Ingham Co. v. Capitol City Lodge Fop
| Decision Date | 03 April 2007 |
| Docket Number | Docket No. 263956. |
| Citation | 275 Mich. App. 133,739 N.W.2d 95 |
| Parties | INGHAM COUNTY and Ingham County Sheriff, Respondents-Appellants, v. CAPITOL CITY LODGE NO. 141 OF the FRATERNAL ORDER OF POLICE, Labor Program, Inc., Charging Party-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Before: WHITBECK, C.J., and BANDSTRA and SCHUETTE, JJ.
This case arose when respondents Ingham County (the county) and Ingham County Sheriff (the sheriff) disciplined Detective Laurie Siegrist, the division president of the charging party, Capitol Lodge No. 141 of the Fraternal Order of Police, Labor Program, Inc. (the union). The county and the sheriff charged that Detective Siegrist violated the sheriff's written work rules when, without prior authorization, she faxed to an attorney for the union an internal memorandum regarding a new policy that required all detectives to wear pagers while on and off duty. The union then filed a grievance for unfair labor practice against the county and the sheriff with the Michigan Employment Relations Commission (MERC). The hearing referee concluded that the county and the sheriff violated MCL 423.210(1)(a) and (c) of the public employment relations act (PERA)1 by enforcing the rule requiring prior authorization against Detective Siegrist. MERC adopted the hearing referee's recommendation. The county and the sheriff appeal as of right that MERC order. We reverse.
We quote the following facts from the decision and recommended order of the hearing referee, which were adopted by MERC and are not in dispute. The findings of MERC "with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole shall be conclusive."2
Rule 106 of [the sheriff's] internal rules and regulations is entitled "Records and Information Security." It provides, in relevant part:
The Department recognizes that its Members, by virtue of their position, will gain access to sensitive and restricted information. What is learned as a Member cannot be disseminated for other than Departmental purposes and then only through approved procedures.
All information, records, software, hardware, data and related equipment used, maintained, owned, produced, licensed, or managed by the Department are the property of the Department and may not be used, copied, reproduced, released, or viewed except in accordance with Department procedures.
No Departmental documents to include, but not limited to, reports, photographs, memos, and official records shall be released to the public without authorization and in compliance with the Freedom of Information Act.
On March 11, 2003, Lieutenant Jeff Joy used Respondent's e-mail system to send the following memo to all Respondent's detectives, including Siegrist:
Later that day, two detectives asked Siegrist if [the sheriff] could lawfully implement a new rule requiring them to wear pagers off duty. Siegrist told them she was not sure. Siegrist phoned [the union's] attorney, R. David Wilson. They discussed the issue, and Wilson asked her to fax him a copy of the memo.
On March 12, Wilson sent . . . Undersheriff Matthew Myers the following letter:
On March 17, Myers sent a memo to all detectives with a copy of the [sic] Wilson's March 12 letter attached. The memo stated that an internal document authored by Lieutenant Joy was distributed to Wilson without authorization, and that this action violated Department Rule 106.
On March 20, Siegrist received a written verbal warning3 for violating Rule 106. The warning, which was placed in Siegrist's personnel file, stated:
[MERC hearing referee decision and recommended order.]
The hearing referee concluded that disciplining Detective Siegrist for giving a copy of the memorandum to the union's attorney violated PERA by infringing on Detective Siegrist's right to engage in protected "concerted activities." More specifically, the hearing referee concluded that Detective Siegrist was engaged in lawful concerted activity when she sought the union attorney's opinion regarding a condition of employment. The hearing referee acknowledged that the union was not directly challenging rule 106; she recognized that "the only issue here is whether [the sheriff] could lawfully discipline an employee for violating an otherwise legitimate work rule in the course of conduct that would otherwise be protected by PERA." Continuing her analysis, the hearing referee stated as follows:
[The Sheriff] argues that instead of giving Wilson a copy of the memo, Siegrist could have made a formal request for the document.1 However, Siegrist testified that when she read the memo she did not know whether it constituted a violation of [the sheriff's] bargaining duty. Siegrist had a legitimate interest in discussing the memo with Wilson without [the sheriff] knowing about their discussion. Moreover, by providing Wilson with a copy of the memo, Siegrist ensured that Wilson knew exactly what [the sheriff] had told employees, so he could accurately determine whether [the sheriff] had overstepped its rights. I also conclude that [the sheriff] did not establish a legitimate and substantial business justification for applying Rule 106 to Siegrist's conduct. [The sheriff] has a legitimate interest in preventing the unauthorized disclosure of confidential information and documents to the public. However, [the sheriff] did not offer a business justification for prohibiting Siegrist, a member of the [union's] bargaining [unit], from giving Wilson, a non-employee agent of [the union], a document clearly relevant to the wages, hours, and terms and conditions of employment of bargaining unit employees. Balancing [the sheriff's] general interest in protecting the confidentiality of its information against the effect of the discipline on Siegrist's ability to exercise her Section 9 rights, I conclude that [the sheriff] violated Section 10(1)(a) and (c) by disciplining Siegrist. . . .
1 [The sheriff] admits that, upon receipt of a proper request, it would have been required to provide [the union] with a copy of Joy's memo pursuant to [the sheriff's] duty to provide information and/or the Michigan Freedom of Information Act, MCL 15.231 et seq.
The hearing referee recommended that MERC enter an order directing Ingham County to: (1) cease and desist from applying rule 106 in a way that "interferes, restrains or coerces employees in the exercise of their rights guaranteed under Section 9 of PERA"; (2) remove the relevant written verbal warning from Detective Siegrist's personnel file; and (3) post a notice to employees regarding this matter.
MERC subsequently adopted the hearing referee's recommended order as its order. In its opinion, MERC concluded as follows:
No claim is made, nor is there evidence to support a claim, that Siegrist's disclosure to [the union's] attorney dealt with a confidential matter pertaining to security. The [sheriff] argues that [the union] had no right to receive the document disclosed by Siegrist. It does not dispute [the union's] right to receive the information contained in that document.
MERC declined "to hold that the [sheriff's] legitimate business interest permits it to ban disclosures that categorically include communications protected by PERA." According to MERC:
Although an employer has a legitimate business interest in preventing the unauthorized disclosure of confidential information, there has been no showing here of a business justification for prohibiting Siegrist from giving [the union's] attorney a document pertaining to a condition of employment affecting bargaining unit employees. Siegrist was engaged in lawful concerted activity within the meaning of Section 9 of PERA when she sought Wilson's opinion as to [the sheriff's] right to require, without bargaining, that bargaining unit members...
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