City of Grand Rapids v. Grand Rapids Employees Independent Union
| Decision Date | 27 July 1999 |
| Docket Number | Docket No. 204825. |
| Citation | 597 N.W.2d 284,235 Mich. App. 398 |
| Parties | CITY OF GRAND RAPIDS and Grand Rapids Housing Commission, Respondents-Appellees, v. Grand Rapids Employees Association of Public Administrators, Charging Party, and GRAND RAPIDS EMPLOYEES INDEPENDENT UNION, Charging Party-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Kalniz, Iorio & Feldstein Co, L.P.A. (by Ted Iorio), Grand Rapids, for Grand Rapids Employees Independent Union.
Varnum, Riddering, Schmidt & Howlett LLP (by John Patrick White and Mary C. Bonnema), Grand Rapids, for City of Grand Rapids.
Rhoades, McKee, Boer, Goodrich & Titta (by Mary Ann Cartwright), Grand Rapids, for Grand Rapids Housing Commission.
Miller, Canfield, Paddock and Stone, P.L.C. (by John H. Willems, Jay B. Rising, and Philip B. Phillips), Detroit, for Michigan Chapter of the National Association of Housing and Redevelopment Officials.
Before: WHITBECK, P.J., and MARK J. CAVANAGH and NEFF, JJ.
Grand Rapids Employees Independent Union (GREIU) appeals as of right from the Michigan Employment Relations Commission's (MERC) dismissal of its charges of unfair labor practices. We affirm.
The Grand Rapids Housing Commission is a creature of statute. M.C.L. § 125.651 et seq.; M.S.A. § 5.3011 et seq. Its powers and duties are statutorily determined and it has the authority to enter contracts necessary to effectuate them. M.C.L. § 125.654; M.S.A. § 5.3014, M.C.L. § 125.657; M.S.A. § 5.3017. The act was substantially amended in 1996 and it was those amendments that precipitated the actions that are the subject of this appeal.
On June 2, 1966, the City of Grand Rapids and the housing commission entered into an agreement by which Grand Rapids provided stenographic, technical, and administrative services to the housing commission, for which the housing commission reimbursed Grand Rapids. The services were performed by employees provided by Grand Rapids and the employees were members of GREIU and the Grand Rapids Employees Association of Public Administrators (GREAPA),1 which negotiated collective bargaining agreements (CBA) with Grand Rapids. Either Grand Rapids or the housing commission could terminate the agreement by giving sixty days' notice.
The federal government was a major source of housing commission funding; the housing commission did not receive any general funds from Grand Rapids. The housing commission was responsible for its own budget, which was approved by the federal Department of Housing and Urban Development. Grand Rapids had no say in or control over the funds received by the housing commission.
The contract between Grand Rapids and the housing commission for providing services continued until 1996 when the housing commission notified Grand Rapids of its intent to terminate the agreement as of the close of business on June 30, 1996. Therefore, as of July 1, 1996, the housing commission would take all its contracted services in-house and become the employer of record for its employees. The Grand Rapids employees-union members could continue to work for the housing commission as housing commission employees in a nonunion setting, and the housing commission issued employee manuals that purported to represent the terms and conditions of employment for the employees at the housing commission.
On June 24, 1996, unfair labor practice charges were filed by GREIU and GREAPA against Grand Rapids and the housing commission. Both unions charged that Grand Rapids had repudiated the terms of the CBA between itself and the unions when it stated that the housing commission was a separate employer, and that the union members were no longer covered by the CBAs they had negotiated with Grand Rapids.
GREIU argued that Grand Rapids and the housing commission were coemployers, and therefore the CBA applied to both Grand Rapids and the housing commission. GREIU also asserted that it was a breach of the CBA for the housing commission to unilaterally impose new terms and conditions of employment on the housing commission employees.
After a hearing was held and briefs were filed by the parties, the hearing referee issued a decision and recommended order. The hearing referee concluded that the housing commission and Grand Rapids were not coemployers, provided that Grand Rapids passed a proposed ordinance that authorized the housing commission to provide for the selection and payment of its employees. The hearing referee also concluded that the housing commission had not abrogated the CBAs because it was not a party to the agreements between Grand Rapids and GREIU and GREAPA. Therefore, the hearing referee recommended that the unfair labor practice charges be dismissed. The MERC adopted the recommendation of the hearing referee, and this appeal followed.
GREIU argues that the MERC erred in concluding that the housing commission and Grand Rapids were separate employers, not coemployers. We disagree.
Our review of the MERC's decision is limited. Organization of School Administrators & Supervisors, AFSA, AFL-CIO v. Detroit Bd. of Ed., 229 Mich.App. 54, 64, 580 N.W.2d 905 (1998). The MERC's factual findings are deemed conclusive if they are supported by competent, material, and substantial evidence on the whole record. Id. The MERC's legal rulings are afforded a lesser degree of deference and will be set aside "`if they are in violation of the constitution or a statute, or affected by a substantial and material error of law.'" Port Huron Ed. Ass'n v. Port Huron Area School Dist., 452 Mich. 309, 323, 550 N.W.2d 228 (1996) (citations omitted).
GREIU claims that the MERC erred in concluding that the 1996 amendments of M.C.L. § 125.655(3); M.S.A. § 5.3015(3) allowed the housing commission to become the employer of record, independent and separate from Grand Rapids. We disagree.
In general, the characteristics of employers are as follows:
1) that they select and engage the employee; 2) that they pay the wages; 3) that they have the power of dismissal;
4) that they have the power and control over the employee's conduct. [Michigan Council 25, AFSCME v. St. Clair Co., 136 Mich.App. 721, 736, 357 N.W.2d 750 (1984), rev'd in part on other grounds 425 Mich. 204, 233, 388 N.W.2d 231 (1986) (citation omitted).]
"A most significant requisite of one who is an employer is his right to exercise control over the method by which the employee carries out his work." Wayne Co. Civil Service Comm. v. Wayne Co. Bd. of Supervisors, 22 Mich.App. 287, 294, 177 N.W.2d 449 (1970), rev'd in part on other grounds 384 Mich. 363, 184 N.W.2d 201 (1971).
These characteristics of an employer must be viewed in light of the powers granted to housing commissions in the relevant statutes.
Before its amendment by 1996 P.A. 338, M.C.L. § 125.655(3); M.S.A. § 5.3015(3) provided:
A president and vice-president shall be elected by the commission. The commission may appoint a director who may also serve as secretary, and other employees or officers as are necessary. The commission shall prescribe the duties of its officers and employees and, with the approval of the appointing authority, may fix their compensation. The commission may employ engineers, architects, and consultants, when necessary. [Emphasis added.]
Under this provision, housing commissions did not have the authority to fix the compensation of its employees without approval of the appointing authority. As correctly noted by the MERC, in the absence of this authority a housing commission was not a separate employer, but rather a coemployer, with the incorporating unit.
As amended in 1996, M.C.L. § 125.655(3); M.S.A. § 5.3015(3) now provides as follows:
A president and vice-president and other officers designated by the commission shall be elected by the commission. The commission may employ and fix the compensation of a director, who may also serve as secretary, and other employees as necessary. Upon the recommendation of the appointing authority, the governing body of an incorporating unit may adopt a resolution either conditioning the establishment of any compensation of an officer or employee of a commission upon the approval of the governing body or establishing compensation ranges and classifications to be used by a commission in fixing the compensation of its officers and employees. The commission shall prescribe the duties of its officers and employees and shall transfer to its officers and director those functions and that authority which the commission has prescribed. The commission may employ engineers, architects, attorneys, accountants, and other professional consultants when necessary. [Emphasis added.]
We reject GREIU's argument that the 1996 amendments "made minor nonsubstantive corrections, and clarified the existing language." Clearly, the amendments reflect a substantive change: in the absence of a city resolution to the contrary, housing commissions are now permitted to fix the compensation of their employees.2
In the present case, as provided for in the current version of M.C.L. § 125.655(3); M.S.A. § 5.3015(3), Grand Rapids has passed an ordinance concerning selection and payment of the housing commission's employees. This ordinance, passed in August, 1997, states:
The Grand Rapids Housing Commission may appoint a Director who may also serve as Secretary, and other employees or officers as are necessary. The Grand Rapids Housing Commission shall prescribe the duties of its officers and employees and shall have the sole authority to fix their compensation and fringe benefits, and terms and conditions of employment. [Grand Rapids Ordinance, Chapter 8, Article 5, § 1.356.]
Relying on the statutory interpretation maxim of "Expressio unius est exclusio alterius," which means that the expression of one thing is the exclusion of another, GREIU argues that because the ordinance does not explicitly so...
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