The Michigan Constitution states that the Legislature has the power to "enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service" (emphasis added). The Michigan Legislature chose to exercise this power over public employee dispute resolution through the enactment of PERA.
Pursuant to PERA, the ability of public employees, including educators, to organize themselves for purposes of collective bargaining is clear. PERA specifically provides:
"It is lawful for public employees to organize together or to form, join, or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice."
Moreover, when unions are established, they become "the exclusive representatives of all the public employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment or conditions of employment. ..." Thus, once a union is established, this union becomes the sole representative of the employees in a particular unit. No longer can an employee work with a school board to determine his or her own terms and conditions of employment.
The establishment of a union begins either with the school district simply agreeing to recognize a bargaining unit or with the filing of a petition to MERC alleging that at least 30 percent of the public employees in a unit wish to be represented by collective bargaining. In either case, MERC will then investigate and subsequently conduct an election to determine the appropriate union. However, only one election is allowed in any 12 month period, regardless of outcome.
Notably, a union is certified indefinitely. Unlike our political system with its regular elections, labor law does not subject a union to periodic recertifications. Most American workers with union representation have never had the opportunity to vote on it, since the union was certified before they were hired.
MERC has declared that in the certification of a union, it is a primary objective to certify the largest unit in which employees share a community of interest. For example, MERC will presume that the appropriate unit in a public school district includes all teachers, certified and noncertified, in primary, secondary and adult education. Moreover, it is MERC policy, whenever possible, to avoid leaving positions unrepresented, especially isolated ones. Accordingly, MERC policy allows for placing unrepresented, nonfaculty, nonsupervisory positions into one bargaining unit, even though "gathering up remaining employees into a residual unit will nearly always involve joining employees with diverse job descriptions."
Frank Garcia: "I’ve been surprised that during this process only three EA members have asked to speak with me on a one-on-one basis — only three staff members asking for a better understanding of the district’s financial difficulties out of 326. We’ve seen the EA leadership twist, carefully select, and misrepresent what information they share with their members. This has been a concern to us. I’m concerned about the number of talented and excellent teachers we’ll lose due to the MEA’s stand on MESSA [the MEA-affiliated health insurance administrator]."
Lynn Parrish: "When I train our boards, and I’ve done it a lot over the years, I always stress with them that the union is not the same as the teachers. It’s a separate entity, and many, many of our teachers don’t even know what these people are up to, nor would they under normal circumstances support the kind of heavy-handed euphemisms we sometimes see. I don’t want boards of education to feel that it’s a monolith and all teachers are that, because they’re not."
When two or more school districts operate combined programs and jointly employ teachers, MERC must determine the employer responsible for collective bargaining. In contrast to the NLRA, PERA allows for supervisory (but not confidential or executive) employees to be represented by a union. Supervisors, however, may not be included in the same bargaining unit as nonsupervisory employees.
A supervisory employee is described as:
"one who possesses authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or to effectively recommend such action, as long as this authority requires the use of independent judgment and is not merely routine."
When employees seek to change or disestablish an existing union, the same rules apply as when starting a union — with one exception. A decertification election is not allowed when there is an existing, valid collective bargaining agreement of a fixed duration. However, under PERA, "a collective bargaining agreement shall not bar an election upon the petition of persons not parties thereto where more than three years have elapsed since the agreement’s last execution or last timely renewal, whichever was later." Accordingly, collective bargaining agreements in Michigan rarely, if ever, exceed three years in duration.
While rare, decertification of a union is not without precedent. For example, teachers in a school district in the state of Washington recently rejected representation provided by a local bargaining unit of the Washington Education Association.
PERA also prohibits unfair labor practices committed by unions. It is specifically unlawful under PERA for a union to do any of the following:
"restrain or coerce public employees in the exercise of their Section 9 rights or public employers in the selection of their representatives for collective bargaining or adjustments of grievances;
cause or attempt to cause a public employer to discriminate against a public employee; and,
refuse to bargain collectively with a public employer."
Conduct constituting an unfair labor practice can be varied. Many unfair labor practice charges stem from violations of the agreed-upon bargaining ground rules or to changing positions in bad faith. The school board for Holland Public Schools filed at least three unfair labor practice charges against the Holland Education Association during prolonged negotiations in 2005 and 2006. The first alleged that a union press conference broke a bargained-for agreement concerning such actions. The second involved an alleged costly proposal made by the HEA that constituted regressive bargaining; the third involved a proposed hiring freeze that allegedly would have increased class size.