Michigan Labor Mediation Bd. v. Marr, Docket No. 7403

• Decision Date: 30 June 1970
• Docket Number: Docket No. 7403,No. 2,2
• Citation: 181 N.W.2d 44,25 Mich.App. 159
• Parties: , 76 L.R.R.M. (BNA) 2308, 64 Lab.Cas. P 52,439 MICHIGAN LABOR MEDIATION BOARD, Plaintiff, v. Hugh MARR, Sheriff of Tuscola County, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 44

181 N.W.2d 44

25 Mich.App. 159, 76 L.R.R.M. (BNA) 2308,

64 Lab.Cas. P 52,439

MICHIGAN LABOR MEDIATION BOARD, Plaintiff, v. Hugh MARR, Sheriff of Tuscola County, Defendant.

Docket No. 7403.

Court of Appeals of Michigan, Division No. 2.

June 30, 1970.

Released for Publication Nov. 25, 1970.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., for appellant.

James J. Epskamp, Caro, for appellee.

Before HOLBROOK, P.J., and R. B. BURNS and T. M. BURNS, JJ.

PER CURIAM.

This matter pertains to a petition of the Michigan labor mediation board for an enforcement of its order in accordance with § 16(d) of the public employees' labor relations act (PERA) M.C.L.A. § 423.216(d) (Stat.Ann.1968 Rev. § 17.455(16)(d)). Hugh Marr was and is sheriff of Tuscola county, and under the statute appointed 9 or 10 deputy sheriffs in his department. Hilton H. Sarles is a former deputy sheriff. On February 16, 1968, Sarles filed a charge with the Michigan labor mediation board alleging that Marr had been guilty of an unfair labor practice in dismissing Sarles because of his activities in forming a deputies' labor organization. On March 16, 1968, Marr filed an answer denying the charge and alleging that Sarles had been discharged for misconduct.

On April 3, 1968, a trial examiner, James R. McCormick, took testimony in Caro from witnesses offered by both Marr and Sarles. On April 30, 1968, McCormick issued a decision and recommended order in which he found that Marr was guilty of an unfair labor practice in discharging Sarles and that Sarles should be reinstated with back pay. More than 20 days later, no objection to the recommended order having been received, the board issued its decision and order on June 6, 1968, adopting the decision and order of the examiner and ordering that Sarles be reinstated to his former or substantially equivalent position with back pay. On May 22, the sheriff offered to take Sarles back as deputy sheriff, at his former pay, with the same hours, same leave, and any other fringe benefits, and assigned him at that time to the duties of turnkey of the jail.

The board was later advised that Sarles had refused the offer of reemployment because he claimed that it was a lesser job that was offered, that of turnkey in the jail. The board scheduled another hearing in Caro for the purpose of finding out if the job offered was a proper compliance with the board's order. On October 9, 1968, the trial examiner issued a decision and recommended order in which he found, as a matter of fact, that the offer of reemployment was to a lesser position, not substantially equivalent to Sarles' former position as a road patrol officer. The examiner's order required Marr to rehire Sarles as a road patrolman, make him whole for any loss from his discharge, and reimburse Sarles for costs of litigation and reasonable attorney's fees as to the second hearing.

On October 28, 1968, Marr filed exceptions with the labor mediation board to the recommended order. On December 5, 1968, the board issued its decision and order finding the exceptions to be without merit and adopted the recommended order as the order of the board.

The attorney general, on behalf of the board, filed this petition for enforcement alleging that Marr has 'refused and neglected to comply with the terms of the board's order of December 5, 1968,' and asking this Court pursuant to the abovecited § 16(d) of PERA, to 'issue an order which will effectively enforce the order of the labor mediation board dated December 5, 1968.'

By order of our Court, the Michigan Sheriffs Association was permitted to intervene and file an Amicus curiae brief.

One issue is presented herein. Did the sheriff's offer to reinstate deputy Sarles comply with the April 30 and June 6, 1968, orders of reinstatement to his former, or a substantially equivalent position?

The board asserts that it is the determiner of whether the job offered was the same or a substantially equivalent position and cites § 16(...