Decided December 28, 1978. Rehearing denied 406 Mich. 1117.
BLAIR MOODY, JR., J.
On April 30, 1973, the academic senate of Central Michigan University passed a resolution adopting a teaching effectiveness program which provided that students, as well as department faculty, evaluate the faculty members. Although the form of and weight to be given the student evaluations in department recommendations were not specified, the program did provide that "[d]epartmental recommendations for reappointment, promotion and tenure should be accompanied by evidence of teaching effectiveness".
Administrative Law Judge Schlomo Sperka upheld the faculty association's unfair labor practice charge, finding that the university had violated § 10 of the public employment relations act (hereinafter PERA) by unilaterally adopting and implementing the teaching effectiveness program without bargaining with the exclusive, certified collective bargaining agent of its faculty.
The university appealed to the Michigan Employment Relations Commission (hereinafter MERC). In a split decision, the two-member majority reversed Judge Sperka's decision and dismissed the unfair labor practice charge. After discussing the difference between institutions of higher learning and other public employers as related to the scope of bargaining, the MERC majority found the program in question to be predominantly a matter of educational policy and not mandatorily negotiable. MERC reasoned that since Central Michigan University derives its existence from constitutional authority, § 15 of the PERA does not have full application when applied to university employees. Const 1963, art 8, § 6.
The issue on this appeal is whether the elements, procedures and criteria involving evaluations for purposes of reappointment, retention and promotion are "other terms and conditions of employment" within the meaning of the PERA. The crux of this issue is the question whether the nature of the public employment alters the scope of mandatory bargaining.
It is well settled that Michigan's institutions of higher education are public employers subject to the provisions of the PERA. Board of Control of Eastern Michigan University v Labor Mediation Board, 384 Mich. 561; 184 N.W.2d 921 (1971); Regents of the University of Michigan v Employment Relations Comm, 389 Mich. 96; 204 N.W.2d 218 (1973). The duty of a public employer to bargain collectively with the employees' representative is set forth in § 15 of the PERA, patterned after § 8(d) of the National Labor Relations Act
"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives.
In both the PERA and NLRA, the collective bargaining obligation is defined as the mutual duty of labor and management to bargain in good faith with respect to "wages, hours, and other terms and conditions of employment". The subjects included within the phrase "wages, hours, and other terms and conditions of employment" are referred to as "mandatory subjects" of bargaining. Once a specific subject has been classified as a mandatory subject of bargaining, the parties are required to bargain concerning the subject, and neither party may take unilateral action on the subject absent an impasse in negotiations. See generally Morris, ed, The Developing Labor Law, (Washington, D C: Bureau of National Affairs, Inc, 1971), chs 14-16; National Labor Relations Board v Wooster Division of Borg-Warner Corp, 356 U.S. 342; 78 S.Ct. 718; 2 L Ed 2d 823 (1958); Fibreboard Paper Products Corp v National Labor Relations Board, 379 U.S. 203; 85 S.Ct. 398; 13 L Ed 2d 233; 6 ALR3d 1130 (1964).
The United States Supreme Court has concluded that one of the primary purposes of the NLRA is labor relations peace and that this objective can best be achieved by adopting a liberal approach to what constitutes a mandatory subject of bargaining. See, for example, Fibreboard Paper Products, supra. Following the Federal courts' approach, Michigan has adopted a broad view of "other terms and conditions of employment". See, for
"[S]uch subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, no-strike clauses, profit sharing plans, rental of company houses, grievance procedures, sick leave, work-rules, seniority and promotion, compulsory retirement age, and management rights clauses, are examples of mandatory subjects of bargaining." (Emphasis added.)
Furthermore, after looking to Federal precedent, the Court of Appeals recently held that the subject of promotional standards and the criteria for those standards are mandatory subjects of collective bargaining. See Detroit Police Officers Ass'n v Detroit, 61 Mich.App. 487; 233 N.W.2d 49 (1975), lv den 395 Mich. 756 (1975).
In the instant case we are asked whether the elements, procedures and criteria involving evaluations for purposes of reappointment, retention and promotion are "other terms and conditions of employment". MCL 423.215; MSA 17.455(15). We conclude that reappointment, retention and promotion criteria are "other terms and conditions of employment" and are a mandatory subject of collective bargaining.
Having reached this conclusion, we must now address the critical question whether the nature of the public employment alters the scope of the
This argument, that specific public employers should be insulated from the collective bargaining obligation of the PERA because of constitutional and statutory grants of authority, was recently advanced in Pontiac Police Officers Ass'n v Pontiac, 397 Mich. 674; 246 N.W.2d 831 (1976). In that case, the municipality of Pontiac argued that to require bargaining concerning grievance and arbitration procedures would interfere with the constitutional and statutory powers
Therefore, we have previously held that the PERA was intended by the Legislature to supersede conflicting laws and is superimposed even on those institutions which derive their powers from the Constitution itself. The Legislature in adopting the very words of the NLRA chose to adopt the
As stated in Justice LEVIN'S opinion in Pontiac Police Officers Ass'n, supra:
"If the Legislature deems it appropriate to redefine the scope of the collective bargaining obligation of the public employers generally or of particular public employers and the representatives of their employees to include `wages, hours, and some other terms and conditions of employment', it may do so.
"This Court cannot properly decide ad hoc that what has uniformly been regarded a `condition' of employment is not such a condition as applied to a particular public employer although it continues to be such a condition for other employers, public and private. By eschewing redefinition, we underscore the prerogative of the Legislature to give such consideration as it deems warranted to the claims of public employers that the scope of the collective bargaining obligation impinges unduly on their power to govern." Pontiac Police Officers Ass'n, supra, 684.
Clearly, the PERA was intended to cover all public employees except for civil service employees
As a result, we find the unique status accorded state universities by constitutional and statutory authority does not alter the scope of their collective bargaining obligation under the PERA. If university professors are truly unique and thus different from other public employees, the Legislature must carve out an exception to the PERA. This Court cannot.
Alternatively, the university contends that the incorporation of student evaluations into the criteria for faculty promotion and retention is predominantly a matter of education policy and, therefore, outside the arena of mandatory collective bargaining. We are urged that the case of Regents of the University of Michigan v Employment Relations Comm, 389 Mich. 96; 204 N.W.2d 218 (1973), supports this position. The language from that case, of significance to this dispute, states:
"Because of the unique nature of the University of Michigan, * * * the scope of bargaining by the Association
Thus, the scope of collective bargaining is limited only if the subject matter "falls clearly within the educational sphere". In the instant case, the procedures and criteria adopted affect the retention, tenure and promotion of faculty members. These are clearly matters within the employment sphere, crucial to the employer-employee relationship. They are not matters within the educational sphere as that phrase was used in Regents, supra.
We agree with the analysis of Court of Appeals dissenter Judge MICHAEL CAVANAGH:
"I cannot agree * * * that evaluative criteria for purposes of tenure and promotion are strictly `educational policy'. This matter bears directly on the means by which the administration will determine whether or not untenured faculty members will continue their positions. Surely the criteria for that decision are important to the members of the bargaining unit. While evaluation of teaching effectiveness is not a trivial element of the university's education program, I cannot
Consequently, we reverse the MERC and Court of Appeals majority opinions and reinstate the decision and recommended order of the Administrative Law Judge.
KAVANAGH, C.J., and WILLIAMS, LEVIN, and RYAN, JJ., concurred with BLAIR MOODY, JR., J.
This appeal concerns the scope of mandatory collective bargaining in public institutions of higher education. A program promoting teaching effectiveness developed by the Academic Senate of Central Michigan University provides the backdrop for the dispute. An element of the program was an intradepartmental evaluation of each faculty member's teaching effectiveness, with some student input. The information obtained was to be made available to the evaluee and those persons making recommendations or decisions regarding reappointment, tenure and promotion.
The program was adopted by the Academic Senate after three years of deliberations and was implemented in various departments before referral to the University Board of Trustees for ratification.
Subsequent to the adoption of the program by the Board of Trustees, the Central Michigan University Faculty Association (Association) filed an
The administrative law judge upheld the Association's charge. The Michigan Employment Relations Commission (MERC) determined, however, that the program was "predominantly a matter of education policy not mandatorily negotiable". Consequently, MERC reversed the decision of the administrative law judge and dismissed the complaint. The Court of Appeals affirmed MERC's decision. 75 Mich.App. 101; 254 N.W.2d 802 (1977).
We also agree with MERC. The particular facts of this case create issues which impact predominantly upon educational policy rather than upon
Central Michigan University is a state institution of higher education. Pursuant to Const 1963, art 8, § 6, it is governed by a Board of Trustees appointed by the Governor. The constitutional grant of supervisory power to the board was implemented by the Legislature. MCL 390.551 et seq.; MSA 15.1120(1) et seq. However, this Court has consistently ruled that PERA applies to state universities.
The forerunner of the existing Academic Senate of Central Michigan University was first established in 1946 and a similar body has existed continuously ever since. On May 20, 1970, the current Academic Senate was formed. It was composed of some 41 faculty members elected by their departmental peers, 15 representatives of the administration (all deans plus the University President and Vice President) and 6 student representatives, elected by the Student Senate. As stated in the preamble to the Senate's Constitution, the basic purpose of the Senate is to "provide a legislative body in the University in which representatives
The Academic Senate is the principal academic (or educational) policy-making body of the University. Some concerns delineated in its Constitution are: admissions, curriculum, degree requirements, faculty participation in selection of administrators, academic freedom, issues of faculty welfare (salaries, insurance, vacations, etc.), University financial policies and planning, and standards for faculty appointment, promotion and tenure. In this way, the faculty of the University takes an active role in what would traditionally be considered management functions in a different setting. The Board of Trustees, while cloaked with de jure responsibility and authority, has delegated much of its role to the Academic Senate. The faculty thus shares authority over many management areas with the board. Indeed, the testimony of Dr. William B. Boyd, President of the University, makes it clear that the teaching effectiveness program became University policy upon passage by the Senate and would have remained so even without the imprimatur of the board.
Since the representative election of September 24, 1969, the Association has been the exclusive bargaining representative for the University faculty. This status was reaffirmed by a collective bargaining agreement covering the period from May 21, 1971 to June 30, 1974. As such, the Association is the agent of the faculty and the University must negotiate with it concerning "wages, hours, and other terms and conditions of employment". MCL 423.215; MSA 17.455(15).
The concept that each academic department should establish a program promoting teaching effectiveness was first proposed to the University
Subsequently, a second committee was authorized to study and make recommendations concerning implementation of the program. This report was submitted on September 25, 1972. The University alleges that high-ranking Association members participated in "shaping the Senate's course of action" during the three years prior to the program's adoption. Also, a new labor agreement was adopted during that period (1971-1974) when everyone concerned had notice. Plaintiff says that makes no difference. The program, "Teaching Effectiveness — Implementing Recommendations", was formally adopted by resolution of the Academic Senate on April 30, 1973. The University Board of Trustees ratified the program verbatim on August 15, 1973, without any formal notification to or discussion with the Association. The Association filed its unfair labor practice charge on January 28, 1974.
The charge alleged that the unilateral adoption of the program violated the mandatory bargaining aspects of PERA. Specific complaints were directed at Part I, which reads:
"I. Implementing recommendations: for departments.
"a. Each academic department should establish not later than one year after the approval of this recommendation, a systematic program for (a) evaluating and (b) improving teaching effectiveness of every faculty member in the department.
"b. All faculty members of the department should
"c. Students as well as departmental faculty should evaluate the faculty of said department.
"d. Information obtained about an individual faculty member should be made available to that individual faculty member and to those individuals having the responsibility of making recommendations and/or decisions regarding reappointment, merit pay, tenure, and promotion.
"e. Departmental recommendations for reappointment, promotion and tenure should be accompanied by evidence of teaching effectiveness. This is not to limit the accompanying evidence to data on teaching effectiveness."
Particular concern was expressed over the alleged mandatory inclusion of student evaluations.
The Association has made it clear that only Part I of the program is challenged. No objection is proffered concerning the concept of the teaching effectiveness program itself. The charge was directed solely at the unilateral institution of these evaluations as an element of the decision-making process in areas of reappointment, tenure, and promotion (and, allegedly, merit pay).
Although the document at issue purports to apply to merit pay, such was not actually the case.
Therefore, we will be concerned only with the program's effect upon reappointment, tenure, and promotion.
We are asked to decide whether Part I of the teaching effectiveness program is a mandatory subject of collective bargaining, as distinct from a permissive or illegal subject. The Court has recently defined these terms as having the same meaning under PERA as under the NLRA:
"Mandatory subjects of collective bargaining are those within the scope of `wages, hours, and other terms and conditions of employment'. [MCL 423.215; MSA 17.455(15).] If either party proposes a mandatory subject, both parties are obligated to bargain about it in good faith.
"Permissive subjects of collective bargaining are those which fall outside the scope of `wages, hours, and other terms and conditions of employment', and may be negotiated only if both parties agree.
"Illegal subjects are those which even if negotiated will not be enforced because adoption would be violative of the law or of the NLRA." Pontiac Police Officers Ass'n v Pontiac, 397 Mich. 674, 679; 246 N.W.2d 831 (1976).
Detroit Police Officers Ass'n v Detroit, 391 Mich. 44, 54; 214 N.W.2d 803 (1974). See generally Fibreboard Paper Products Corp v National Labor Relations
Therefore, the issue is whether Part I of the program encompasses mandatory or permissive subjects of bargaining. To sharpen the issue further, we accept MERC's statement that:
"The scope of bargaining issues in educational institutions has been presented in terms of whether an employer's action or activity is educational policy or a condition of employment. The PERA bargaining obligation, under this theory, applies only to the latter. Under this theory, the issue may be framed in the alternative. If the portion of the `Teaching Effectiveness — Implementing Recommendations' document to which objection is made by the Association is educational policy, the University Board of Trustees had power to adopt and implement it. If, on the other hand, Item I of the `Teaching Effectiveness — Implementing Recommendations' document is a condition of employment, PERA requires collective bargaining before adoption by the Board of Trustees."
The evaluative criteria and procedures, as an element of the teaching effectiveness program — but also bearing upon faculty reappointment, tenure, and promotion — fall into that area of overlap and conflict between the uncontroverted extremes of "educational policy" and "employment conditions". The growth of litigation testing the scope of the bargaining obligation in the public sector of higher education suggests that the majority of disputed items fall into this zone of overlap.
We note that the governing system employed at the University places members of the faculty on both sides of the bargaining table. They make many management decisions within the Academic
As noted above, many courts recently have been asked to decide issues concerning the scope of mandatory bargaining in the public sector. Two basic approaches for resolving the problem have evolved.
"This standard [`significant relation' standard] is inadequate because it does not properly recognize the competing interests at stake where there is an overlap between conditions of employment on the one hand and management prerogatives on the other. By focusing on only one-half of the overlap problem, this standard
Other courts have adopted a test which attempts to weigh the effects on both management and union prerogatives — the balancing test. The Oregon Court of Appeals recently stated that:
"[T]he appropriate test to be applied in determining whether a proposed subject is a `condition of employment' and therefore a mandatory subject of bargaining is to balance the element of educational policy involved against the effect that the subject has on a teacher's employment." Sutherlin Education Ass'n v Sutherlin School District No 130, 25 Or.App. 85, 88; 548 P.2d 204, 205 (1976).
Courts in Kansas, Pennsylvania and Alaska have also found the balancing standard to be appropriate.
We find that the balancing approach is an evenhanded method for resolving scope questions. It
The document challenged as to Part I states that each academic department should develop a program for evaluating and improving the teaching effectiveness of every faculty member. Student opinions are included as one element of the evaluative process. No particular weight is required. Departmental recommendations "should be" accompanied by "evidence of teaching effectiveness". Such evidence is not limited.
The thrust of Part I is to require documentation of teaching effectiveness so that the individual can have access to concrete bases for a department's recommendation and can be encouraged to improve specific defects. There is nothing novel in using professional rewards (promotion, tenure, reappointment) as a mode of encouragement. Teaching effectiveness data, albeit in a less systematic or above-board fashion, has always been a part of the decision-making process at the University when faculty members seek promotion, tenure or reappointment.
It is not disputed that the decision to implement a program promoting teaching effectiveness constitutes educational policy. The Association's position is that the elements, criteria, and procedures of the evaluation process affect conditions of employment (reappointment, tenure and promotion) and therefore require prior bargaining. Assuming, arguendo, that reappointment, tenure and promotion are conditions of public employment, we discern only a minimal effect from provisions of the evaluation process adopted by the University.
The only part of the evaluation process which is not left to subsequent faculty formulation is some use of student opinions. However, even the form of and weight to be given the student evaluations in departmental recommendations are left to the faculty. The impact upon conditions of employment from this requirement cannot be said to be anything more than minor, particularly when one notes that departments were using student evaluations in a similar fashion prior to adoption of the program in issue.
Utilization of student evaluations recognizes that those being taught are in a unique position to perceive whether the teacher, for instance, has
Perhaps some tension derives from the fact that an individual's evaluation of teaching effectiveness must by its nature be subjective. Some students may actually be unfair, but that is not a trait exclusive to a few among a predominantly adult group who happen to be students. This may be why the Senate provided such great flexibility in the use by the faculty of all criteria and why all departmental recommendations and supporting material must be provided to the person being evaluated. The core concern is the quality of education — from which the quality of teaching is inseparable.
At the University, the objectives and methods of enhancing the excellence of higher education and assisting the faculty toward effective teaching are within the ambit of educational policy.
We find, therefore, that Part I of the teaching effectiveness program impacts heavily upon matters of educational policy and only peripherally upon conditions of employment. Consequently, it is not a subject of mandatory collective bargaining.
Our holding is in accord with decisions in other jurisdictions. In Association of New Jersey State College Faculties, Inc v Dungan, 64 N.J. 338; 316 A.2d 425 (1974), the New Jersey Supreme Court held that a unilateral implementation of a program for granting tenure and evaluating tenured faculty, including student input, was a matter of major educational policy. The New Jersey version of PERA also requires bargaining over "terms and conditions of employment". 34 NJ Stat Ann 13A-5.3. The Court suggested, however, that it would have been better labor relations policy to have discussed the program with the faculty prior to implementation. We note that the Central Michigan University program was developed exclusively by the Academic Senate itself over a three year period.
An analogous issue was decided by the New York Public Employee Relations Board in In the Matter of Board of Higher Education of City of New York, 7 PERB ¶ 7-3028, p 3042 (1974). After consultations with the faculty union, the Faculty Senate and the Student Senate, the board implemented student participation on the Personnel and Budget Committees of City University of New York. These committees recommended faculty reappointment, tenure and promotion. During subsequent contract negotiations, the faculty union demanded that the students be barred from the committees. The PERB held that student representation was not a subject of mandatory bargaining and noted:
"There is a difference between the role of college teachers as employees and their policy-making function
"We, too, distinguish between the role of faculty as employees and its role as a participant in the governance of its colleges. * * * The right of the faculty to negotiate over terms and conditions of employment does not enlarge or contract the traditional prerogatives of collegiality; neither does it subsume them. These prerogatives may continue to be exercised through the traditional channels of academic committees and faculty senates * * *. We note with approval the observation that, `faculty must continue to manage, even if that is an anomaly. They will, in a sense, be on both sides of the bargaining table'. We would qualify this observation, however; faculty may be on both sides of the table, but not their union."
The present trend of student and faculty involvement in university governance is a fact in our time of rapid change which must be squarely faced. The New York PERB in Board of Higher Education, supra, directs attention to the fact that student participation in faculty evaluation recognizes
"It would be a perversion of collective negotiations to impose it [mandatory bargaining] as a technique for resolving such disputes and thus disenfranchising other interested groups."
Although there is logic in some of the arguments that collective bargaining in an institution of higher education will eventually eliminate collegiality and block out social and educational interests of any but the employer and employee,
The balancing test assures, so far as possible, a fair resolution of competing statutory, constitutional
In the balancing, we can afford some weight to the role of students whose interest as ultimate beneficiaries of University education is real. The prerogatives and autonomy of the board, as appointed public officials, are also given equal consideration with the interests of the faculty. This result is of particular importance given the inherent political nature of collective bargaining in the public sector.
With the Alaska Supreme Court, we are persuaded that it is in the public interest to guard against a shift in the control of educational policy from the boards to the unions through successive rounds of bargaining. That Court said:
"Such a result could threaten the ability of elective government officials and appointive officers subject to their authority * * * to perform their functions in the broad public interest." Kenai Peninsula Borough School District v Kenai Peninsula Education Ass'n, 572 P.2d 416, 419 (Alaska, 1977).
We are mindful that our adoption of the balancing test requires some consideration of the scope of bargaining in public institutions of higher learning on a case-by-case basis. This is a proper result, however, given the diversity of such public institutions and student-faculty relationships. It is difficult to compare the shared authority and collegiality of higher education with the aggressive confrontation prevalent between cities and their public
Because MERC's opinion employs the balancing test here approved, we find no procedural or substantive purpose in a remand to weigh opposing interests. The MERC majority in summation said:
"Consistent with the holdings in other jurisdictions and based on the record as a whole, we find that the documentation of teaching effectiveness is predominantly a matter of educational policy not mandatorily negotiable." (Emphasis added.)
The governing system of shared authority and collegiality existing at Central Michigan University is both appropriate to excellence in higher education and conducive to good faculty-administration-student relations.
FITZGERALD, J., concurred with COLEMAN, J.
"For the purposes of this section, to bargain collectively is the performance of 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 the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession."
Because of the virtually identical language of the two acts, this Court has concluded that the Michigan Legislature intended that Federal precedent would be given great weight in interpreting § 15 of the PERA. Detroit Police Officers Ass'n v Detroit, 391 Mich. 44; 214 N.W.2d 803 (1974).
"The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service."
"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of 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 the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession."
"(1) It shall be unlawful for a public employer or an officer or agent of a public employer * * * (e) to refuse to bargain collectively with the representatives of its public employees * * *". MCL 423.210; MSA 17.455(10).
"Some statutes contain limitations on the scope of bargainable issues, but neither the limitations nor the generalization meets the special problem of a university faculty. That problem, stripped to its essentials, is to prevent the pervasive and traditional areas of faculty academic authority from being absorbed into the newly created collective bargaining process. Once a bargaining agent has the weight of statutory certification behind it, a familiar process comes into play. First, the matter of salaries is linked to the matter of workload; workload is then related directly to class size, class size to range of offerings, and range of offerings to curricular policy. Dispute over class size may also lead to bargaining over admissions policies. This transmutation of academic policy into employment terms is not inevitable, but it is quite likely to occur. Thus, an expert task force of the American Association for Higher Education, in a calm appraisal of the pros and cons of industrial-style collective bargaining for higher education, concluded that an academic agency such as a faculty senate would probably `atrophy' in the shadow of an external bargaining agent. If the faculty considers such an outcome undesirable, it is possible to argue that the bargaining agent, whether external or internal, is after all under the faculty's control — a majority can in due course repudiate it and choose a new one. But this may be easier prescribed than accomplished." Brown, Collective Bargaining in Higher Education, 67 Mich L Rev 1067, 1075-1076 (1969).