Crestwood Educ. Ass'n v. Michigan Employment Relations Commission, Docket Nos. 77-3336

• Decision Date: 05 February 1979
• Docket Number: 77-3337,Docket Nos. 77-3336
• Citation: 101 L.R.R.M. (BNA) 2125,276 N.W.2d 592,88 Mich.App. 409
• Parties: CRESTWOOD EDUCATION ASSOCIATION, Charging Party-Intervenor-Appellant, v. MICHIGAN EMPLOYMENT RELATIONS COMMISSION, Appellee, and Crestwood Teachers Organization, Petitioner-Appellee, and Crestwood Board of Education, Employer-Respondent-Appellee. 88 Mich.App. 409, 276 N.W.2d 592, 101 L.R.R.M. (BNA) 2125
• Court: Court of Appeal of Michigan — District of US

Page 592

276 N.W.2d 592

CRESTWOOD EDUCATION ASSOCIATION, Charging Party-Intervenor-Appellant, v. MICHIGAN EMPLOYMENT RELATIONS COMMISSION, Appellee and Crestwood Teachers Organization, Petitioner-Appellee and Crestwood Board of Education, Employer-Respondent-Appellee.

Docket Nos. 77-3336, 77-3337.

88 Mich.App. 409, 276 N.W.2d 592, 101 L.R.R.M. (BNA) 2125

Court of Appeals of Michigan.

Feb. 5, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 411] Levin, Levin, Garvett & Dill by Harvey I. Wax, Southfield, for Crestwood Education Association.

Smith, Poplar & Kalis by Arthur Allan Smith, Dearborn, for Crestwood Teachers Organization.

Edward L. Homeier, Dearborn, for Crestwood Board of Education.

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

[88 MICHAPP 412] Before RILEY, P. J., and T. M. BURNS and CYNAR, JJ.

CYNAR, Judge.

A short history of this dispute is necessary, due to the nature of the issues presented herein.

The Crestwood Education Association (CEA) has, for some time, acted as the certified bargaining agent for teachers employed by the Crestwood Board of Education (Board). Labor difficulties began in the district in the fall of 1971 when coaches of the student athletic teams and sponsors of student clubs refused to perform their assignments. This dispute eventually was brought before the Michigan Employment Relations Commission (MERC). In an opinion ¹ dated April 2, 1973, the Administrative Law Judge ruled that the teachers' failure to perform the above-noted duties constituted an illegal strike. Thus, it was held that the Board's failure to rehire the football coaches did not violate any of the sections of the Public Employee Relations Act (PERA). ² However, the Board's action of unilaterally instituting wage increases for the coaches hired was found to violate §§ 10(1)(a) and 10(1)(e) of the Act. Accordingly, a cease and desist order was entered and the Board was ordered to bargain in good faith with the CEA. That opinion was adopted in full by MERC on May 4, 1973.

The labor problems in the school district subsided until the fall of 1974. On the first day of class for the 1974-1975 school year, September 3, 1974, the members of the CEA failed to report for work. The teachers had been without a collective bargaining agreement since August of 1973. An [88 MICHAPP 413] injunction was obtained by the Board, which was subsequently violated by the teachers in December 1974. The teachers were then told to report to work or resign. Pursuant to this ultimatum, 38 teachers reported for work and one resigned. On December 30, 1974, the remaining 184 teachers in the School District were terminated and replacements hired to take their place.

On January 10, 1975, this termination was set aside by the Wayne County Circuit Court. The Court of Appeals affirmed. ³ On April 4, 1975, the Supreme Court reversed the Court of Appeals ⁴ and upheld the termination, holding that, under the circumstances, individual termination hearings were not required Prior to termination. The Court held that the teachers were presently entitled to individual hearings under § 6 of the PERA to determine if they took part in the strike. The Court also added that teachers Could be entitled to reinstatement if MERC found that the Board committed unfair labor practices.

Subsequently, the CEA pursued charges against the Board which had been previously filed on March 8, 1974. These alleged that, after the expiration of the prior labor contract in August of 1973, the Board had unilaterally changed the terms and conditions of employment under which the teachers were expected to work. The Administrative Law Judge's opinion, recommending dismissal of these charges, was accepted by MERC on July 31, 1975. On that same date MERC also dismissed other charges of unfair labor practices brought by the CEA against the Board. In an opinion dated September 27, 1976, this Court affirmed[88 MICHAPP 414] the MERC decision. ⁵ Leave to appeal was denied by the Michigan Supreme Court. ⁶

The present action arises as a result of the Board's conduct in conjunction with the § 6 hearings ordered by the Supreme Court and the efforts by the replacement teachers to organize into a new bargaining unit. In the fall of 1975 those teachers hired to replace the teachers fired by the Board began organizing into a group called the Crestwood Teachers Organization (CTO). On November 27, 1975, the CTO petitioned MERC for recognition as the sole bargaining agent for teachers in the Crestwood School District. The CEA intervened in that proceeding, alleging certain unfair labor practices by the Board and contending that the CTO was made up of only "temporary teachers".

A hearing was held on these matters on December 22 and 29, 1975, and January 16, 1976. At the hearing three former Crestwood teachers testified as to improprieties committed by the Board. James Brown testified that he had been contacted by the superintendent who had told him he would consider rehiring him if he waived his § 6 hearing or went there without a union-provided attorney. Gerald Miller testified that he contacted the superintendent concerning his old job. Miller asked him what would happen if he were not represented by the union and was told that his § 6 hearing would be expedited. He also testified that his attorney told him it was likely he'd get his job back if he refused union representation at the hearing. This information allegedly came from the Board's attorney. Charles Kotulski testified that he approached [88 MICHAPP 415] a member of the School Board and was told he could get his job back if he went to the § 6 hearing without an attorney.

In an opinion dated June 3, 1976, the Administrative Law Judge held that the Board had violated § 10(1)(c) of PERA by conditioning reemployment on the renunciation of union representation at the § 6 hearings. A cease and desist order was thus entered. In addition, the CTO's representation petition was accepted and an election ordered, which subsequently led to the CTO being elected as the teachers' bargaining representative. In an opinion dated December 29, 1976, MERC accepted the recommendations of the Administrative Law Judge. The CEA now appeals as a matter of right, raising three issues for consideration.

I. The sufficiency of the unfair labor practice remedy.

Appellant initially contends that the cease and desist order was an insufficient remedy in light of the nature of the unfair labor practices committed by the Board. It argues that the three teachers involved should have been reinstated with back pay. In limiting its remedy to a cease and desist order, MERC concluded that the violations were "individual, not widely disseminated and isolated in scope".

In confronting the adequacy of the remedy imposed, it is first necessary to determine this Court's scope of review of MERC's remedial determination. This Court's power of review is established by M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e) which empowers this Court, after the filing of petitions, to

" * * * summarily grant to the commission or to any prevailing party such temporary relief or restraining [88 MICHAPP 416] order as it deems just and proper, enforcing, modifying, enforcing as so modified, or setting aside in whole or in part the order of the commission."

As the statute is silent as to the weight to be given MERC's view of the proper remedy in a given instance, we must look elsewhere for guidance. M.C.L. § 423.216(b); M.S.A. § 17.445(16)(b) requires MERC to issue a cease and desist order and to "take such affirmative action * * * as will effectuate the policies of this act". This language is nearly verbatim that used in the National Labor Relations Act, 29 U.S.C. § 160(c). Under the Federal act, the remedial orders of the National Labor Relations Board are not to be disturbed,

"unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943); NLRB v. Retail Store Employees Union, Local 876, 570 F.2d 586, 593 (CA 6, 1978).

This standard was adopted and applied to the PERA in Van Buren Public School District v. Wayne Circuit Judge, 61 Mich.App. 6, 33, 232 N.W.2d 278 (1975). In the absence of any clear legislative statement to the contrary we adopt this standard in reviewing the present case. Although other standards ⁷ have been adopted in different [88 MICHAPP 417] contexts, when reviewing remedies the above standard of review seems appropriate in light of the mandate of M.C.L. § 423.216(b); M.S.A. § 17.455(16)(b) to fashion remedies so as to "effectuate the policies of this act".

MERC found that the Board violated § 10(1)(c) of the Act. That section states in pertinent part:

"It shall be unlawful for a public employer or an official or agent of a public employer * * * (c) To discriminate in regard to hire, terms or other conditions of employment In order to encourage or Discourage membership in a labor organization * * * ." (Emphasis added.)

It is true that anti-union activity here goes to the very heart of one of the policies of the act, the right of public employees to organize in labor organizations. M.C.L. § 423.209; M.S.A. § 17.455(9) expressly recognizes this right, stating:

"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations * * * ."

This section not only provides public employees with the right to organize, but also states the public policy of this State regarding the unionization of public employees, City of Escanaba v. Labor Mediation Board, 19 Mich.App. 273, 281, 172 N.W.2d 836 (1969).

It is also true that the Board's timing in this matter was abominable. We are dealing here with a longstanding dispute which...