GOGEBIC COMMUN. COLLEGE MESPA v. Gogebic Community College
| Decision Date | 23 August 2001 |
| Docket Number | Docket No. 218181. |
| Citation | 632 N.W.2d 517,246 Mich. App. 342 |
| Parties | GOGEBIC COMMUNITY COLLEGE MICHIGAN EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, Charging Party-Appellant, v. GOGEBIC COMMUNITY COLLEGE, Respondent-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
White, Schneider, Baird, Young & Chiodini, P.C. (by Kathleen Corkin Boyle), Okemos, for Gogebic Community College Michigan Educational Support Personnel Association.
A. Dennis Cossi, Ironwood, for Gogebic Community College.
Before: HOLBROOK, Jr., P.J., and McDONALD and SAAD, JJ.
The union, Gogebic Community College Michigan Educational Support Personnel Association, appeals as of right from an order of the Michigan Employment Relations Commission (MERC) dismissing its unfair labor practice charge against the employer, Gogebic Community College. We affirm.
The collective bargaining agreement between the employer and the union provides that a specific insurance carrier will be used for health and vision benefits. However, regarding dental benefits, the subject of this dispute, the labor agreement simply requires the employer to maintain a specific level of benefits, but not a particular insurance carrier. With respect to the lack of any requirement in the labor contract for the employer to use a specific dental insurance carrier, the hearing referee found, and the MERC agreed, that the union had the opportunity to bargain for a dental carrier, as it did for a health and vision carrier, but failed to do so.
The union complains that, for years, the employer in fact used a specific dental carrier, but nonetheless changed to a self-insured program during the term of the 1996-98 collective bargaining agreement. Though the employer maintained the same level of dental benefits, the union claims the employer had an obligation to bargain for what the union characterizes as a unilateral, mid-term modification of the collective bargaining agreement.
The employer responds that (1) the collective bargaining agreement clearly provides for a level of dental benefits, but not a carrier, (2) the union had an opportunity to bargain for dental coverage (as it did for health and vision) and failed to do so, and (3) the collective bargaining agreement contains a waiver clause that provides "that the labor agreement constitutes the full agreement of the parties and that each side waives the right to further bargaining over matters covered by the agreement or not specifically referred to therein." Gogebic Comm. College v. Gogebic Comm. College MESPA, 1999 MERC Lab Op. 28; 12 MPER ¶ 30020.
Accordingly, the employer argues and the hearing referee and the MERC agreed, as do we, that the employer had no duty to bargain regarding this matter, which was clearly and unambiguously covered in the collective bargaining agreement. To the union's claim that the past practice of using a specific carrier constituted an amendment of the collective bargaining agreement, requiring the employer to continue to use the same dental carrier absent collective bargaining, the hearing referee and the MERC disagreed, and we also disagree. The hearing referee and the MERC held, and we hold, that pursuant to Port Huron Ed. Ass'n v. Port Huron Area School Dist., 452 Mich. 309, 550 N.W.2d 228 (1996), because the collective bargaining agreement provision regarding dental coverage was clear and unambiguous, the past practice here would have had to have been mutually understood, accepted, and agreed to by the employer as modifying the labor agreement. And, because there was no evidence of any such understanding by the employer, the past practice in question did not modify the collective bargaining agreement. Therefore, the clear language remains; the employer had no duty to bargain with respect to a carrier for dental coverage because this matter was covered by the collective bargaining agreement. The employer had a right to change carriers or to self-insure and, therefore, did not violate the public employment relations act (PERA), M.C.L. § 423.201 et seq., by doing so. We affirm.
The parties do not dispute the essential facts in this case, which we quote directly from the hearing referee's opinion:
* * *
After looking at the premium and claims history, they decided to change to a self funded program. As a result, instead of paying a predetermined set premium, the College is now billed monthly from SET, paying a premium based on claims made, as well as an administrative cost of $2.25 per person. The College makes an original deposit required by SET and each month receives a billing which shows claims paid; the difference between the deposit premium and claims paid is the premium sent to SET each month.
Cvengros testified that under the self funded program, the benefits did not change, the claim forms and procedures remained the same, and the College continued to pay the full premium. The College also set aside $25,000 in a designated fund as a contingency for their self-funded vision and dental insurance coverage. In addition, the College has a general contingency fund of approximately $45,000 which could be utilized if necessary. [Gogebic, supra, 1999 MERC Lab Op. 28; 12 MPER ¶ 30020.]
On October 20, 1997, the union filed an unfair labor practice charge in response to the employer's change to a self-funded dental program. The union alleged that the employer violated § 10 of the PERA, M.C.L. § 423.210, by failing to bargain with the union before making a midterm, unilateral change. On October 26, 1998, hearing referee Nora Lynch issued a decision and recommended order, which held that the employer did not violate the PERA. Specifically, the hearing referee found that the collective bargaining agreement provided that the employer would pay the full premium for a dental program, but did not specify a dental carrier. The hearing referee also determined that the union could have bargained for a specific carrier, as it did for health and vision, but failed to do so. The hearing referee further found that no substantive changes were made to the dental coverage and, because the union had exercised its bargaining rights with regard to the dental coverage, the employer was not obligated to bargain for the change to a self-insured program. Accordingly, the hearing referee found no violation of § 10 and recommended the dismissal of the union's charge.
The union filed exceptions to the hearing referee's decision and, on February 25, 1999, the MERC issued its decision and order, affirming the hearing referee's findings and conclusion. The MERC found that the agreement allowed the employer to unilaterally change the dental insurance program. Further, the MERC ruled that the union failed to show that the employer's past practice constituted an agreement that its use of the former dental carrier would continue. The MERC also ruled that the employer's change to a self-funded program did not materially alter the benefits to its employees. Accordingly, the MERC dismissed the union's charge.
Regarding the MERC's findings of fact, our Supreme Court has ruled:
[R]eview of the commission's decision is circumscribed by the statutory mandate that factual findings of the commission are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. Review of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency's choice between two reasonably differing views of the evidence. [ Amalgamated Transit Union v. SEMTA, 437 Mich. 441, 450, 473 N.W.2d 249 (1991) (citations omitted).]
Regarding questions of law, we will set aside a legal ruling by the MERC if it violates the constitution or a statute, or if the ruling is "...
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