Proposal 2 may also lead to the repeal of the binding arbitration provision appearing in Public Act 312 of 1969. The act resolves protracted disputes over new or extended collective bargaining agreements between public safety officers, such as police or fire fighters, and government employers. The act’s purpose is provide an expeditious resolution of the dispute and thereby ensure that a strike does not interrupt vital public safety services designed to prevent death, personal injury and other immediate and irreparable public harm.
Under this process, if an impasse occurs during contract negotiations between a municipality and a labor organization representing public safety workers, either side can unilaterally request a panel of arbitrators to determine a final contract. Specifically, either the government employer or the employee union may request “binding arbitration proceedings” if a new contract has not been reached and mediation has failed after 30 days or after some mutually agreed additional time.
Section 28(2) of Proposal 2 requires the government employer and the government-employee union to “negotiate in good faith,” but the proposal adds that this provision “does not compel either party to agree to a proposal or make a concession.” This language about compulsion is similar to wording in the NLRA and identical to statutory wording in PERA.[*]
Article 11, Section 5, of the Michigan Constitution currently allows state police to unionize. It also provides access to “binding arbitration” to resolve prolonged bargaining disputes. In pertinent part, that constitutional provision states:
State Police Troopers and Sergeants shall, through their elected representative designated by 50% of such troopers and sergeants, have the right to bargain collectively with their employer . . . and they shall have the right 30 days after commencement of such bargaining to submit any unresolved disputes to binding arbitration for the resolution thereof the same as now provided by law for Public Police and Fire Departments.
Proposal 2 would add language to Article XI, Section 5, that would permit collective bargaining for all state employees, not just state police, rather than leaving that question in the hands of the Michigan Civil Service Commission. No change would be made, however, to the language allowing state troopers recourse to “binding arbitration.”
The pertinent question is whether Proposal 2’s provision preventing compulsion would be at odds with statutory and constitutional provisions permitting binding arbitration. At the time that Public Act 312 was passed, the no-concession language existed in PERA, the (state) Labor Relations and Mediation Act and the NLRA. There were subsequent challenges made to Public Act 312 that were rejected by the courts. Yet it does not appear that there has been a challenge to Public Act 312 based directly on the no-concession language that existed in PERA when Act 312 was passed.
Because state troopers are explicitly allowed mandatory arbitration by the text of the state constitution, it is clear that they would continue to have that option if Proposal 2 were approved by the voters. For public safety personnel who currently have access to mandatory arbitration through Public Act 312, the outcome is less clear. Even though this potential conflict in legal provisions has existed for more than 40 years, it has not been addressed by a court.
But the elevation of the “does not compel” language from a statute, on the same legal plane with Public Act 312, to the constitution, where it could supersede Public Act 312, would make a legal challenge more likely. It may be that the courts would hold that mandatory arbitration does not force a party to agree to a proposal or make a concession. In that case, binding arbitration could continue under Proposal 2. But if the courts accepted a straightforward textual argument, there would be a strong case that binding arbitration compels either the public employer or the government-employee union (or both) to accept something it (they) did not want every time an arbitrator made a decision. If the court were to accept the textual argument, binding arbitration for most public safety officers would be ruled unconstitutional under the language of Proposal 2.
[*] See 29 USC § 158(d); MCL § 423.215(1). The NLRA language is also repeated in MCL § 423.30, which is part of Public Act 176 of 1939, the “Labor Relations and Mediation Act.” This act governs small-scale private-sector unionization not governed by the NLRA.