Tenure trouble

MARQUETTE – A slate of changes made to teacher tenure laws in Michigan have left Marquette Area Public Schools and the Marquette Area Education Association on shaky ground concerning their 2012-2013 contract.

After ratifying a tentative agreement in the fall, both sides have been in dispute over the contract’s inclusion of bargaining items which were in their previous contract, but became prohibited after Gov. Rick Snyder signed the changes into law in July 2011.

The legislation prohibits personnel issues related to layoffs and employee discipline from being subject to union negotiations.

The district says any language pertaining to the prohibited items must be stricken from the MAEA’s contract.

The union disagrees.

After both sides ratified a tentative agreement, which contained no written mention of changing the prohibited language, Veiht said she gave a contract to the union that had the prohibited items removed, which caused the union to balk.

After several discussions and the threat of an unfair labor practice charge being filed, Veiht said she offered the union a contract with the language still intact.

The union signed that contract March 8, according to Stu Skauge, Michigan Education Association’s UniServ director for Marquette and Alger counties, who negotiated on behalf of Marquette’s teachers.

The MAPS Board of Education has yet to sign.

Putting it in writing

The reforms did a number of things, including making certain items illegal to negotiate between school districts and teacher unions.

And because the items are prohibited from being bargained, they cannot legally appear in a tentative agreement, leaving both sides in a catch-22.

With nothing written in the tentative agreement concerning the removal of the prohibited language, the union can argue a contract without the language is a violation which can be reported to the Michigan Employee Relations Commission.

“If they want something to be agreed to, they have to put it in writing and make sure my initials are on it,” Skauge said.

Skauge argued the language doesn’t have to be removed from the pact.

“There is an article in the contract that says state and federal law supersedes anything in that contract,” Skauge said. “So, if there’s something contradictory to any of the laws that were passed, they’re unenforceable. They’re null and void.”

Skauge also argued if the district could simply remove the language without the consent of the union, then it should.

“If they truly believe that they can unilaterally remove language, then do it after you sign the contract. What do you need us for?” Skauge said. “Sign what we agreed to then go ahead and remove it. Then, when they remove it, I will file an unfair labor practice with the state saying they removed the language.

“They don’t do it because they know that they really can’t.”

However, Bob Witter, MAPS’ chief negotiator up until the tentative agreement was signed Aug. 31, said the district, as a public body, is bound to uphold the laws of the state, forcing it to remove any illegal contractual language.

“That language has to come out. Anyone who tells you that the language can stay in the contract is not telling you the truth,” Witter said. “These are public employers. They have to abide by the law.”

Witter currently sits on the Dickinson-Iron Intermediate School District Board of Education, and has been negotiating labor contracts on behalf of school districts for 20 years. He has been a school board member for 26 years.

Both Witter and Skauge say the MERC – which handles charges of unfair labor practice – has case law that upholds their arguments.

“MERC has had rulings in the past that said neither party has the right to unilaterally remove language from a collective bargaining agreement,” Skauge said.

Witter cited a February 2012 case between Calhoun Intermediate School District and its teachers union. The district alleged the union was guilty of unfair labor practice by refusing to consider proposals that did not contain the prohibited bargaining items.

The judge agreed, ruling the acts of the union had been unlawful.

A meeting of the minds

In a prior interview with The Mining Journal, Veiht said she was surprised when the union refused to sign a contract that did not contain the prohibited bargaining items, since documents showing the removal of the illegal language was shown to union representation on several occasions during negotiations.

Witter agreed, saying he gave the union, including Skauge, documents showing the illegal language struck through with black lines.

He said he provided 14 of those documents – calling them board public act compliance notifications – to the union. In each notification, the struck language was clearly visible, as was a reference to the specific state law prohibiting the inclusion of that language.

Witter said he attempted to discuss the reasons behind removing the language with Skauge, who would say they could not discuss those items.

“In any of those sessions, (Skauge) never brought up any of those board public act compliance notices that I gave him, except to say ‘If you take out the language, we’re going to file an unfair labor practice charge,'” Witter said. “My response, generally, to that is ‘You have to do what you have to do. We believe that we’re following the law here and will prevail.'”

Witter said discussion pertaining to the removal of the language was allowed under the law. However, bargaining as to the removal was illegal. In other words, school districts could say they were taking the language out, but no one could try to gain something from the removal.

While Veiht was surprised by the union’s refusal to sign the contract without the prohibited language, Skauge said he was surprised to receive a contract without the language.

He said removing the language was never discussed during negotiations.

“They did not say anything,” Skauge said. “That was never discussed at any of the meetings I was at.”

Though Skauge did say he was aware, through negotiating other teacher contracts in the area, that the prohibited bargaining items did exist and that districts would likely want them removed.

“I know that every district wants to take some language out because that’s what they’re being told by their attorney firms,” he said.

Veiht and MAPS Board of Education President Rich Rossway said their attorneys had advised them the ratified tentative agreement was, for all intents and purposes, the contract between both parties.

Witter said a meeting of the minds had to occur at the ratification of that agreement in order for it to be legally binding, meaning both sides had to have a similar expectation of the contract that was to come.

He said he believes that occurred on Aug. 31, when the agreement was signed by both parties.

But when the union refused to sign the contract, and when union representative Jayme Bell spoke at a February board meeting saying the union would not sign any contract that did not contain the language, Witter said the union effectively repudiated the contract, sending everyone back to square one.

“If you just have ratification without signatures on the contract, the only way it survives as a contract is if the two parties have a meeting of the minds in the same way that you have a contract on everything, and they don’t,” Witter said. “In my opinion, there is no contract in Marquette.”

Witter said any attempt to say the union was not put on notice the language would be removed was disingenuous, adding the union behaved “atrociously” and did “a big injustice to the school district.”

“(The district) could say they were duped here,” Witter said. “That’s the first thing I’d be saying.”

Jackie Stark can be reached at 906-228-2500, ext. 242. Her email address is jstark@miningjournal.net.