Central Michigan University Faculty Ass'n v. Central Michigan University

• Decision Date: 19 April 1977
• Docket Number: Docket No. 27549
• Parties: , 95 L.R.R.M. (BNA) 2294, 81 Lab.Cas. P 55,040 CENTRAL MICHIGAN UNIVERSITY FACULTY ASSOCIATION, Plaintiff-Appellant, v. CENTRAL MICHIGAN UNIVERSITY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 802

254 N.W.2d 802

75 Mich.App. 101, 95 L.R.R.M. (BNA) 2294,

81 Lab.Cas. P 55,040

CENTRAL MICHIGAN UNIVERSITY FACULTY ASSOCIATION, Plaintiff-Appellant, v. CENTRAL MICHIGAN UNIVERSITY, Defendant-Appellee.

Docket No. 27549.

Court of Appeals of Michigan.

April 19, 1977.

Released for Publication June 28, 1977.

Foster, Swift & Collins, P.C., by James A. White, Lansing, for plaintiff-appellant.

J. David Kerr, Mount Pleasant, for defendant-appellee.

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

Before CAVANAGH, P. J., and MAHER and BEASLEY, JJ.

BEASLEY, Judge.

This case comes before this Court on leave granted to plaintiff-appellant, Central Michigan University Faculty Association, herein referred to as the association, to appeal a decision by the Michigan Employment Relations Commission, herein referred to as MERC.

In 1977, defendant-appellee, Central Michigan University, herein referred to as the university, is an established state institution of higher education with a student enrollment exceeding 15,000 and is governed by a Board of Trustees whose members are appointed by the Governor. Const.1963, art. 8, § 6; M.C.L.A. § 390.551; M.S.A. § 15.1120(1).

The association is the bargaining representative for the university faculty and is a party to the collective bargaining agreement with the university which, for purposes of this case, covered the period from May 21, 1971 through June 30, 1974. Under the agreement, the association is the collective bargaining agent with respect to wages, hours and other terms and conditions of employment.

On April 30, 1973, the academic senate of the university passed a resolution putting into effect a teaching effectiveness program which gave rise to this controversy. The academic senate consists primarily of faculty members, although there are a few administrators and students. As is customary with Michigan's major institutions of higher learning, much policy originates with the faculty by way of the academic senate and finds its way to the governing body. On August 15, 1973, the university's Board of Trustees adopted the teaching effectiveness program and its implementing provisions. The implementing recommendations for the university departments are as follows:

"a. Each academic department should establish, not later than one year after the approval of this recommendation, a systematic program for (a) evaluating and (b) improving teaching effectiveness of every faculty member in the department.

"b. All faculty members of the department should participate in determining the instruments and procedures involved in the evaluative process.

"c. Students as well as departmental faculty should evaluate the faculty of said department.

"d. Information obtained about an individual faculty member should be made available to that individual faculty member and to those individuals having the responsibility of making recommendations and/or decisions regarding reappointment, merit pay, tenure, and promotion.

"e. Departmental recommendations for reappointment, promotion and tenure should be accompanied by evidence of teaching effectiveness. This is not to limit the accompanying evidence to data on teaching effectiveness." (Emphasis added.)

On January 28, 1974, the association charged the university with an Unfair Labor Practice under Section 10 of the Public Employment Relations Act, herein referred to as PERA. M.C.L.A. § 423.210(1)(e); M.S.A. § 17.455(10)(1)(e). Among other things, the association claims that the teaching effectiveness program is a mandatory subject of collective bargaining and that, therefore, under the collective bargaining agreement, its unilateral adoption by the university without collective bargaining is an Unfair Labor Practice.

Hearing was held before an administrative law judge who recommended that the university was guilty of an Unfair Labor Practice under Section 10 by unilaterally adopting and implementing the teaching effectiveness program without bargaining with its exclusive certified collective bargaining agent, namely, the association.

Defendant university then appealed to MERC which rejected the recommendation of the administrative law judge and dismissed the Unfair Labor Practice charge. From that decision, the association now appeals.

Appeals from MERC are controlled by both the constitution and applicable statutes. Article VI, Section 28 of the Constitution provides:

"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record." Const.1963, art. 6, § 28, also, Regents of the University of Michigan v. Employment Relations Commission, 389 Mich. 96, 204 N.W.2d 218 (1973).

The Administrative Procedures Act provides in part as follows:

"Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute.

"(d) Not supported by competent, material and substantial evidence on the whole record." M.C.L.A. § 24.306; M.S.A. § 3.560(206).

In addition, Section 16(e) of PERA provides:

"Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeals * * *. The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive." M.C.L.A. § 423.216(e); M.S.A. § 17.455(16)(e).

Consequently, our review is two-fold. First, is MERC's decision supported by competent, material and substantial evidence on the whole record, and second, is MERC's decision contrary to the constitution or statute?

At issue here is MERC's decision and order. Prior to decision, MERC received a detailed recommendation from the administrative law judge who presided over the lengthy hearings relative to plaintiff's charge of an Unfair Labor Practice. After careful consideration of that recommendation, on January 30, 1976, MERC rendered its decision and order accompanied by a dissent.

The gist of MERC's ruling is as follows:

"Consistent with the holdings in other jurisdictions and based on the record as a whole, we find that the documentation of teaching effectiveness is predominantly a matter of educational policy not mandatorily negotiable."

MERC's ruling provided further that:

"This opinion should not be interpreted as meaning that there are no limitations on procedures with respect to tenure, reappointment, promotion and movement of personnel which may be adopted by the governing board of an institution of higher learning. The rule of reasonableness, as in all labor relations relationships, applies. The evidence establishes that Section 1 of the 'Teaching Effectiveness Implementing Recommendations' document is a reasonable exercise by the Board of Trustees of its constitutional and statutory powers.

"In addition, the Association is vested with the privilege to bargain over the impact or effect of the Board's unilateral action. * * *

"Whether a particular rule, policy or procedure or the impact of (sic ) effect of unilateral action, is reasonable may be tested through court action or through the grievance and arbitration provisions of a collective bargaining agreement."

MERC then proceeded to dismiss plaintiff's charge of an Unfair Labor Practice. MERC's decision is based upon findings that can only be characterized as mixed findings of law and fact.

In the Detroit Symphony Orchestra ¹ case, Justice Fitzgerald traces and carefully reviews the history regarding appellate review of MERC board findings of fact. He says:

"What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record that is, both sides of the record not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review. MERC v. Detroit Symphony Orchestra, Inc., 393 Mich. 116 at 124, 223 N.W.2d 283 at 288.

In the Detroit Symphony Orchestra case the Court went on to affirm the Court of Appeals decision that held MERC's findings of fact to be speculative and not supported by substantial evidence. In that connection, the Court said:

"Our reading of the cold record indicates that the finding of the trial examiner is more plausible than the finding of the Board. Given this reading, are we to ignore the determination as to credibility of the only decision-maker to hear testimony firsthand and, in effect, credit the contrary determination of the Board? We think not. The findings of the trial examiner are a part of the record we are entitled to consider in exercising our review power." MERC v. Detroit...