Amalgamated Transit Union, Local 1564, AFL-CIO v. Southeastern Michigan Transp. Authority

• Decision Date: 15 July 1991
• Docket Number: No. 85589,AFL-CI,P,85589
• Parties: , 137 L.R.R.M. (BNA) 2904 AMALGAMATED TRANSIT UNION, LOCAL 1564,laintiff-Appellee, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 249

473 N.W.2d 249

437 Mich. 441, 137 L.R.R.M. (BNA) 2904

AMALGAMATED TRANSIT UNION, LOCAL 1564, AFL-CIO, Plaintiff-Appellee, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY, Defendant-Appellant.

No. 85589.

Supreme Court of Michigan.

Argued Oct. 2, 1990.

Decided July 15, 1991.

Theodore Sachs, I. Mark Steckloff, Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C., Detroit, for plaintiff-appellee.

John Corbett O'Meara, Thomas G. Kienbaum, Theodore R. Opperwall, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, for defendant-appellant.

BOYLE, Justice.

This action arises under M.C.L. Sec. 423.210(1)(e); M.S.A. Sec. 17.455(10)(1)(e) of the public employment relations act. Amalgamated Transit Union has charged that the Southeastern Michigan Transit Authority (now the Suburban Mobility Authority for Regional Transportation) committed an unfair labor practice by unilaterally altering a term or condition of employment, specifically the disciplinary scheme applicable to probationary employees. We affirm the decision of the Court of Appeals, which upheld the conclusion of the Michigan Employment Relations Commission that SEMTA did engage in an unfair labor practice by unilaterally altering the disciplinary policy it applied to probationary employees.

I

In 1975, the parties drew up a letter of understanding specifying penalties for an operator's failure to appear for work at the scheduled time and place. This letter was substantially incorporated in the 1977 contract between the parties as article 37, Sec. 1, providing a seven-step "Miss-Outs" procedure. ¹

The 1977 contract also contained the following provision regarding probationary employees:

"All new OPERATORS coming within the scope of this Agreement shall be on probation for a period of ninety (90) calendar days from the date they complete their training requirements. Such probationary period shall constitute a trial period during which the AUTHORITY judges the ability, competency, fitness, and other qualifications of new OPERATORS to do the work for which they were employed....

"During such probationary period, the AUTHORITY may discharge the OPERATOR at any time and its right to do so shall not be questioned by the UNION; nor shall the UNION assert or present any grievance on behalf of any such new OPERATOR."

The above provisions of article 6 of the 1977 contract were also contained in the 1974-77 contract between the parties; however, the earlier contract provided that both the union and SEMTA were to judge the qualifications and fitness of probationary employees. ²

The evidence presented at the hearing in this matter showed that SEMTA generally applied the provisions of article 37-1 to probationary employees. In July or August of 1979, SEMTA altered this practice and began applying a new "miss" policy to probationary employees. Union officers met with members of SEMTA management to protest this change. On August 15, 1979, SEMTA posted the new policy whereby probationary employees would be automatically terminated from employment after only four misses.

The union filed the instant unfair labor practice charge on February 12, 1980. Upon a motion by SEMTA, the MERC stayed its proceedings pending the conclusion of the arbitration proceedings.

After considering the terms of the contract as well as the practices of the parties, the arbitrator initially found that article 37-1 of the 1977-80 collective bargaining agreement, specifying a seven-step disciplinary scheme for "misses," did apply to probationary employees, and "that [article] 6-2 does not prevent the Union from questioning disciplinary action, including discharge, by SEMTA of probationary employees for engaging in miss-outs, or the presentation of grievances by the Union on behalf of such operators in such circumstances."

On appeal, the circuit court again examined the contract, particularly articles 6 and 37, and concluded that the miss policy applicable to probationary employees was not subject to arbitration. The court's analysis turned on the article 6 provision that SEMTA was to judge the "ability, competency, fitness, and other qualifications" of probationary employees. Any contract provision relating to the "ability, competency, fitness, and other qualifications" of probationary employees, the court concluded, was not subject to arbitration. ³ The court found that misses--failure to appear at the scheduled time and place--related to the qualifications of probationary employees. The court thus found that the arbitrator lacked jurisdiction and granted summary disposition in favor of SEMTA.

The Court of Appeals affirmed the decision of the circuit court on somewhat different grounds. Relying on the language of article 6-2 and article 10-1, the Court of Appeals concluded that the contract dispute was not arbitrable:

"Article 6, Sec. 2 of the collective-bargaining agreement between plaintiff and defendant states that the union will not assert or present any grievance on behalf of any probationary employee. Article 10, Sec. 1 of the agreement defines a grievance as any matter involving the interpretation or application of the terms of the agreement and any dispute concerning the suspension or discharge of an employee. Under these articles, defendant is prohibited from bringing a grievance to arbitration if it concerns a probationary employee. Because defendant was prohibited from bringing the grievance to arbitration by a specific clause of the collective bargaining agreement, we can say with positive assurance that the arbitration clause did not cover this agreement." 116 Mich.App. 154, 158, 321 N.W.2d 876 (1982).

The union did not appeal the Court of Appeals determination.

With arbitration thus concluded, the MERC proceedings relating to the union's unfair labor practice charges resumed. In a decision and recommended order, the hearing referee rejected SEMTA's argument that the circuit court's order granting SEMTA summary disposition was res judicata regarding the matters raised in the unfair labor practices charge. The hearing officer reasoned that since the instant charge alleged statutory issues and not merely a contract violation, it raised issues which were not and could not have been resolved in the arbitration proceedings. She concluded next that the application of the miss policy contained in article 37 of the parties' collective bargaining agreement to probationary employees became a term or condition of employment which could not be altered unilaterally. The hearing officer viewed the crux of the dispute as being whether article 6, Sec. 2 of the collective bargaining agreement waived the union's right to bargain over changes in the disciplinary policy applicable to probationary employees and concluded that the union did not waive such right.

The Michigan Employment Relations Commission affirmed the decision of the hearing officer. 1987 MERC Lab Op 721. The MERC agreed that SEMTA's consistent application of the seven-step miss procedure set forth in article 37-1 had rendered the procedure a term or condition of employment for probationary employees. The MERC cast the waiver question as "whether [SEMTA's] practice should be regarded as subservient to Article 6, and the duty to bargain over changes in the practice waived, or whether the existence of the practice served to limit the grant of broad discretion contained in Article 6 to the extent of requiring [SEMTA] to give notice to and bargain with [the union] before changing this policy." Id. at 730. The MERC concluded that the latter was the case, emphasizing the stringent standard applied to the waiver of statutory rights. The MERC also rejected SEMTA's argument that the prior circuit court and the Court of Appeals determinations in the arbitration proceedings estopped consideration of the union's charge of unfair labor practices.

The Court of Appeals affirmed the commission's decision, Amalgamated Transit Union v. Southeastern Michigan Transportation Authority, unpublished opinion per curiam of the Court of Appeals, decided February 10, 1989 (Docket No. 103428). This Court granted leave to appeal in an order issued April 16, 1990. 434 Mich. 900 (1990). Appellant has raised three issues for this Court's consideration: 1) whether the doctrine of collateral estoppel precludes the union from asserting the instant unfair labor practice charge, 2) whether the MERC erred when it concluded that the seven-step miss procedure had become a term or condition of employment for probationary employees, and 3) whether the MERC erred in finding that the union did not waive its statutory right to bargain over such term or condition of employment.

II

The PERA imposes a duty to negotiate in good faith over mandatory subjects of bargaining which persists during the life of the collective bargaining agreement. M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15). ⁴ Thus, while the parties may by contract agree to grant the right to take unilateral action, it is well established that neither party may take unilateral action on such a subject unless it either has satisfied the statutory obligation or has been freed from it. NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967).

Our review of the commission's decision is circumscribed by the statutory mandate that factual findings of the commission are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. M.C.L. Sec. 423.216(e); M.S.A. Sec. 17.455(16)(e), Const. 1963, art. 6, Sec. 28. Review of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency's choice between two reasonably differing views of the evidence. MERC v. Detroit Symphony Orchestra, 393 Mich. 116, 124, 223 N.W.2d 283 (1974)...