(Posted June 10) What IS the Hutchinson Act, anyway? ONLY the most important piece of public employee labor law extant in Michigan, although its adherents fear that it has been so emasculated by periodic amendments and court rulings over the past 70 years as to become almost useless.
Now, however, the Hutchinson Act — or at least its modern incarnation — appears to be back in business, courtesy of state legislation aimed at saving (at least temporarily) the embattled Detroit K-12 public school system.
All attention by the media during the past few months involving the Detroit Public Schools (DPS) has focused on how much money state government should give the nearly-bankrupt district, how Motown’s schools should be reorganized and administered, and whether a mayor-appointed Detroit Education Commission (DEC) should be created to control the opening and closing of K-12 institutions.
This week, the Legislature finally passed a six-bill DPS “reform” package that Gov. Rick Snyder said he would sign. Opposed by every Democrat in both the House and Senate (with the possible exception of Sen. Bert Johnson, who claims he “made a mistake”), the package turns DPS into an entity that will manage the district’s roughly $500 million debt and transfer the beleaguered district’s students, teachers, administrators and staff to a new creation — Detroit Community Schools. A handful of Republicans in both the House and Senate opposed one or more of the six bills, but every affirmative vote in both chambers was cast by a GOP lawmaker.
Five of the six bills, taken together, will pay off $465 million in DPS’s remaining debt over the next 10 years and steer some $150 million to the new public school district. The legislation dissolves the Snyder-created Education Achievement Authority (EAA), deemed a failure, after next year, and returns the district to a new elected school board that will be overseen by the same financial oversight body as now rides herd on the City of Detroit. The idea of a DEC, which would have been appointed by Detroit Mayor Mike Duggan, was broomed from the package.
But the one bill in the package that has gotten short shrift from the news media other than being described as “union-bashing” is HB 5387, sponsored by Rep. Daniela Garcia (R-Holland). The measure puts some teeth back into the Hutchinson Act by cracking down on teacher “sickouts” and “wildcat strikes” that proliferated in Detroit this spring just when negotiations over the DPS “bailout” were coming to a head. HB 5387 provides the following:
* Permits a parent or legal guardian to notify the Michigan Employment Relations Commission (MERC) of conditions constituting a strike, provided a public school employer (PSE) or the state Superintendent of Public Instruction (SSPI) does not.
* Shortens from 60 to 15 days the maximum time the state has to respond to such a notice, forcing the state to hold a hearing on whether a strike or lockout has occurred. The notifier bears the burden of proof, but MERC must issue a decision within three business days after the hearing.
* If MERC determines a strike has occurred , the SSPI or PSE must, within five business days, provide MERC with the name and home address of each employee alleged to have been on strike, and notice shall be served on those employees. The employee is presumed to have been on strike.
* Within 10 days, the employee may challenge that presumption (noted above) by filing an affidavit supported by documented proof that such a determination is incorrect.
* If no affidavit is filed, the PSE must promptly deduct from the salary of the employee one day of pay for every day that the employee has been engaged in a strike.
* For employees filing an affidavit, MERC shall commence a hearing within 15 days of receiving the affidavit to determine whether the employee has engaged in a strike. The employee bears the burden of proof. MERC or its agents have only to determine, by a preponderance of the evidence, whether the employee engaged in a strike.
* A proposed decision and recommended order must be filed with MERC. The employee has 20 days to file an “exception” to (a disagreement with) the proposed decision and order. If an “exception” is not filed by the employee, the recommended order becomes the final MERC order.
* If the PSE does not deduct money from an employee’s pay pursuant to a MERC order, or money is not received from the fine by MERC within 30 days, the SSPI must institute collection proceedings and the money received must be forwarded to the state treasurer for deposited in the state’s school aid fund.
Why was the Republican-controlled Legislature so hell bent on passing HB 5387 this week? And what does the name “Hutchinson” mean?
In 1947, a 33-year-old freshman state representative from tiny Fennville in west Michigan’s Allegan County introduced a bill that was passed and signed into law by Gov. Kim Sigler on July 3. The new act carried the name of its sponsor, the Hutchinson Act. For 69 years that law’s prohibition on public employee strikes in Michigan remains on the books.
J. Edward Hutchinson was a returning World War II veteran who had enlisted in the Army as a private 11 months before Pearl Harbor in 1941. At the end of the conflict he was discharged as a captain and came home to briefly practice law before running successfully for the state House in 1946. Hutchinson had attended the University of Michigan and graduated from its law school in 1938.
Hutchinson is best-remembered by national observers in an unflattering way — as the stubborn defender of President Richard Nixon while Hutchinson was the ranking Republican on the House Judiciary Committee, seated next to committee chairman Peter Rodino (D-NJ). During the televised impeachment hearings, Hutchinson shouted a long and pronounced “No” on each of five articles of impeachment before the committee between July 27-30, 1974 (the committee adopted three of the impeachment articles).
However, Hutchinson is remembered far differently by those who served with him in the Michigan Legislature and at the 1961-62 Constitutional Convention. Delegate Eugene (Gil) Wanger, a Republican delegate from Lansing, remembers Hutchinson as a “towering” figure at Con-Con, in fact being elected one of three vice presidents of the conclave (along with Republican George Romney and Democrat Tom Downs). “Ed was considered THE authority on state government at Con-Con,” says Wanger. “He knew all the ins and outs of state law on just about everything.”
Wanger also describes Hutchinson as “devastated” when the truth about Nixon’s involvement in Watergate was finally revealed in 1974, well after the House committee votes. “I spent 45 minutes with him in his office in Washington (D.C.) after the facts came out,” says Wanger, “and I don’t think he ever really got over it.”
Hutchinson had won election to Congress by an average of 63.5% of the vote during his first six terms, but he eked by his Democratic opponent with only 53.1% of the vote in 1974, three months after Nixon’s resignation and two months after President Gerald R. Ford’s pardon of RMN. Hutchinson declined to seek an eighth term, retiring rather than face a bruising GOP primary challenge in 1976 from ambitious Congressional staffer David Stockman, a native of Berrien County whose family had long been active in SW Michigan politics.
Earlier in his political career, Hutchinson had been elected to a second term in the state House in 1948 and then to the state senate in 1950, where he served five two-year terms (four-year senate terms didn’t begin until 1966). In 1961, Hutchinson was elected as a Con-Con delegate from his old senate district, and in 1962, when incumbent GOP Congressman Clare Hoffman decided to pack it in after a 28-year career in the U.S. House, Hutchinson won the Republican nomination to succeed him in the heavily GOP enclave.
As for Hutchinson’s most significant legislative achievement, the statute named after him, PA 336 of 1947 (MCL 423.201-08) established simple yet strict rules governing public employment law. The new 1947 act required mediation of grievances submitted by a majority of a group of employees by the Labor Mediation Board, a precursor of today’s MERC (see above). The new law prohibited strikes by public employees and imposed mandatory penalties on strikers.
The act defined “strike” as “the failure to report for duty, the wilful absence from one’s position, the stoppage of work, or the abstinence in whole or in part from the full, faithful and proper performance of the duties of employment, for the purpose of inducing, influencing or coercing a change in the conditions, or compensation or rights, privileges or obligations of employment.”
Public employment legal expert Bob LaBrant of Lansing points out that, under that definition, even a single public employee could be deemed to be on strike if that employee stopped working in order to extract some concession from an employer.
Under the Hutchinson Act, the penalties for engaging in a strike activity were mandatory, swift and strict. Any public employee considered to be striking was to be terminated from employment and was no longer entitled to pension or retirement benefits. A public employee contesting such termination was entitled only to a post-termination proceeding.
The Michigan Supreme Court, in 1951 dominated by Republicans, addressed the constitutionality of the Act’s strike prohibition in “City of Detroit v Division 26 of the Amalgamated Association of Street, Electric Railway & Coach Employees of America” 332 MCL 237. The supremes upheld the validity of the Hutchinson Act and its prohibition on public employee strikes as well as the immediate firing of public employees who go on strike.
In 1965, a Democratic-controlled Michigan Legislature (the first one since 1938) replaced the Hutchinson Act with the Public Employment Relations Act (PERA), signed, somewhat surprisingly, by Republican Gov. George Romney. Although PERA still contained a prohibition on strikes by public employees, the law now gave public employees in local government and school districts the right to collective bargaining along with the right to form and join labor organizations. The 1965 law repealed the Hutchinson Act’s automatic termination of striking public employees. PERA also changed what was considered a strike from all work stoppages to work stoppages for the sole purpose of influencing a change in the conditions of employment.
In 1968, a Democrat-controlled Michigan Supreme Court, in “School District for the City of Holland v Holland Education Association” (380 Mich 314) held that the Legislature could not compel the judiciary to grant an injunction in every case involving a strike by public employees. Such a provision, said the court, would destroy the independence of the judiciary. The Court also held that public employers had to make a showing of violence, irreparable injury or breach of the peace of order to gain injunctive relief.
Later, in a 1975 case — “Rockwell v Crestwood School District Board of Education” (393 Mich 616) — the Democratic-majority supremes held that a work stoppage solely in response to an employer’s unfair labor practice is protected “concerted activity” and, in those instances, returning striking employees were to be reinstated.
As a result of the 1965 PERA and subsequent court rulings, by the late 1970s, scores of teacher strikes throughout Michigan had become a rite of autumn, often delaying school openings.
The profusion of such incidents was reduced beginning in 1994 when, with Republican John Engler in the governor’s chair, legislative Republicans took advantage of their Senate majority and a brief edge in the state House as a result of a pair of Democratic resignations to push through PA 112, a significant altering of PERA.
PA 112 retained the 1965 definitions of strike activity and of conduct deemed to be a strike for all public employees who were not public school employees. For public school employees, strikes were defined to include an action “taken for the purpose of protesting or responding to an act alleged or determined to be an unfair labor practice” committed by the public employer. This had the effect of reversing the Rockwell case.
The PA 112 PERA amendments also imposed mandatory fines on public school employees if they were found to have participated in a prohibited strike. PA 112 imposed mandatory fines on bargaining representatives regardless of the bargaining representatives’ participation or encouragement of the prohibited strike and required mandatory injunctions against striking public school employees. PA 112 also created nine categories of prohibited subjects of collective bargaining that had previously been considered mandatory subjects of collective bargaining affecting the terms and conditions of employment.
In 1996, a Democrat-controlled Supreme Court, in “Michigan State AFL-CIO v Employment Relations Commission” (453 Mich 362), actually upheld the prohibition of unfair labor practice strikes, on appeal from an Ingham Co. circuit court decision which had overturned this provision. The Ingham circuit court had also struck down two other PA 112 provisions on mandatory injunctions against striking teachers and mandatory fines against the bargaining representatives of striking teachers, but those two rulings for some reason were not appealed.
Teacher strikes have become more rare since the passage of PA 112. However, wildcat teacher sickouts that close schools have become commonplace, especially in the Detroit public schools, where chronic absenteeism by students is also epidemic. Enforcement of PA 112 prohibitions and fines have been dependent upon school administrators filing for an enforcement action. Few ever have been. Only one case, involving Ann Arbor school bus drivers, ever went through a full PA 112 enforcement process.
This week, the Republican-majority legislature decided it had had enough. Passage of HB 5387 means we’ve come full circle from Ed Hutchinson’s 1947 law, which was designed to do a lot more than stamp out only teacher sickouts and wildcat strikes. Now, once again, maybe it will.