The third manner in which the MEA can challenge privatization in the legal arena is to file an unfair labor practice charge or a contract grievance alleging that the district’s decision to privatize repudiates the collective bargaining agreement. This allegation would be based on a particular reading of the language of Public Act 112:
“Collective bargaining between a public school employer and a bargaining representative of its employees shall not include . . . [t]he decision of whether or not to contract with a third party for 1 or more noninstructional support services; or the procedures for obtaining the contract; or the identity of the third party; or the impact of the contract on individual employees or the bargaining unit.”[lxiv]
This language can be viewed as allowing a district to privatize noninstructional services, but not empowering it to do so in the middle of a collective bargaining agreement. The MEA has in fact used this argument to file unfair labor practice claims and contract grievances for arbitration.
Significantly, however, in no case has the MEA allowed the issue to be decided by a court of law or an administrative law judge at the Michigan Employment Relations Commission. In the case of Grand Rapids and Dean Transportation, GRESPA withdrew its charge before there was a hearing.
The union challenged an Albion Public Schools privatization decision along similar lines. In this case, an administrative law judge held a hearing and informed the MEA that she would rule against it. The MEA quickly withdrew its unfair labor practice charges. And in the case of the Hartland Community Schools’ custodial privatization, the union settled for $20,000, a sum small enough that the district may have reasoned that settling was cheaper than the legal cost of fighting the charge.
The union’s voluntary withdrawal of its unfair labor practice claims in the Albion and Grand Rapids disputes suggest that it sees a definitive decision interpreting the privatization provision of Public Act 112 as contrary to its interests. Nevertheless, the MEA’s past actions are no guarantee that the union will not fully pursue a similar unfair labor practice charge in the future. Given the costly relief the MEA would seek if it were to prevail — reinstatement of the former or privatized employees — a decision to privatize is not entirely free of legal risk. And as the Hartland case suggests, as long as the general threat of such grievances is still viable, the union can raise the bar to privatization by extracting relatively small amounts from districts that lack the resources to pay for a long legal battle. The MEA’s coffers dwarf those of many of Michigan school districts.
Moreover, the union can file a separate contract grievance arguing that the board has violated the collective bargaining agreement by privatizing the service. GRESPA has in fact filed a grievance against the Grand Rapids Public Schools alleging such a breach. The grievance was summarily denied by an arbitrator, but the trial judge vacated this ruling on procedural (not substantive) grounds and ordered a new hearing. This arbitration hearing is pending at the time of publication of this primer.
Such grievances and legal challenges will end only when there is a definitive ruling from the state courts that privatizing in the middle of a collective bargaining agreement is (or is not) permissible. On balance, however this threat to any particular district appears to be modest.