Central Michigan University Faculty Ass'n v. Central Michigan University, Docket No. 59753

• Decision Date: 28 December 1978
• Docket Number: Docket No. 59753,No. 3,3
• Citation: 273 N.W.2d 21,404 Mich. 268
• Parties: , 100 L.R.R.M. (BNA) 2401 CENTRAL MICHIGAN UNIVERSITY FACULTY ASSOCIATION, Charging Party-Appellant, v. CENTRAL MICHIGAN UNIVERSITY, Respondent-Appellee. Calendar
• Court: Michigan Supreme Court

Page 21

273 N.W.2d 21

404 Mich. 268, 100 L.R.R.M. (BNA) 2401

CENTRAL MICHIGAN UNIVERSITY FACULTY ASSOCIATION, Charging

Party-Appellant, v. CENTRAL MICHIGAN UNIVERSITY, Respondent-Appellee.

Docket No. 59753.

Calendar No. 3.

Supreme Court of Michigan.

Argued May 2, 1978.

Decided Dec. 28, 1978.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., Detroit, on brief, for appellee Michigan Employment Relations Commission.

J. David Kerr, Mount Pleasant, University Counsel, Central Michigan University, Clary, Nantz, Wood & Van Orden by Robert W. White, Grand Rapids, for respondent-appellee.

J. Douglas Korney, Gregory, Van Lopik & Korney, Detroit, for the Detroit Police Officers Association.

MOODY, Justice.

On April 30, 1973, the academic senate of Central Michigan University passed a resolution adopting a teaching effectiveness program which provided that students, as well as department faculty, evaluate the faculty members. Although the form of and weight to be given the student evaluations in department recommendations were not specified, the program did provide that "(d)epartmental recommendations for reappointment, promotion and tenure should be accompanied by evidence of teaching effectiveness".

On January 28, 1974, the Central Michigan University Faculty Association charged the university with an unfair labor practice. The faculty association claimed that Section I of the teaching effectiveness program was a mandatory subject of collective bargaining and, therefore, it was impermissible for the university to unilaterally adopt the program.

Administrative Law Judge Shlomo Sperka upheld the faculty association's unfair labor practice charge, finding that the university had violated § 10 of the Public Employment Relations Act (hereinafter PERA) by unilaterally adopting and implementing the teaching effectiveness program without bargaining with the exclusive, certified collective bargaining agent of its faculty.

The university appealed to the Michigan Employment Relations Commission (hereinafter MERC). In a split decision, the 2-member majority reversed Judge Sperka's decision and dismissed the unfair labor practice charge. After discussing the difference between institutions of higher learning and other public employers as related to the scope of bargaining, the MERC majority found the program in question to be predominantly a matter of educational policy and not mandatorily negotiable. MERC reasoned that since Central Michigan University derives its existence from constitutional authority, § 15 of the PERA does not have full application when applied to university employees. Const.1963, art. 8, § 6.

The Court of Appeals, over the dissent of the Honorable Michael F. Cavanagh, upheld the MERC decision. 75 Mich.App. 101, 254 N.W.2d 802 (1977). We granted leave to appeal. 401 Mich. 831 (1977).

I

The issue on this appeal is whether the elements, procedures and criteria involving evaluations for purposes of reappointment, retention and promotion are "other terms and conditions of employment" within the meaning of the PERA. The crux of this issue is the question whether the nature of the public employment alters the scope of mandatory bargaining.

It is well settled that Michigan's institutions of higher education are public employers subject to the provisions of the PERA. Board of Control of Eastern Michigan University v. Labor Mediation Board, 384 Mich. 561, 184 N.W.2d 921 (1971); Regents of the University of Michigan v. Employment Relations Comm., 389 Mich. 96, 204 N.W.2d 218 (1973). The duty of a public employer to bargain collectively with the employees' representative is set forth in § 15 of the PERA, patterned after § 8(d) of the National Labor Relations Act ¹ (hereinafter NLRA). Section 15 provides, in relevant part:

"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." M.C.L. § 423.215; M.S.A § 17.455(15).

In both the PERA and the NLRA, the collective bargaining obligation is defined as the mutual duty of labor and management to bargain in good faith with respect to "wages, hours, and other terms and conditions of employment". The subjects included within the phrase "wages, hours, and other terms and conditions of employment" are referred to as "mandatory subjects" of bargaining. Once a specific subject has been classified as a mandatory subject of bargaining, the parties are required to bargain concerning the subject, and neither party may take unilateral action on the subject absent an impasse in negotiations. See generally Morris, ed., The Developing Labor Law, (Washington, D. C.: Bureau of National Affairs, Inc., 1971) chs. 14-16; National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, 6 A.L.R.3d 1130 (1964).

The United States Supreme Court has concluded that one of the primary purposes of the NLRA is labor relations peace and that this objective can best be achieved by adopting a liberal approach to what constitutes a mandatory subject of bargaining. See, for example, Fibreboard Paper Products, supra. Following the Federal courts' approach, Michigan has adopted a broad view of "other terms and conditions of employment". See, for example, Van Buren Public School Dist. v. Wayne Circuit Judge, 61 Mich.App. 6, 232 N.W.2d 278 (1975).

In Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 55, 214 N.W.2d 803, 809 (1974), this Court looked to the private sector for examples of mandatory subjects of collective bargaining and found:

"(S)uch subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, no-strike clauses, profit sharing plans, rental of company houses, grievance procedures, sick leave, work-rules, Seniority and promotion, compulsory retirement age, and management rights clauses, Are examples of Mandatory subjects of bargaining." (Emphasis added.)

Furthermore, after looking to Federal precedent, the Court of Appeals recently held that the subject of promotional standards and the criteria for those standards are mandatory subjects of collective bargaining. See Detroit Police Officers Ass'n v. Detroit, 61 Mich.App. 487, 233 N.W.2d 49 (1975), Lv. den. 395 Mich. 756 (1975).

In the instant case we are asked whether the elements, procedures and criteria involving evaluations for purposes of reappointment, retention and promotion are "other terms and conditions of employment". M.C.L. § 423.215; M.S.A. § 17.455(15). We conclude that reappointment, retention and promotion criteria are "other terms and conditions of employment" and are a mandatory subject of collective bargaining.

II

Having reached this conclusion, we must now address the critical question whether the nature of the public employment alters the scope of the collective bargaining obligation of particular public employers. The university makes essentially a two-fold argument for excluding the procedures and criteria for reappointment, retention and promotion from the mandatory subject category to which they would otherwise belong. First, the university maintains that the unique status accorded the state universities by constitutional and statutory authority ² justifies excluding the subject of promotion and retention evaluation criteria from the scope of the mandatory bargaining obligation.

This argument, that specific public employer should be insulated from the collective bargaining obligation of the PERA because of constitutional and statutory grants of authority, was recently advanced in Pontiac Police Officers Ass'n v. Pontiac, 397 Mich. 674, 246 N.W.2d 831 (1976). In that case, the municipality of Pontiac argued that to require bargaining concerning grievance and arbitration procedures would interfere with the constitutional and statutory powers ³ vested in home-rule cities. Although three separate opinions were written in that case, all the justices taking part in the decision agreed that the public employer's duty to bargain collectively pursuant to the PERA prevails over conflicting provisions of the charter of a home-rule city.

Therefore, we have previously held that the PERA was intended by the Legislature to supersede conflicting laws and is superimposed even on those institutions which derive their powers from the constitution itself. The Legislature in adopting the very words of the NLRA chose to adopt the industrial model for public sector collective bargaining. In decreeing that "wages, hours and other terms and conditions of employment" are mandatory subjects of collective bargaining, the Legislature focused on the effect a particular aspect of the employment relationship has on the Employees' status, not the effect it has on the "business", I. e., the effect on educational policies. The statutory test of the PERA is whether the particular aspect of the employment relationship is a "term or condition of employment". Under the act, a particular aspect of the employment relationship is a mandatory subject of collective bargaining, even if it may be said to be only minimally a condition of employment.

As stated in Justice Levin's opinion in Pontiac Police Officers Ass'n, supra:

"If the Legislature deems it appropriate to redefine the scope of the collective bargaining obligation of the public employers...