► Condition settlement on resolving the grievance Condition settlement on resolving the grievance

especially if it is over discharge of employee.especially if it is over discharge of employee.

OPTIONS WHEN ER OPTIONS WHEN ER OBJECTSOBJECTS

► File ULP File ULP ER has failed to maintain status quo – until ER has failed to maintain status quo – until

impasseimpasse

► Circuit Court Action: Circuit Court Action: Breach of contract or implied in fact contractBreach of contract or implied in fact contract Only arbitration not available, but contract is still Only arbitration not available, but contract is still

enforceable.enforceable.

► Federal District CourtFederal District Court ActionAction:: law suit for denial of 14law suit for denial of 14thth Amendment Due Process under Amendment Due Process under

Loudermill. Denial of meaningful post discharge hearing Loudermill. Denial of meaningful post discharge hearing that would have been available with arbitration.that would have been available with arbitration.

TWO ELEMENTS OF A STRIKETWO ELEMENTS OF A STRIKE

► Some failure or refusal to perform all or part Some failure or refusal to perform all or part of the duties of employmentof the duties of employment

► For the purpose of inducing a change in For the purpose of inducing a change in conditions of employment or compensationconditions of employment or compensation

““Strike” = Partial Withholding of Strike” = Partial Withholding of ServicesServices

►Refusing to perform extra-duty work, Refusing to perform extra-duty work, even if voluntarily assumed, is a even if voluntarily assumed, is a “strike” when: “strike” when: the work is routinely performed by the the work is routinely performed by the

bargaining unitbargaining unit has become an accepted function of has become an accepted function of

the job, andthe job, and the refusal is for the purpose of the refusal is for the purpose of

influencing a change in wages and influencing a change in wages and working conditionsworking conditions

““Strike” Includes ULP Job Strike” Includes ULP Job Actions Actions

►Before PA 112, ULP job actions enjoyed Before PA 112, ULP job actions enjoyed some legal protectionsome legal protection MERC could, at its discretion order MERC could, at its discretion order

reinstatement of dismissed employees if the reinstatement of dismissed employees if the "strike" was precipitated by an employer's "strike" was precipitated by an employer's ULP.) ULP.) ►Lamphere Schools v Federation of TeachersLamphere Schools v Federation of Teachers, ,

400 Mich 104, 117 (1977) 400 Mich 104, 117 (1977) ►Under PA 112, an unfair labor practice Under PA 112, an unfair labor practice

strike is strike is illegalillegal for public school for public school employees only.employees only.

What Happens to Employees on What Happens to Employees on “Strike” “Strike”

►Section 2a of PERASection 2a of PERA►May be finedMay be fined►Employer must file notice with MERCEmployer must file notice with MERC►Notice must be served on union and Notice must be served on union and

membersmembers►Union and employees have ten days to Union and employees have ten days to

answeranswer►Hearings conducted quicklyHearings conducted quickly

What Happens to Employees What Happens to Employees on on

“Strike” “Strike” ►Section 2a of PERASection 2a of PERA►Decision must be issued within 60 days Decision must be issued within 60 days

of strike noticeof strike notice►Penalty: one day of pay for each full or Penalty: one day of pay for each full or

partial day employee is on strikepartial day employee is on strike►Fines sent to state school aid fund, not Fines sent to state school aid fund, not

school district! school district!

What Happens to Employees on What Happens to Employees on “Strike”“Strike”

►Section 6 of PERASection 6 of PERA►Once employer disciplines or fires public Once employer disciplines or fires public

employee for engaging in strike, employee for engaging in strike, employee is entitled to a hearingemployee is entitled to a hearing

►Request must be filed in writing with Request must be filed in writing with school board within ten days after school board within ten days after employee’s regular pay has stoppedemployee’s regular pay has stopped

►School Board must render decision within School Board must render decision within 10 days after conclusion of hearing10 days after conclusion of hearing

►Decision may be appealed to local circuit Decision may be appealed to local circuit court court Standard of review is limited Standard of review is limited

Duty to Bargain SuspendedDuty to Bargain Suspended

►MERC has found that engaging in MERC has found that engaging in unlawful strike activity relieves the unlawful strike activity relieves the employer of the duty to bargain during employer of the duty to bargain during the pendency of the strike. the pendency of the strike. Melvindale-Northern Allen Park Melvindale-Northern Allen Park SchoolsSchools, 1992 MERC Lab Op 400., 1992 MERC Lab Op 400.

legal aspects of working without a contract

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