Bill Text: MI HB4033 | 2019-2020 | 100th Legislature | Introduced

---

Bill Title: Labor: collective bargaining; requirement for agency fee for nonunion members; allow in bargaining agreements and as condition of employment in public sector. Amends secs. 9, 10 & 15 of 1947 PA 336 (MCL 423.209 et seq.).

Spectrum: Partisan Bill (Democrat 16-0)

Status: (Introduced - Dead) 2019-01-15 - Bill Electronically Reproduced 01/15/2019 [HB4033 Detail]

Download: Michigan-2019-HB4033-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 4033

 

 

January 15, 2019, Introduced by Reps. Chirkun, Elder, Sabo, Sowerby, Cambensy, Stone, Hertel, Shannon, Peterson, Pagan, Koleszar, Cherry, Pohutsky, Rabhi, Cynthia Johnson and Lasinski and referred to the Committee on Government Operations.

 

     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 9, 10, and 15 (MCL 423.209, 423.210, and

 

423.215), as amended by 2014 PA 414.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 9. (1) Public employees may do any of the following:

 

     (a) Organize organize together or form, join, or assist in

 

labor organizations; engage in lawful concerted activities for the

 

purpose of collective negotiation or bargaining or other mutual aid

 

and protection; or 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.

 

     (d) Pay the costs of an independent examiner verification as

 

described in section 10(9).

 

     (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 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 other 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 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 other employees in

 

the bargaining unit 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.

 

     (3) (2) 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 if 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 March 28, 2013.

 

     (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 2012 PA 349:

 

     (a) Respond to public inquiries regarding 2012 PA 349.

 

     (b) Provide the commission with sufficient staff and other

 

resources to implement 2012 PA 349.

 

     (c) Inform public employers, public employees, and labor

 

organizations concerning their rights and responsibilities under

 

2012 PA 349.

 

     (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 2012 PA 349.

 

     (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.

 

     (4) (9) By July 1 of each year, each exclusive bargaining

 

representative that represents public employees in this state shall

 

have an independent examiner verify the exclusive bargaining

 

representative's calculation of all expenditures attributed to the

 

costs of collective bargaining, contract administration, and

 

grievance adjustment during the prior calendar year and shall file

 

that verification with the commission. The commission shall make

 

the exclusive bargaining representative's calculations available to

 

the public on the commission's website. The exclusive bargaining

 

representative shall also file a declaration identifying the local

bargaining units that are represented. Local bargaining units

 

identified in the declaration filed by the exclusive bargaining

 

representative are not required to file a separate calculation of

 

all expenditures attributed to the costs of collective bargaining,

 

contract administration, and grievance adjustment. For fiscal year

 

2011-2012, $100,000.00 is appropriated to the commission for the

 

costs of implementing this subsection. For fiscal year 2014-2015,

 

$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. 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 must 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 must be bargained by the public

 

school employer and the bargaining representative before the change

 

may take takes 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 on or after

 

March 28, 2013 shall must include a provision that allows an

 

emergency manager appointed under the local financial stability and

 

choice act, 2012 PA 436, MCL 141.1541 to 141.1575, to reject,

 

modify, or terminate the collective bargaining agreement as

 

provided in the local financial stability and choice act, 2012 PA

 

436, MCL 141.1541 to 141.1575. 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 financial

 

stability and choice act, 2012 PA 436, MCL 141.1541 to 141.1575.

 

This act does not confer a right to bargain that would infringe on

 

the exercise of powers under the local financial stability and

 

choice act, 2012 PA 436, MCL 141.1541 to 141.1575.

 

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

 

agreement under the local financial stability and choice act, 2012

 

PA 436, MCL 141.1541 to 141.1575, is not subject to subsection (1)

 

for the term of the consent agreement, as provided in the local

 

financial stability and choice act, 2012 PA 436, MCL 141.1541 to

141.1575.

 

     (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) Subsection (11) does not relieve 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.

 

     (13) An agreement with a collective bargaining unit shall must

not require a public employer to pay the costs of an independent

 

examiner verification described in section 10(9).10(4).

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.