HB-4246, As Passed Senate, March 7, 2012

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4246

A bill to amend 1947 PA 336, entitled

"An act to prohibit strikes by certain public employees; to provide

review from disciplinary action with respect thereto; to provide

for the mediation of grievances and the holding of elections; to

declare and protect the rights and privileges of public employees;

to require certain provisions in collective bargaining agreements;

and to prescribe means of enforcement and penalties for the

violation of the provisions of this act,"

by amending sections 1 and 15 (MCL 423.201 and 423.215), section 1

as amended by 1999 PA 204 and section 15 as amended by 2012 PA 12.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. (1) As used in this act:

(a) "Bargaining representative" means a labor organization

recognized by an employer or certified by the commission as the

sole and exclusive bargaining representative of certain employees

of the employer.

(b) "Commission" means the employment relations commission

created in section 3 of 1939 PA 176, MCL 423.3.

in section 4 of the revised school code, 1976 PA 451, MCL 380.4.

(d) "Lockout" means the temporary withholding of work from a

group of employees by means of shutting down the operation of the

employer in order to bring pressure upon the affected employees or

the bargaining representative, or both, to accept the employer's

terms of settlement of a labor dispute.

(e) "Public employee" means a person holding a position by

appointment or employment in the government of this state, in the

government of 1 or more of the political subdivisions of this

state, in the public school service, in a public or special

district, in the service of an authority, commission, or board, or

in any other branch of the public service, subject to the following

exceptions:

(i) Beginning March 31, 1997, a person employed by a private

organization or entity that provides services under a time-limited

contract with the state or a political subdivision of the state is

not an employee of the state or that political subdivision, and is

not a public employee.

(ii) If, ~~within 30 days after the effective date of the~~

~~amendatory act that added this subparagraph,~~ by April 9, 2000, a

public school employer that is the chief executive officer serving

in a school district of the first class under part 5A of the

revised school code, 1976 PA 451, MCL 380.371 to 380.376, issues an

order determining that it is in the best interests of the school

district, then a public school administrator employed by a that

school district ~~that is a school district of the first class under~~

~~the revised school code, 1976 PA 451, MCL 380.1 to 380.1852,~~ is not

a public employee for purposes of this act. The exception under

this subparagraph applies to public school administrators employed

by that school district after the date of the order described in

this subparagraph whether or not the chief executive officer

remains in place in the school district. This exception does not

prohibit the chief executive officer or board of a school district

of the first class or its designee from having informal meetings

with public school administrators to discuss wages and working

conditions.

(iii) An individual serving as a graduate student research

assistant or in an equivalent position and any individual whose

position does not have sufficient indicia of an employer-employee

relationship using the 20-factor test announced by the internal

revenue service of the United States department of treasury in

revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee

entitled to representation or collective bargaining rights under

this act.

(f) "Public school academy" means a public school academy or

strict discipline academy organized under the revised school code,

1976 PA 451, MCL 380.1 to 380.1852.

(g) "Public school administrator" means a superintendent,

assistant superintendent, chief business official, principal, or

assistant principal employed by a school district, intermediate

school district, or public school academy.

(h) "Public school employer" means a public employer that is

the board of a school district, intermediate school district, or

public school academy; is the chief executive officer of a school

district in which a school reform board is in place under part 5A

of the revised school code, 1976 PA 451, MCL 380.371 to 380.376; or

is the governing board of a joint endeavor or consortium consisting

of any combination of school districts, intermediate school

districts, or public school academies.

(i) "School district" means that term as defined in section 6

of the revised school code, 1976 PA 451, MCL 380.6, or a local act

school district as defined in section 5 of the revised school code,

1976 PA 451, MCL 380.5.

(j) "Strike" means the concerted failure to report for duty,

the willful absence from one's position, the stoppage of work, or

the abstinence in whole or in part from the full, faithful, and

proper performance of the duties of employment for the purpose of

inducing, influencing, or coercing a change in employment

conditions, compensation, or the rights, privileges, or obligations

of employment. For employees of a public school employer, strike

also includes an action described in this subdivision that is taken

for the purpose of protesting or responding to an act alleged or

determined to be an unfair labor practice committed by the public

school employer.

(2) This act does not limit, impair, or affect the right of a

public employee to the expression or communication of a view,

grievance, complaint, or opinion on any matter related to the

conditions or compensation of public employment or their betterment

as long as the expression or communication does not interfere with

the full, faithful, and proper performance of the duties of

employment.

Sec. 15. (1) A public employer shall bargain collectively with

the representatives of its employees as described in section 11 and

may make and enter into collective bargaining agreements with those

representatives. Except as otherwise provided in this section, for

the purposes of this section, to bargain collectively is to perform

the mutual obligation of the employer and the representative of the

employees to meet at reasonable times and confer in good faith with

respect to wages, hours, and other terms and conditions of

employment, or to negotiate an agreement, or any question arising

under the agreement, and to execute a written contract, ordinance,

or resolution incorporating any agreement reached if requested by

either party, but this obligation does not compel either party to

agree to a proposal or make a concession.

(2) A public school employer has the responsibility,

authority, and right to manage and direct on behalf of the public

the operations and activities of the public schools under its

control.

(3) Collective bargaining between a public school employer and

a bargaining representative of its employees shall not include any

of the following subjects:

(a) Who is or will be the policyholder of an employee group

insurance benefit. This subdivision does not affect the duty to

bargain with respect to types and levels of benefits and coverages

for employee group insurance. A change or proposed change in a type

or to a level of benefit, policy specification, or coverage for

employee group insurance shall be bargained by the public school

employer and the bargaining representative before the change may

take effect.

(b) Establishment of the starting day for the school year and

of the amount of pupil contact time required to receive full state

school aid under section 1284 of the revised school code, 1976 PA

451, MCL 380.1284, and under section 101 of the state school aid

act of 1979, 1979 PA 94, MCL 388.1701.

established under section 1277 of the revised school code, 1976 PA

451, MCL 380.1277.

(d) The decision of whether or not to provide or allow

interdistrict or intradistrict open enrollment opportunity in a

school district or ~~of which~~ the selection of grade levels or

schools in which to allow ~~such~~ an open enrollment opportunity.

(e) The decision of whether or not to act as an authorizing

body to grant a contract to organize and operate 1 or more public

school academies under the revised school code, 1976 PA 451, MCL

380.1 to 380.1852.

(f) The 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 for noninstructional support

services other than bidding described in this subdivision; or the

identity of the third party; or the impact of the contract for

noninstructional support services on individual employees or the

bargaining unit. However, this subdivision applies only if the

bargaining unit that is providing the noninstructional support

services is given an opportunity to bid on the contract for the

noninstructional support services on an equal basis as other

bidders.

(g) The use of volunteers in providing services at its

schools.

(h) Decisions concerning use and staffing of experimental or

pilot programs ~~and staffing of experimental or pilot programs~~ and

decisions concerning use of technology to deliver educational

programs and services and staffing to provide ~~the~~ that technology,

or the impact of ~~these~~ those decisions on individual employees or

the bargaining unit.

(i) Any compensation or additional work assignment intended to

reimburse an employee for or allow an employee to recover any

monetary penalty imposed under this act.

(j) Any decision made by the public school employer regarding

~~the placement of teachers,~~ teacher placement, or the impact of that

decision on an individual employee or the bargaining unit.

(k) Decisions about the development, content, standards,

procedures, adoption, and implementation of the public school

employer's policies regarding personnel decisions when conducting a

staffing or program reduction or any other personnel determination

resulting in the elimination of a position, when conducting a

recall from a staffing or program reduction or any other personnel

determination resulting in the elimination of a position, or in

hiring after a staffing or program reduction or any other personnel

determination resulting in the elimination of a position, as

provided under section 1248 of the revised school code, 1976 PA

451, MCL 380.1248, any decision made by the public school employer

pursuant to those policies, or the impact of those decisions on an

individual employee or the bargaining unit.

(l) Decisions about the development, content, standards,

procedures, adoption, and implementation of a public school

employer's performance evaluation system adopted under section 1249

of the revised school code, 1976 PA 451, MCL 380.1249, or under

1937 (Ex Sess) PA 4, MCL 38.71 to 38.191, decisions concerning the

content of a performance evaluation of an employee under those

provisions of law, or the impact of those decisions on an

individual employee or the bargaining unit.

(m) For public employees whose employment is regulated by 1937

(Ex Sess) PA 4, MCL 38.71 to 38.191, decisions about the

development, content, standards, procedures, adoption, and

implementation of a policy regarding discharge or discipline of an

employee, decisions concerning the discharge or discipline of an

individual employee, or the impact of those decisions on an

individual employee or the bargaining unit. For public employees

whose employment is regulated by 1937 (Ex Sess) PA 4, MCL 38.71 to

38.191, a public school employer shall not adopt, implement, or

maintain a policy for discharge or discipline of an employee that

includes a standard for discharge or discipline that is different

than the arbitrary and capricious standard provided under section 1

of article IV of 1937 (Ex Sess) PA 4, MCL 38.101.

(n) Decisions about the format, timing, or number of classroom

observations conducted for the purposes of section 3a of article II

of 1937 (Ex Sess) PA 4, MCL 38.83a, decisions concerning the

classroom observation of an individual employee, or the impact of

those decisions on an individual employee or the bargaining unit.

(o) Decisions about the development, content, standards,

procedures, adoption, and implementation of the method of

compensation required under section 1250 of the revised school

code, 1976 PA 451, MCL 380.1250, decisions about how an employee

performance evaluation is used to determine performance-based

compensation under section 1250 of the revised school code, 1976 PA

451, MCL 380.1250, decisions concerning the performance-based

compensation of an individual employee, or the impact of those

decisions on an individual employee or the bargaining unit.

(p) Decisions about the development, format, content, and

procedures of the notification to parents and legal guardians

required under section 1249a of the revised school code, 1976 PA

451, MCL 380.1249a.

(4) Except as otherwise provided in subsection (3)(f), the

matters described in subsection (3) are prohibited subjects of

bargaining between a public school employer and a bargaining

representative of its employees, and, for the purposes of this act,

are within the sole authority of the public school employer to

decide.

(5) If a public school is placed in the state school

reform/redesign school district or is placed under a chief

executive officer under section 1280c of the revised school code,

1976 PA 451, MCL 380.1280c, then, for the purposes of collective

bargaining under this act, the state school reform/redesign officer

or the chief executive officer, as applicable, is the public school

employer of the public school employees of that public school for

as long as the public school is part of the state school

reform/redesign school district or operated by the chief executive

officer.

(6) A public school employer's collective bargaining duty

under this act and a collective bargaining agreement entered into

by a public school employer under this act are subject to all of

the following:

(a) Any effect on collective bargaining and any modification

of a collective bargaining agreement occurring under section 1280c

of the revised school code, 1976 PA 451, MCL 380.1280c.

(b) For a public school in which the superintendent of public

instruction implements 1 of the 4 school intervention models

described in section 1280c of the revised school code, 1976 PA 451,

MCL 380.1280c, if the school intervention model that is implemented

affects collective bargaining or requires modification of a

collective bargaining agreement, any effect on collective

bargaining and any modification of a collective bargaining

agreement under that school intervention model.

(7) Each collective bargaining agreement entered into between

a public employer and public employees under this act after March

16, 2011 shall include a provision that allows an emergency manager

appointed under the local government and school district fiscal

accountability act, 2011 PA 4, MCL 141.1501 to 141.1531, to reject,

modify, or terminate the collective bargaining agreement as

provided in the local government and school district fiscal

accountability act, 2011 PA 4, MCL 141.1501 to 141.1531. Provisions

required by this subsection are prohibited subjects of bargaining

under this act.

(8) Collective bargaining agreements under this act may be

rejected, modified, or terminated pursuant to the local government

and school district fiscal accountability act, 2011 PA 4, MCL

141.1501 to 141.1531. This act does not confer a right to bargain

that would infringe on the exercise of powers under the local

government and school district fiscal accountability act, 2011 PA

4, MCL 141.1501 to 141.1531.

(9) A unit of local government that enters into a consent

agreement under the local government and school district fiscal

accountability act, 2011 PA 4, MCL 141.1501 to 141.1531, is not

subject to subsection (1) for the term of the consent agreement, as

provided in the local government and school district fiscal

accountability act, 2011 PA 4, MCL 141.1501 to 141.1531.

(10) If the charter of a city, village, or township with a

population of 500,000 or more requires and specifies the method of

selection of a retirant member of the municipality's fire

department, police department, or fire and police department

pension or retirement board, the inclusion of the retirant member

on the board and the method of selection of that retirant member

are prohibited subjects of collective bargaining, and any provision

in a collective bargaining agreement that purports to modify that

charter requirement is void and of no effect.

(11) The following are prohibited subjects of bargaining and

are at the sole discretion of the public employer:

(a) A decision as to whether or not the public employer will

enter into an intergovernmental agreement to consolidate 1 or more

functions or services, to jointly perform 1 or more functions or

services, or to otherwise collaborate regarding 1 or more functions

or services.

(b) The procedures for obtaining a contract for the transfer

of functions or responsibilities under an agreement described in

subdivision (a).

described in subdivision (a).

(12) Nothing in subsection (11) relieves a public employer of

any duty established by law to collectively bargain with its

employees as to the effect of a contract described in subsection

(11)(a) on its employees.