Clerical-Technical Union v. Michigan State University
| Decision Date | 20 October 1995 |
| Docket Number | 165835,Docket Nos. 165131,CLERICAL-TECHNICAL |
| Citation | 214 Mich.App. 42,542 N.W.2d 303 |
| Parties | , 152 L.R.R.M. (BNA) 2252, 106 Ed. Law Rep. 335 UNION of Michigan State University, Plaintiff-Appellant, v. MICHIGAN STATE UNIVERSITY Board of Trustees, Defendant-Appellee, and Michigan State University Administrative-Professional Association, MEA/NEA, Intervenor-Appellee.UNION of Michigan State University, Plaintiff-Appellant, v. MICHIGAN STATE UNIVERSITY, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Finkel, Whitefield & Selik, P.C. by Bradley T. Raymond, Farmington Hills, for Clerical-Technical Union of Michigan State University.
Sally S. Harwood, East Lansing, for Michigan State University Board of Trustees.
White, Beckman, Przybylowicz, Schneider & Baird, P.C. by James J. Chiodini, Okemos, for Michigan State University Administrative-Professional Association, MEA/NEA.
Before HOEKSTRA, P.J., and WAHLS and BUTH, * JJ.
The Clerical-Technical Union of Michigan State University appeals as of right from two decisions and orders of the Michigan Employment Relations Commission (MERC), which found that Michigan State University had committed an unfair labor practice but did not order restoration of the status quo ante. The MERC issued cease-and-desist orders but not orders for further remedial action. We have consolidated the two appeals for the purpose of this opinion. We reverse and remand.
Appellant represents a bargaining unit of clerical and technical employees of Michigan State University. The Michigan State University Administrative-Professional Association (APA), intervenor in Docket No. 165131, represents a bargaining unit of nonsupervisory administrative and professional employees. Supervisory employees are represented by a third bargaining unit that is not party to the proceedings involved here.
On September 22, 1983, appellant and MSU agreed to hire an outside consultant to conduct a jointly funded classification study. On January 30, 1986, the consulting firm's proposal for the study was accepted by both appellant and MSU. In August, 1987, the consulting firm issued its initial draft of the study, which reviewed four thousand employees of MSU.
On January 28, 1988, MSU wrote to appellant and stated that it was "accepting for potential implementation the new classification descriptions, individual placements, grade levels, and FLSA/bargaining unit determinations" of the consulting firm. In February 1988, appellant filed the unit clarification petition at issue in Docket No. 165131, asserting that the bargaining unit status of certain positions was in dispute. In November 1988, MSU sent notices to employees of changes in job title, grade level, and bargaining unit.
On December 27, 1988, appellant initiated the proceedings involved in Docket No. 165131, alleging that MSU had engaged in an unfair labor practice by unilaterally moving positions to a different bargaining unit on the basis of the study's recommendations. Later, appellant filed an amended charge against MSU, additionally alleging that the transfer constituted unlawful assistance to the APA. Hearing referee Bert H. Wicking recommended in Docket No. 165131 that the MERC dismiss the unfair labor practice charges and unit clarification petition.
On August 31, 1993, the MERC held that MSU had unlawfully removed positions from appellant's unit without appellant's agreement. The MERC issued a cease-and-desist order and ordered MSU to post a notice to employees that explained the unfair labor practice. The MERC dismissed appellant's unit clarification petition. The appeal in Docket No. 165131 followed.
Meanwhile, the position at issue in Docket No. 165835, Financial Aid Officer I (FAO I), was initially in the APA bargaining unit. However, pursuant to the classification study, the position was placed in appellant's unit in October 1988. In June 1989, the Financial Aid Department requested a reclassification of the FAO I position. The position was transferred back to the APA in August 1989.
On October 26, 1989, appellant filed an unfair labor practice charge against MSU in Docket No. 165835, alleging a failure to bargain. Later, appellant filed an amended charge in which it additionally alleged that MSU had unlawfully assisted the APA. On April 26, 1991, hearing referee James P. Kurtz issued his decision recommending that the MERC dismiss appellant's charge. On August 31, 1993, the MERC held that MSU's unilateral transfer of positions to a different unit was an unfair labor practice and ordered MSU to cease refusing to bargain. However, the MERC did not order further remedial action. The appeal in Docket No. 165835 followed.
Appellant argues that the MERC arbitrarily refused to grant remedies that would have restored the status quo ante. This Court will not disturb MERC remedies unless the MERC order is a "patent attempt to achieve ends other than those which can fairly be said to effectuate the policies" of the public employment relations act (PERA), M.C.L. § 423.201 et seq.; M.S.A. § 17.455(1) et seq. Crestwood Ed Ass'n v. Employment Relations Comm, 88 Mich.App. 409, 416, 276 N.W.2d 592 (1979). The MERC's power to order a remedy is "a broad discretionary one, subject to limited judicial review." Van Buren Public School Dist. v. Wayne Circuit Judge, 61 Mich.App. 6, 32-33, 232 N.W.2d 278 (1975).
The remedy for an unfair labor practice is statutorily provided as follows:
If upon the preponderance of the testimony taken the commission is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act. [M.C.L. § 423.216(b); M.S.A. § 17.455(16)(b).]
Under the terms of the statute, upon finding an unfair labor practice, the MERC must order the offender to cease and desist from the unfair labor practice. The statute does not explicitly state that the remedy must restore the status quo ante, but instead requires that the MERC take other action "as will effectuate the policies of [the PERA]."
Generally, the PERA authorizes the MERC to issue a cease-and-desist order without requiring further action. Crestwood Ed. Ass'n., supra, 88 Mich.App. at p. 418, 276 N.W.2d 592. In Crestwood, this Court indicated that, although it believed that a more stringent remedy was warranted, it was not this Court's role "to replace the remedy fashioned by MERC with one consistent with our own views." Id.
Appellant argues that the opposite result is required by Rockwell v. Crestwood School Dist. Bd. of Ed., 393 Mich. 616, 642, 227 N.W.2d 736 (1975), where the Court held that the MERC may not adopt an arbitrary policy of refusing to consider exercising its authority in matters falling within its jurisdiction. However, in that case, the MERC responded to the union's request to seek immediate relief with a response that it was "the consistent policy of this Commission to refrain from petitioning for temporary relief or a restraining order." Id. In this case, there is no comparable policy. As amply cited in appellant's briefs on appeal, the MERC has used its authority in the past to order other remedies.
The same result is true under federal law. In construing the PERA, both the MERC and Michigan courts have frequently been guided by the construction placed on the analogous provisions of the National Labor Relations Act (NLRA), 29 U.S.C. § 141 et seq. Rockwell, supra, 393 Mich. p. 636, 227 N.W.2d 736; Detroit Fire Fighters Ass'n v. Detroit, 96 Mich.App. 543, 545, 294 N.W.2d 842 (1980). The provision of the PERA at issue here, M.C.L. § 423.216(b); M.S.A. 17.455(16)(b), is taken almost verbatim from the NLRA, 29 U.S.C. § 160(c).
Appellant argues that both the Sixth Circuit Court of Appeals and the District of Columbia Circuit Court of Appeals have rejected analogous claims that the National Labor Relations Board (NLRB) possesses discretion to refuse to remedy unfair labor practices after finding that they have been committed. However, the cases cited by appellant stand for the proposition that the NLRB must issue a cease-and-desist order, not that it must order other action as well. UAW v. NLRB, 427 F.2d 1330, 1334 (C.A. 6, 1970); Int'l Woodworkers v. NLRB, 127 U.S.App.D.C. 81, 380 F.2d 628 (1967); see also Eichleay Corp. v. NLRB, 206 F.2d 799, 805 (C.A. 3, 1953). The MERC has complied with that requirement here. Indeed, the United States Supreme Court has affirmed the enforcement of an NLRB decision to issue a cease-and-desist order, but not to order reimbursement. Shepard v. NLRB, 459 U.S. 344, 349, 103 S.Ct. 665, 668, 74 L.Ed.2d 523 (1983). The Court reasoned that the statute does not require the NLRB "to reflexively order that which a complaining party may regard as 'complete relief' for every unfair labor practice." Id., at p. 352, 103 S.Ct. at p. 670.
The holding that the MERC is authorized generally to remedy an unfair labor practice by issuing only a cease-and-desist order does not end the matter. We must still determine whether the MERC orders here were "patent attempt[s] to achieve ends other than those which can fairly be said to effectuate the policies" of the PERA. Crestwood Ed. Ass'n, supra, 88 Mich.App. p. 416, 276 N.W.2d 592. The circumstances of this case are distinguishable from those in Crestwood, where the reinstatements that the charging party sought would not have restored the status quo immediately before the unfair labor practice.
One purpose of the PERA is "to promote the peaceful settlement of industrial disputes by subjecting labor-management...
To continue reading
Request your trial
-
Clerical-Technical Union of Michigan State University v. Michigan State University Bd. of Trustees; Clerical-Technical Union of Michigan State University v. Michigan State University, s. 165131
...Association, MEA/NEA NOS. 104848, 104849, 105072. COA Nos. 165131, 165835. Supreme Court of Michigan July 15, 1997 Prior Report: 214 Mich.App. 42, 542 N.W.2d 303. Disposition: Leave to appeal and the delayed application for leave to appeal are considered and, pursuant to MCR 7.302(F)(1), in......