Bill Text: MI HB4003 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Labor; public service employment; requirement for agency fee for nonunion members; prohibit in bargaining agreements and as a condition of employment. Amends secs. 1, 9, 10, 14 & 15 of 1947 PA 336 (MCL 423.201 et seq.).
Spectrum: Partisan Bill (Republican 32-0)
Status: (Passed) 2012-12-12 - Assigned Pa 349'12 [HB4003 Detail]
Download: Michigan-2011-HB4003-Engrossed.html
HB-4003, As Passed Senate, December 6, 2012
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 4003
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;
to prescribe means of enforcement and penalties for the violation
of the provisions of this act; and to make appropriations,"
by amending sections 1, 9, 10, 14, and 15 (MCL 423.201, 423.209,
423.210, 423.214, and 423.215), sections 1 and 14 as amended by
2012 PA 76, section 10 as amended by 2012 PA 53, and section 15 as
amended by 2012 PA 45.
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.
(c) "Intermediate school district" means that term as defined
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) A person employed by a private organization or entity who
provides services under a time-limited contract with this state or
a political subdivision of this state or who receives a direct or
indirect government subsidy in his or her private employment is not
an employee of this state or that political subdivision, and is not
a public employee. This provision shall not be superseded by any
interlocal agreement, memorandum of understanding, memorandum of
commitment, or other document similar to these.
(ii) If, 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 that school district 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.
9. (1) It shall be lawful for public employees to
organize
Public employees may do any
of the following:
(a)
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.
(b) Refrain from any or all of the activities identified in
subdivision (a).
(2) No person shall by force, intimidation, or unlawful
threats compel or attempt to compel any public employee to do any
of the following:
(a) Become or remain a member of a labor organization or
bargaining representative or otherwise affiliate with or
financially support a labor organization or bargaining
representative.
(b) Refrain from engaging in employment or refrain from
joining a labor organization or bargaining representative or
otherwise affiliating with or financially supporting a labor
organization or bargaining representative.
(c) Pay to any charitable organization or third party an
amount that is in lieu of, equivalent to, or any portion of dues,
fees, assessments, or other charges or expenses required of members
of or public employees represented by a labor organization or
bargaining representative.
(3) A person who violates subsection (2) is liable for a civil
fine of not more than $500.00. A civil fine recovered under this
section shall be submitted to the state treasurer for deposit in
the general fund of this state.
Sec. 10. (1) A public employer or an officer or agent of a
public employer shall not do any of the following:
(a) Interfere with, restrain, or coerce public employees in
the exercise of their rights guaranteed in section 9.
(b) Initiate, create, dominate, contribute to, or interfere
with the formation or administration of any labor organization. A
public school employer's use of public school resources to assist a
labor organization in collecting dues or service fees from wages of
public school employees is a prohibited contribution to the
administration of a labor organization. However, a public school
employer's collection of dues or service fees pursuant to a
collective
bargaining agreement that is in effect on the effective
date
of the amendatory act that added this sentence March 16, 2012
is not prohibited until the agreement expires or is terminated,
extended, or renewed. A public employer may permit employees to
confer with a labor organization during working hours without loss
of time or pay.
(c) Discriminate in regard to hire, terms, or other conditions
of employment to encourage or discourage membership in a labor
organization.
However, this act or any other law of this state does
not
preclude a public employer from making an agreement with an
exclusive
bargaining representative as described in section 11 to
require
as a condition of employment that all employees in the
bargaining
unit pay to the exclusive bargaining representative a
service
fee equivalent to the amount of dues uniformly required of
members
of the exclusive bargaining representative.
(d) Discriminate against a public employee because he or she
has given testimony or instituted proceedings under this act.
(e) Refuse to bargain collectively with the representatives of
its public employees, subject to the provisions of section 11.
(2)
It is the purpose of 1973 PA 25 to reaffirm the continuing
public
policy of this state that the stability and effectiveness of
labor
relations in the public sector require, if the requirement is
negotiated
with the public employer, that all employees in the
bargaining
unit shall share fairly in the financial support of
their
exclusive bargaining representative by paying to the
exclusive
bargaining representative a service fee that may be
equivalent
to the amount of dues uniformly required of members of
the
exclusive bargaining representative.
(2) (3)
A labor organization or its agents
shall not do any of
the following:
(a) Restrain or coerce public employees in the exercise of the
rights guaranteed in section 9. This subdivision does not impair
the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership.
(b) Restrain or coerce a public employer in the selection of
its representatives for the purposes of collective bargaining or
the adjustment of grievances.
(c) Cause or attempt to cause a public employer to
discriminate against a public employee in violation of subsection
(1)(c).
(d) Refuse to bargain collectively with a public employer,
provided it is the representative of the public employer's
employees subject to section 11.
(3) Except as provided in subsection (4), an individual shall
not be required as a condition of obtaining or continuing public
employment to do any of the following:
(a) Refrain or resign from membership in, voluntary
affiliation with, or voluntary financial support of a labor
organization or bargaining representative.
(b) Become or remain a member of a labor organization or
bargaining representative.
(c) Pay any dues, fees, assessments, or other charges or
expenses of any kind or amount, or provide anything of value to a
labor organization or bargaining representative.
(d) Pay to any charitable organization or third party any
amount that is in lieu of, equivalent to, or any portion of dues,
fees, assessments, or other charges or expenses required of members
of or public employees represented by a labor organization or
bargaining representative.
(4) The application of subsection (3) is subject to the
following:
(a) Subsection (3) does not apply to any of the following:
(i) A public police or fire department employee or any person
who seeks to become employed as a public police or fire department
employee as that term is defined under section 2 of 1969 PA 312,
MCL 423.232.
(ii) A state police trooper or sergeant who is granted rights
under section 5 of article XI of the state constitution of 1963 or
any individual who seeks to become employed as a state police
trooper or sergeant.
(b) Any person described in subdivision (a), or a labor
organization or bargaining representative representing persons
described in subdivision (a) and a public employer or this state
may agree that all employees in the bargaining unit shall share
fairly in the financial support of the labor organization or their
exclusive bargaining representative by paying a fee to the labor
organization or exclusive bargaining representative that may be
equivalent to the amount of dues uniformly required of members of
the labor organization or exclusive bargaining representative.
Section 9(2) shall not be construed to interfere with the right of
a public employer or this state and a labor organization or
bargaining representative to enter into or lawfully administer such
an agreement as it relates to the employees or persons described in
subdivision (a).
(c) If any of the exclusions in subdivision (a)(i) or (ii) are
found to be invalid by a court, the following apply:
(i) The individuals described in the exclusion found to be
invalid shall no longer be excepted from the application of
subsection (3).
(ii) Subdivision (b) does not apply to individuals described in
the invalid exclusion.
(5) An agreement, contract, understanding, or practice between
or involving a public employer, labor organization, or bargaining
representative that violates subsection (3) is unlawful and
unenforceable. This subsection applies only to an agreement,
contract, understanding, or practice that takes effect or is
extended or renewed after the effective date of the amendatory act
that added this subsection.
(6) The court of appeals has exclusive original jurisdiction
over any action challenging the validity of subsection (3), (4), or
(5). The court of appeals shall hear the action in an expedited
manner.
(7) For fiscal year 2012-2013, $1,000,000.00 is appropriated
to the department of licensing and regulatory affairs to be
expended to do all of the following regarding the amendatory act
that added this subsection:
(a) Respond to public inquiries regarding the amendatory act.
(b) Provide the commission with sufficient staff and other
resources to implement the amendatory act.
(c) Inform public employers, public employees, and labor
organizations concerning their rights and responsibilities under
the amendatory act.
(d) Any other purposes that the director of the department of
licensing and regulatory affairs determines in his or her
discretion are necessary to implement the amendatory act.
(8) A person, public employer, or labor organization that
violates subsection (3) is liable for a civil fine of not more than
$500.00. A civil fine recovered under this section shall be
submitted to the state treasurer for deposit in the general fund of
this state.
(9) (4)
By March 1 of each year, each
exclusive bargaining
representative that represents public employees in this state shall
file with the commission an independent audit of all expenditures
attributed to the costs of collective bargaining, contract
administration, and grievance adjustment during the prior calendar
year. The commission shall make the audits available to the public
on the commission's website. For fiscal year 2011-2012, $100,000.00
is appropriated to the commission for the costs of implementing
this subsection.
(10) Except for actions required to be brought under
subsection (6), a person who suffers an injury as a result of a
violation or threatened violation of subsection (3) may bring a
civil action for damages, injunctive relief, or both. In addition,
a court shall award court costs and reasonable attorney fees to a
plaintiff who prevails in an action brought under this subsection.
Remedies provided in this subsection are independent of and in
addition to other penalties and remedies prescribed by this act.
Sec. 14. (1) An election shall not be directed in any
bargaining unit or any subdivision within which, in the preceding
12-month period, a valid election was held. The commission shall
determine who is eligible to vote in the election and shall
promulgate rules governing the election. In an election involving
more than 2 choices, if none of the choices on the ballot receives
a majority vote, a runoff election shall be conducted between the 2
choices receiving the 2 largest numbers of valid votes cast in the
election. An election shall not be directed in any bargaining unit
or
subdivision thereof where of
any bargaining unit if there is in
force and effect a valid collective bargaining agreement that was
not prematurely extended and that is of fixed duration. A
collective bargaining agreement does not bar an election upon the
petition
of persons not parties thereto to
the collective
bargaining agreement if more than 3 years have elapsed since the
agreement's execution or last timely renewal, whichever was later.
(2) An election shall not be directed for, and the commission
or a public employer shall not recognize, a bargaining unit of a
public employer consisting of individuals who are not public
employees. A bargaining unit that is formed or recognized in
violation of this subsection is invalid and void.
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.
(c) The composition of school improvement committees
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 the selection of grade levels or schools in
which to allow 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 decisions concerning use of technology to
deliver educational programs and services and staffing to provide
that technology, or the impact of 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
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.
(q) Any requirement that would violate section 10(3).
(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).
(c) The identities of any other parties to an agreement
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.
Enacting section 1. If any part or parts of this act are found
to be in conflict with the state constitution of 1963, the United
States constitution, or federal law, this act shall be implemented
to the maximum extent that the state constitution of 1963, the
United States constitution, and federal law permit. Any provision
held invalid or inoperative shall be severable from the remaining
portions of this act.
