Jackson Community College Classified and Technical Ass'n, Michigan Educational Support Personnel Ass'n v. Jackson Community College

• Citation: 468 N.W.2d 61,187 Mich.App. 708,67 Ed. Law Rep. 272
• Decision Date: 18 March 1991
• Docket Number: Docket No. 122425
• Parties: JACKSON COMMUNITY COLLEGE CLASSIFIED AND TECHNICAL ASSOCIATION, MICHIGAN EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION, Petitioner-Appellee, v. JACKSON COMMUNITY COLLEGE, Respondent-Appellant. 187 Mich.App. 708, 468 N.W.2d 61, 67 Ed. Law Rep. 272
• Court: Court of Appeal of Michigan (US)

Page 61

468 N.W.2d 61

JACKSON COMMUNITY COLLEGE CLASSIFIED AND TECHNICAL ASSOCIATION, MICHIGAN EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION Petitioner-Appellee, v. JACKSON COMMUNITY COLLEGE, Respondent-Appellant.

Docket No. 122425.

187 Mich.App. 708, 468 N.W.2d 61, 67 Ed. Law Rep. 272

Court of Appeals of Michigan.

Submitted Nov. 20, 1990, at Lansing.

Decided March 18, 1991, at 9:15 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 709] White, Beekman, Przybylowicz, Schneider & Baird, P.C. by Kathryn A. VanDagens, Okemos, for petitioner-appellee.

George J. Brannick, Jackson, for respondent-appellant.

Before MacKENZIE, P.J., and McDONALD and MURPHY, JJ.

MURPHY, Judge.

Respondent, Jackson Community College, appeals as of right from a Michigan Employment Relations Commission ruling which found that respondent had committed an unfair labor practice by unilaterally altering existing [187 MICHAPP 710] terms and conditions of employment during negotiation of a new collective bargaining agreement with petitioner, Jackson Community College Classified and Technical Association, MESPA. Respondent had failed to pay petitioner's members an annual step increase in wages pursuant to a provision of an expired collective bargaining agreement during the time the parties were negotiating a successor agreement. We affirm.

The facts of this case are undisputed. Petitioner is the bargaining representative of the noninstructional personnel employed by respondent. Petitioner and respondent were parties to a two-year collective bargaining agreement that expired on June 30, 1987. The collective bargaining agreement called for a general five-percent wage increase in each of its two years. The wage increases were incorporated into succeeding "grids." The grids divided jobs into several grades and provided for step increases in wages for each grade according to an employee's years of service.

Before the expiration of the collective bargaining agreement, the parties began to negotiate a successor agreement in which petitioner sought to reduce the number of steps in the grid. After the agreement expired on June 30, 1987, the first paychecks received by the employees did not reflect the step increases provided for in the final grid of the expired agreement. After inquiries to respondent regarding the step increases were not resolved to petitioner's satisfaction, petitioner filed an unfair labor practice charge on January 8, 1988, claiming that respondent's refusal to pay the step increases pursuant to the expired collective bargaining agreement was a violation of subsections 10(1)(a) and (e) of the Public Employment Relations Act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq.

[187 MICHAPP 711] On July 25, 1989, Hearing Referee James P. Kurtz issued his decision and recommended order in favor of respondent. The hearing referee believed that respondent had no duty to pay the step increases of the expired contract while the step increases were an issue in the ongoing negotiations. Petitioner appealed to the MERC. The MERC determined that the step increases of the expired agreement were a mandatory subject of collective bargaining that could not be unilaterally altered by respondent until an impasse or an agreement was reached in negotiation. Since there was no claim that the parties had reached an impasse, the MERC found that respondent had violated its duty to bargain by failing to pay the step increases in accord with the expired agreement.

On appeal, respondent does not contest the MERC's findings of fact, only its conclusions of law. This Court may review the law regardless of the factual findings of the MERC. Southfield Police Officers Ass'n. v. Southfield, 433 Mich. 168, 175, 445 N.W.2d 98 (1989); Wayne Co. Government Bar Ass'n. v. Wayne Co., 169 Mich.App. 480, 485, 426 N.W.2d 750 (1988). This Court may determine whether a decision of the MERC is "authorized by law." Const.1963, art. 6, Sec. 28; Southfield, supra. A decision may be set aside on appeal if based on a "substantial and material error of law." M.C.L. Sec. 24.306(1)(f); M.S.A. Sec. 3.560(206)(1)(f).

The PERA governs labor relations in public employment. The provisions of the PERA are to be construed liberally in favor of public employees as compensation for the act's prohibition against striking. M.C.L. Sec. 423.202; M.S.A. Sec. 17.455(2); West Ottawa Ed. Ass'n. v. West Ottawa Public Schools Bd. of Ed., 126 Mich.App. 306, 315, 337 N.W.2d 533 (1983).

At the expiration of a collective bargaining agreement, the PERA requires a public employer to [187 MICHAPP 712] bargain collectively in good faith "with respect to wages, hours, and other terms and conditions of employment." M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15). "Wages, hours, and other terms and conditions of employment" that are deemed to be "mandatory subjects" of bargaining survive the expiration of an agreement by operation of law until an impasse in negotiation occurs. Ottawa Co. v. Jaklinski, 423 Mich. 1, 12-13, 377 N.W.2d 668 (1985); AFSCME, Council 25 v. Wayne Co., 152 Mich.App. 87, 94, 393 N.W.2d 889 (1986). Before an impasse in the bargaining process is reached, neither party may take unilateral action with respect to a mandatory subject of bargaining, Southfield, supra, 433 Mich. at 178, 445 N.W.2d 98; Jaklinski, supra, absent a clear and unmistakable waiver. Wayne Co. Government Bar Ass'n., supra, 169 Mich.App. at 486, 426 N.W.2d 750; Lansing Fire Fighters Union v. Lansing, 133 Mich.App. 56, 349 N.W.2d 253 (1984). An employer who takes unilateral action on a mandatory subject of bargaining before an impasse has committed an unfair labor practice under the PERA. M.C.L. Sec. 423.210(1)(e); M.S.A. Sec. 17.455(10)(1)(e); Southfield, supra, 433 Mich. at 178, 445 N.W.2d 98; Wayne Co. Government Bar Ass'n., supra, 169 Mich.App. at 486, 426 N.W.2d 750.

In this case, there is no dispute that an impasse in negotiations had not been reached at the time respondent unilaterally failed to grant a step increase in wages to petitioner's members. Thus, we must determine whether the step increases were a mandatory subject of bargaining and whether petitioner waived unilateral action by respondent.

What constitutes a mandatory subject of bargaining under the PERA is decided case by case. Southfield, supra, 433 Mich. at 178, 445 N.W.2d 98; Manistee v. Manistee Fire Fighters Ass'n., 174...