Collective Bargaining in
the Public Sector
Untangling the Regulatory Web
PUBLIC EMPLOYMENT RELATIONS ACT
(“PERA”)

Public-sector labor relations is not subject to the federal
National Labor Relations Act or state labor laws that
apply to the private sector.

Public-sector is governed by state laws directed
specifically at public employers and employees.

The Public Employment Relations Act (“PERA”), is
Michigan’s principal state law in this area.
Michigan Employment Relations Commission
“MERC”

Responsible for implementing and
administering PERA
– Certifies Bargaining Units
 Bargaining Units are a group of employees who
share a “community of interest”
– Certifies Bargaining Representatives (i.e. MEA
or American Federation of Teachers)
– Resolves Unfair Labor Practice Charges (ULP)
– Appoints Mediators and Fact Finders
Duty To Bargain

PERA requires public employers to
collectively bargain with the representative
of its employees.

Collective bargaining is the mutual
obligation of the employer and the
representative to confer in “good faith”
over “mandatory subjects” of bargaining.
“Mandatory Subjects”

Public employers are required to negotiate
with the representative of its employees
with respect to:
– Rates of Pay
– Hours of Employment
– “Other Terms and Conditions of Employment”
 Seniority
 Layoff & Recall
 Leave Time
 Discipline
“Permitted Subjects”

Subjects you may negotiate but are not
required to negotiate:
– Employers choice of hard cap or 80/20
election on health insurance premium (2011
PA 152)
– Creation/Elimination of bargaining unit
positions
“Prohibited Subjects”

Parties may discuss, but UNENFORCEABLE
in a CBA or LOA:
– Retroactive payment of higher wages &
benefits, including step increases, after CBA
expiration (2011 PA 54)
Mediation






PERA authorizes a public employer
or bargaining representative to
request mediation through MERC.
Non-Binding Process
Most often invoked once the
parties have reached an impasse
on an issue
Parties must notify MERC relative
to the status of negotiations at
least 60 days prior to the
expiration of a labor agreement.
If the parties have not reached an
agreement within 30 days after
the notification, MERC will appoint
a mediator.
Mediation is a prerequisite to FactFinding.
Fact-Finding

MERC will appoint a “Fact Finder”

The Fact Finder will conduct a Hearing
to receive evidence and argument on
each parties position on the open
issues

Public Hearing – Will public awareness
help negotiations?

Fact Finder issues a written report
which includes “recommendations”
relative to how he/she believes the
parties should deal with the
unresolved issues

The recommendations of the factfinder are just that. Never say yes
when you should say no.

Good faith bargaining must continue
for a “reasonable period” after receipt
of the findings/recommendations.
IMPASSE
Will you know it when you see it?

MERC has defined “impasse” as
follows:
– The point where further
discussions would be futile. Flint
Twp, 1974 MERC Lab Op 152.
– The point where “the parties
positions have so solidified that
further bargaining on the subject
matter is obviously useless.” City
of Saginaw, 1982 MERC Lab Op
727.
– Where “positions have crystallized
so that further bargaining would
be futile.” City of Ishpeming,
1985 MERC Lab Op 697.
Key Factors = Impasse

MERC considers the following when deciding whether
impasse truly exists:
– Have the parties negotiated for a reasonable term?
– Have the parties’ positions solidified?
– Are the parties aware of where the parties’ positions have
solidified?

Statements of a party declaring “impasse” are not
determinative. City of Ishpeming, 1985 MERC Lab Op
517.
Implementation

Once impasse has been
reached, the employer may
make unilateral changes in
working conditions that are
consistent with the employer’s
last bargaining proposals.
Waldron Area Schools, 1996
MERC Lab Op 441.

This applies only to mandatory
subjects of bargaining (i.e.
wages, hours, working
conditions).
Mediation/Fact-Finding’s Impact on
Impasse/Implementation

Declaring impasse before utilization of mediation and fact-finding may be
viewed as evidence “lack of good faith.” Orion Twp, 18 MPER 72 (2005).

Other MERC decisions seem to suggest that impasse can occur before factfinding. Saginaw City, 16 MPER 45 (2003); City of Benton Harbor, 9 MPER
27091 (1996).

It is a violation of employer’s duty to bargain if unilateral implementation
occurs while fact-finding proceedings are pending. Co of Wayne, 1985
MERC Lab Op (244); affirmed by Michigan Court of Appeals, 152 Mich App
87 (1986).

Announcing intent to seek fact-finding is insufficient to preclude
implementation. Saginaw Co (Public Health Commission), 16 MPER 45
(2003).
Questions/Discussion
Brendon R. Beer, Esq.
Abbott, Thomson, Mauldin,
Parker & Beer, PLC
(517) 787-8570
[email protected]