Bullock v. Automobile Club of Michigan
Decision Date | 24 February 1986 |
Docket Number | Docket No. 71773 |
Citation | 381 N.W.2d 793,146 Mich.App. 711 |
Court | Court of Appeal of Michigan — District of US |
Parties | William J. BULLOCK, Plaintiff-Appellee, v. AUTOMOBILE CLUB OF MICHIGAN, a/k/a AAA, and Auto Club Insurance Association, a Michigan corporation, Defendants-Appellants. 146 Mich.App. 711, 381 N.W.2d 793, 104 Lab.Cas. P 55,594 |
[146 MICHAPP 713] Law Offices of John W. Mason, P.C. by John W. Mason and Mary Taylor Zick, Dearborn, for plaintiff-appellee.
Finkel, Whitefield & Selik by Robert J. Finkel, Southfield, and Kalvin M. Grove and Steven L. Gillman, Chicago, Ill., for defendants-appellants.
Before HOOD, P.J., and BRONSON and TAHVONEN *, JJ.
Defendants appeal by leave granted from an order of the Wayne County Circuit Court denying defendants' motion for accelerated and/or summary judgment.
In May of 1968, plaintiff was hired by defendants as a commission salesperson. At that time, the sales representatives were not members of any union. On February 7, 1978, the Michigan Sales Association (union) was certified as the exclusive bargaining representative for defendant's commission salespersons.
Starting in October, 1980, the company and the union met at least 28 times in an effort to negotiate[146 MICHAPP 714] a collective bargaining agreement. The primary dispute throughout the negotiations centered around the implementation of mandatory production standards. Defendants insisted that the collective bargaining agreement contain scheduled minimum production standards, which the union vigorously resisted.
Defendants submitted a final offer to the union in July, 1981, which included the disputed minimum production standards. At a general membership meeting held on August 5, 1981, the union voted to reject the company's final offer, resulting in an impasse.
On September 1, 1981, defendants implemented the production standards which were in its final offer. Under these standards, if a sales representative failed to meet a predetermined production standard during any particular month, the representative received an oral warning and, in subsequent months, a written warning, probation, and termination or demotion if the representative failed to fulfill the standards for four successive months.
On October 8, 1981, defendants and the union resumed negotiations and held ten additional negotiating sessions without reaching an agreement. Negotiations broke off on January 4, 1982, reconvened on February 24, 1982, and no further meetings were held after March 18, 1982. In October, 1982, the union was decertified.
In the meantime, on February 19, 1982, defendants notified plaintiff that his employment as a commission sales representative would be terminated as of February 28, 1982, for failure to fulfill the requisite production standard. Defendants offered and plaintiff accepted a lower paying position as a salaried member advisor.
Subsequently, on July, 1982, plaintiff filed the [146 MICHAPP 715] action at bar in Wayne County Circuit Court alleging breach of an employment contract, relying on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), reh. den. 409 Mich. 1101 (1980). According to plaintiff, when he was hired in 1968, defendants made certain promises and representations to him, including: (1) that he would have a lifetime job as long as he did not steal; (2) that he would be employed as a sales representative and earn a 7% commission for his sales, a method of compensation which had been in effect for many years; and (3) if he worked hard to build up his "book of business", which consists of accumulated policies and memberships that a commission salesperson builds up over the years, he could enjoy his later working years by realizing those commissions.
According to plaintiff, his demotion, which was allegedly predicated on his failure to meet the production standards, and the implementation of a unit compensation program in place of the commission compensation, violated this pre-existing contract.
On August 10, 1982, defendants filed a petition for removal to federal court on the basis that plaintiff's cause of action was governed exclusively by the National Labor Relations Act and depended entirely on federal law. Once in federal court, defendants filed a motion to dismiss alleging that the National Labor Relations Board (NLRB) had exclusive jurisdiction over plaintiff's claim and that the United States District Court lacked subject matter jurisdiction. Plaintiff filed a motion to remand to the circuit court on August 30, 1982, pointing out the inconsistent positions taken by defendants in circuit court and in federal court. Federal District Court Judge Anna Diggs Taylor heard oral arguments on October 25, 1982, and [146 MICHAPP 716] remanded the case to Wayne County Circuit Court on November 1, 1982.
In Wayne County Circuit Court, on November 16, 1982, defendants filed a motion for accelerated or, in the alternative, summary judgment. On February 16, 1983, before the hearing on this motion, plaintiff filed a first amended complaint which added counts for age discrimination, unjust enrichment, conversion and negligent evaluation. Two days later, the trial court heard the parties' arguments concerning accelerated and summary judgment and denied defendants' motion, from which defendants appeal.
Defendants first argue that the trial court erred in refusing to dismiss plaintiff's action because Toussaint expressly permits an employer to unilaterally change its employment policies so long as the employees are notified of the changes and the new policies are applied fairly, consistently and uniformly. We disagree that this is the holding of Toussaint.
For their argument, defendants rely on the following language in Toussaint:
* * *
"We hold that employer statements of policy, such as the Blue Cross Supervisory Manual and Guidelines, can give rise to contractual rights in employees without evidence that the parties mutually agreed that the policy statements would create contractual rights in the employee, and, hence, although the statement of policy is signed by neither party, can be unilaterally amended by the employer without notice to the employee, and contains no reference to a specific employee, his job description or compensation, and although no reference was made to the policy statement in pre-employment interviews and the employee does not learn of its existence until after his hiring." Id., pp 613-615, 292 N.W.2d 880. (Emphasis added, footnotes omitted.)
This holding must be construed in light of the factual context of Toussaint in order to be fairly understood.
Charles Toussaint was employed in a middle management position with Blue Cross. After he was employed for five years and discharged, he commenced an action against his former employer claiming that the discharge violated his employment agreement which permitted discharge only for cause. This action resulted in a jury verdict rendered for Toussaint in the amount of $72,835.52.
On appeal this Court reversed the jury verdict for Toussaint holding that "a contract for permanent employment or employment for life is a contract for an indefinite period and terminable at the will of either party" and "cannot be made other than terminable at will by a provision that states that an employee will not be discharged except for cause". (Emphasis supplied.) Toussaint v. [146 MICHAPP 718] Blue Cross & Blue Shield of Michigan, 79 Mich.App. 429, 434-435, 262 N.W.2d 848 (1977).
The questions thus presented to the Supreme Court were whether this Court had correctly stated the law and, if not, whether there was sufficient evidence presented to make submissible to the jury the question of whether there was an agreement for a contract of employment terminable only for cause. The Supreme Court resolved the first question and reversed the decision of this Court, holding that:
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