HB-5387, As Passed House, June 9, 2016HB-5387, As Passed Senate, June 8, 2016

SUBSTITUTE FOR

HOUSE BILL NO. 5387

     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 2a and 6 (MCL 423.202a and 423.206), section

2a as added and section 6 as amended by 1994 PA 112.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2a. (1) If a public school employer alleges that there is

a strike by 1 or more public school employees in violation of

section 2, the public school employer shall notify the commission

of the full or partial days a public school employee was engaged in

the alleged strike.Upon belief that conditions constituting a

strike by 1 or more public employees in violation of section 2

exist, the public school employer or the superintendent of public

instruction, after consultation with the public school employer,

shall notify the commission of the full or partial days that the

alleged strike has occurred and the name and address of the

bargaining representative. The notice shall be accompanied by a

sworn affidavit, supported by any available documentary proof,

containing a clear and concise statement of the facts upon which

the public school employer or the superintendent of public

instruction relies to establish a violation of section 2. The

public school employer or the superintendent of public instruction

shall concurrently serve the bargaining representative with a copy

of the notice. If the public school employer or the superintendent

of public instruction has not notified the commission of an

allegation of a strike under this subsection, a parent or legal

guardian of a child who is enrolled in the school district may

notify the commission of the full or partial days that 1 or more

public school employees were engaged in an alleged strike.

     (2) If a bargaining representative alleges that there is a

lockout by a public school employer in violation of section 2, the

bargaining representative shall notify the commission of the full

or partial days of the alleged lockout.

     (3) Within 60 15 days after receipt of a notice made pursuant

to under subsection (1) or (2), the commission shall conduct a

hearing to determine if there has been a violation and shall issue

its decision and order. conditions constituting a strike by 1 or

more public school employees in violation of section 2 or a lockout

exist. The person giving notice under subsection (1) or (2) bears

the burden of proof at the hearing on the allegations. The

commission shall issue its decision within 3 business days after

the close of the hearing. A hearing conducted under this subsection

is separate and distinct from, and is not subject to the procedures

and timelines of, a proceeding conducted under section 6.

     (4) If the commission determines that conditions constituting

a strike in violation of section 2 exist, the superintendent of

public instruction or the public school employer shall, within 5

business days after notification of the decision, notify the

commission of the name and home address of each public school

employee alleged to have participated in the strike. The

superintendent of public instruction or the public school employer

shall, within the same period, serve with or mail to each named

public school employee a copy of the notice.

     (5) A public school employee named in the notice under

subsection (4) and alleged to have been either absent from work

without permission of the public school employer or to have

abstained wholly or in part from the full performance of his or her

normal duties without permission on a date when a strike occurred

is presumed to have engaged in the strike on that date.

     (6) A public school employee presumed to have engaged in a

strike in violation of section 2 may challenge that presumption

within 10 days after the date the notice was served or mailed to

the employee under subsection (4), by filing with the commission

and causing to be served on the superintendent of public

instruction or the public school employer, a sworn affidavit,

supported by available documentary proof, containing a clear and

concise statement of the facts upon which he or she relies to show

that the determination was incorrect.

     (7) The public school employer shall deduct from the annual

salary of a public school employee named in a notice under

subsection (4) who fails to file an affidavit and supporting proof

under subsection (6) an amount equal to 1 day of pay for that

public school employee for each full or partial day that he or she

engaged in the strike. The public school employee's annual salary

is the annual salary that is established in the applicable contract

in effect at the time of the strike or, if no applicable contract

is in effect at the time of the strike, in the applicable contract

in effect at the time of the deduction. However, if no applicable

contract is in effect at either of those times, the public school

employee's annual salary shall be considered to be the annual

salary that applied or would have applied to the public school

employee in the most recent applicable contract in effect before

the strike. A public school employer shall comply promptly with

this subsection. A deduction under this subsection is not a

demotion for purposes of 1937 (Ex Sess) PA 4, MCL 38.71 to 38.191.

     (8) If a public school employee named in a notice under

subsection (4) files a timely affidavit and supporting proof, a

commissioner, the commission, or an agent of the commission shall,

within 15 days after receipt of the affidavit and supporting proof,

commence a hearing to determine whether the public school employee

engaged in a strike in violation of section 2. The public school

employee bears the burden of proof at the hearing. A hearing

conducted under this subsection is separate and distinct from, and

is not subject to the procedures and timelines of, a proceeding

under section 6.

(9) (4) If, after a hearing under subsection (3), a majority

of the commission finds that 1 or more public school employees

engaged in a strike in violation of section 2, the commission shall

fine each public school employee an amount equal to 1 day of pay

for that public school employee for each full or partial day that

he or she engaged in the strike and shall fine the bargaining

representative of the public school employee or employees $5,000.00

for each full or partial day the public school employee or

employees engaged in the strike.After a hearing under subsection

(8), if a commissioner, the commission, or an agent of the

commission determines by the preponderance of the evidence that the

public school employee engaged in a strike in violation of section

2, the individual or commission shall state its findings of fact

and shall issue and cause to be served on the public school

employee an order requiring the employee to cease and desist from

the unlawful conduct and the public school employer to deduct from

the annual salary, as described in subsection (7), of the public

school employee an amount equal to 1 day of pay for that public

school employee for each full or partial day that he or she engaged

in the strike. If the evidence is presented before a commissioner

or agent of the commission, the commissioner or agent shall issue

and cause to be served on the parties to the proceeding a proposed

decision, together with a recommended order, which shall be filed

with the commission. If a party does not file an exception within

20 days after service of the proposed decision, the recommended

order becomes the order of the commission and is effective as

stated in the order.

(10) (5) If, after a hearing under subsection (3), a majority

of the commission finds that a public school employer instituted a

lockout in violation of section 2, the commission shall fine the

public school employer $5,000.00 for each full or partial day of

the lockout and shall fine each member of the public school

employer's governing board $250.00 for each full or partial day of

the lockout. The fine shall be paid to the commission and

transmitted as provided in subsection (11).

     (6) If the commission imposes a fine against a public school

employee under subsection (4) and the public school employee

continues to be employed by a public school employer, the

commission shall order the public school employer to deduct the

fine from the public school employee's annual salary. The public

school employee's annual salary is the annual salary that is

established in the applicable contract in effect at the time of the

strike or, if no applicable contract is in effect at the time of

the strike, in the applicable contract in effect at the time of the

decision and order. However, if no applicable contract is in effect

at either of those times, the public school employee's annual

salary shall be considered to be the annual salary that applied or

would have applied to the public school employee in the most recent

applicable contract in effect before the strike. A public school

employer shall comply promptly with an order under this subsection.

A deduction under this subsection is not a demotion for the

purposes of Act No. 4 of the Extra Session of 1937, being sections

38.71 to 38.191 of the Michigan Compiled Laws.

(11) (7) The commission shall transmit money received from

fines imposed under this section, and a public school employer

shall transmit money deducted pursuant to an order under subsection

(6), If a public school employer does not deduct money from a

public school employee's pay pursuant to an order under this

section or if the commission does not receive payment of a fine it

imposed under this section within 30 days, the superintendent of

public instruction shall institute collection proceedings and the

money received shall be transmitted to the state treasurer for

deposit in the state school aid fund established under section 11

of article IX of the state constitution of 1963.

     (8) If the commission does not receive payment of a fine

imposed under this section within 30 days after the imposition of

the fine, or if a public school employer does not deduct a fine

from a public school employee's pay pursuant to an order under

subsection (6), the commission shall institute collection

proceedings.

      (12) Deductions imposed under this section are in addition

to any loss of pay attributable to the full or partial day that

the public school employee was absent from work as a result of

the strike under section 2 and any other penalty prescribed by

this act and by other law.

(13) (9) Fines imposed under this section are in addition to

all other penalties prescribed by this act and by law.

(14) (10) A public school employer, the superintendent of

public instruction, or the attorney general may bring an action to

enjoin a strike by public school employees in violation of section

2, and a bargaining representative may bring an action to enjoin a

lockout by a public school employer in violation of section 2, in

the circuit court for the county in which the affected public

school is located. A If the commission has made a determination

after a hearing under subsection (3) that a strike or lockout

exists, that finding shall not be overturned except by clear and

convincing evidence. If the court having jurisdiction of an action

brought under this subsection shall grant injunctive relief if the

court finds that a strike or lockout has occurred, without regard

to the existence of other remedies, demonstration of irreparable

harm, or other factors. Failure to comply with an order of the

court may be punished as contempt. In addition, the court shall

award court costs and reasonable attorney fees to a plaintiff who

prevails in an action brought under this subsection.finds that

conditions constituting a strike or lockout in violation of section

2 exist and unless clear and convincing evidence has shown that the

sanction would not be equitable or the sanction would duplicate a

sanction imposed by the commission for the same activity under

subsection (9) or (10), the court shall do all of the following:

     (a) For a strike in violation of section 2, order each public

school employee to pay a fine in an amount equal to 1 day of pay

for that public school employee for each full or partial day the

public school employee engaged in the strike. For a lockout in

violation of section 2, order the public school employer to pay a

fine of $5,000.00 for each full or partial day of the lockout and

order each member of the public school employer's governing board

to pay a fine of $250.00 for each full or partial day of the

lockout. A fine imposed under this subsection shall be transmitted

to the state treasurer for deposit into the state school aid fund

established under section 11 of article IX of the state

constitution of 1963.

     (b) Order the public school employees or public school

employer acting in violation of section 2 to end the strike or

lockout.

     (c) Award costs and attorney fees to a plaintiff who prevails

in an action under this subsection.

     (d) Grant additional equitable relief that the court finds

appropriate.

     (15) An order issued under subsection (14) is enforceable

through the court's contempt power.

(16) (11) A public school employer shall not provide to a

public school employee or to a board member any compensation or

additional work assignment that is intended to reimburse the public

school employee or board member for a monetary penalty imposed

under this section or that is intended to allow the public school

employee or board member to recover a monetary penalty imposed

under this section.

(17) (12) As used in this section, "public school employee"

means a person employed by a public school employer.

     Sec. 6. (1) Notwithstanding the provisions of any other law, a

public employee who, by concerted action with others and without

the lawful approval of his or her superior, willfully absents

himself or herself from his or her position, or abstains in whole

or in part from the full, faithful and proper performance of his or

her duties for the purpose of inducing, influencing or coercing a

change in employment conditions, compensation, or the rights,

privileges, or obligations of employment, or a public employee

employed by a public school employer who engages in an action

described in this subsection 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, shall be

considered to be on strike.

     (2) Before a public employer may discipline or discharge a

public employee for engaging in a strike, the public employee, upon

request, is entitled to a determination under this section as to

whether he or she violated this act. The request shall be filed in

writing, with the officer or body having power to remove or

discipline the employee, within 10 days after regular compensation

of the employee has ceased or other discipline has been imposed. If

a request is filed, the officer or body, within 10 5 days after

receipt of the request, shall commence a proceeding for the

determination of whether the public employee has violated this act.

The proceedings shall be held in accordance with the law and

regulations appropriate to a proceeding to remove the public

employee and shall be held without unnecessary delay. The decision

of the officer or body shall be made within 10 2 days after the

conclusion of the proceeding. If the employee involved is found to

have violated this act and his or her employment is terminated or

other discipline is imposed, the employee has the right of review

to the circuit court having jurisdiction of the parties, within 30

days from the date of the decision, for a determination as to

whether the decision is supported by competent, material, and

substantial evidence on the whole record. A public employer may

consolidate employee hearings under this subsection unless the

employee demonstrates manifest injustice from the consolidation.

This subsection does not apply to a penalty imposed under section

2a.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.