PERA undermines democracy

PERA undermines democracy

August 25, 2016

In an August 19, 1937 letter to Luther C. Steward, President of the National Federation of Federal Employees, President Franklin D. Roosevelt explained why collective bargaining was not appropriate for public employees:

[T]he process of collective bargaining . . . cannot be transplanted into the public service. . . . The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

Roosevelt was speaking of collective bargaining for federal employees, but it applies equally to state and local governments. The employer is the people, and they govern by means of laws enacted by their elected representatives: city councils, county commissions and school boards. The power to enact laws cannot be delegated to unelected officials operating in a collective bargaining process shielded from public view.

But that is exactly what Michigan's Public Employment Relations Act (PERA) does. Attorney General Frank Kelley recognized this in an August 31, 1984 opinion. The question was whether an employee group could, in the collective bargaining process, negotiate retirement plan provisions that conflicted with those established by the board of the Municipal Employees Retirement System (MERS). In the Municipal Employees Retirement Act of 1984, Act 427 Of 1984, the MERS board was given authority to "determine and establish all of the provisions of the retirement system affecting benefit eligibility, benefit programs, contribution amounts . . ." Citing several Michigan Supreme Court decisions, Kelley concluded that PERA was the dominant law in public employment relations. The MERS retirement board's authority under 1945 PA 135, therefore, was subject to the right to bargain collectively under PERA. Kelley ended his opinion with these statements:

By way of epilogue, it is to be noted that the foregoing conclusions accord to public employers and their affected employees the right to, in effect, negotiate a statute out of existence as to the contracting parties through collective bargaining.

Notwithstanding my concern in this regard, the answers to your questions were constrained by the Supreme Court's consistent holdings with respect to the dominance of PERA in the public employment sphere. The continuation of such predominance is a question for legislative consideration.

PERA is bad law not only because it diminishes Michigan citizens' right to govern themselves through their elected representatives, but because it is an amazing example of crappy law-making. It drew heavily from the National Labor Relations Act, which was designed for the private sector, not the public sector, and it provided no guidance for the many instances in which it would come into conflict with existing Michigan statutes. That's why so many cases were brought before the courts.

PERA must be repealed, but keep in mind that, while requiring collective bargaining for local governments and schools, PERA also prohibits strikes. PERA was preceded by the Hutchinson Act, PA 336 of 1947, which prohibited public employee strikes and provided the same mediation services as had been provided private employers and employee groups since 1939. Rather than reverting to the Hutchinson Act, however, I suggest simply repealing PERA - not replacing it with another state law. This would allow local governments and schools to make their own policies in regard to collective bargaining and strikes. Policies for some public employers may not be appropriate for others, and a variety of approaches would provide the opportunity to determine which are most effective.

When it comes to local governments and schools and the way they deal with their employees, the best approach for the state legislature is to stay the hell out of it.

Note: Much of my understanding of PERA and its problems comes from a 1987 paper by the Citizens Research Council of Michigan, The Public Employment Relations Act: Conflicts and Possible Alternatives.

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