Kalamazoo City Ed. Ass'n v. Kalamazoo Public Schools

Decision Date24 July 1979
Docket NumberNos. 13,Docket Nos. 60912,AFL-CI,P,24,59956,s. 13
Citation406 Mich. 579,281 N.W.2d 454,102 L.R.R.M. (BNA) 3102
PartiesKALAMAZOO CITY EDUCATION ASSOCIATION, Plaintiff-Appellant, v. KALAMAZOO PUBLIC SCHOOLS, Defendant-Appellee. DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS,laintiff-Appellant, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF DETROIT, Defendant- Appellee. Calendar406 Mich. 579, 281 N.W.2d 454, 102 L.R.R.M. (BNA) 3102
CourtMichigan Supreme Court

Beer, Boltz & Bennia, Louis D. Beer, Bloomfield Hills, Kemp, Klein, Endelman & Beer, Sandra G. Silver, Southfield, on brief; Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, by Theodore Sachs, Detroit, for plaintiff-appellant.

Huston & Manske, Kalamazoo, by John Griffin Manske, Kalamazoo, for defendant-appellee, Kalamazoo Public Schools.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank W. Edwards, Jon M. DeHorn, Asst. Attys. Gen., Detroit, on briefs; Raymond F. Santangelo, Detroit, for defendant-appellee.

MOODY, Justice.

Plaintiff Kalamazoo City Education Association (hereafter KCEA) appeals from an order of the Court of Appeals summarily affirming the Michigan Employment Relations Commission (hereafter MERC). The MERC had dismissed its petition challenging Administrative Law Judge James Kurtz's determination that defendant Kalamazoo Public Schools had committed no unfair labor practices under the public employment relations act (hereafter PERA). 1965 P.A. 379, as amended, M.C.L. § 423.210; M.S.A. § 17.455(10).

Plaintiff Detroit Federation of Teachers (hereafter DFT) appeals from the order of the Court of Appeals summarily denying enforcement of a MERC order affirming Administrative Law Judge Shlomo Sperka's finding of unfair labor practices by defendant Detroit Board of Education.

The questions presented by these cases involve the interpretation of the enforcement and review provisions of PERA, M.C.L. §§ 423.216(d); 423.216(e); M.S.A. §§ 17.455(16)(d); 17.455(16)(e). We must decide in each instance whether the Court of Appeals erred, in light of recent amendments to these provisions, 1976 P.A. 99 and 1977 P.A. 266, when they gave only summary treatment to plaintiffs' petitions from their respective MERC orders. In the course of this determination, we must establish whether one of the amendments, 1977 P.A. 266, retroactively affects cases originally filed in the Court of Appeals prior to the amendment's effective date. We must also decide in the case of the DFT whether enforcement of an order of the MERC may be denied by the Court of Appeals on the basis of a purported change in circumstances.

We hold that the Court of Appeals did err by summarily denying the petition for review brought by KCEA. On the other hand, we do not find that the Court erred by extending only summary treatment to the petition for enforcement brought by the DFT. See M.C.L. §§ 423.216(d); 423.216(e); M.S.A. §§ 17.455(16) (d); 17.455(16)(e). Further, we hold 1977 P.A. 266 applicable to these parties, even though their petitions were first filed in the Court of Appeals before the effective date of the amendment. Finally, though we recognize that a change in circumstances may in some cases affect the continuing viability of a MERC order, we find the Court of Appeals erred here by denying the DFT enforcement on the basis of two judicial decisions issued subsequent to the MERC order, I. e. Bradley v. Milliken, 540 F.2d 229 (CA 6, 1976); Detroit Federation of Teachers v. Detroit Board of Education, 396 Mich. 220, 240 N.W.2d 225 (1976).

I. Facts

Due to a dispute involving the faculty and administration of Hillside Junior High School in Kalamazoo, the KCEA brought various charges of unfair labor practices against defendant. These charges were originally filed on July 25, 1975 and later amended. Three of the charges were ultimately addressed in an administrative hearing. The first alleged that defendant refused to properly comply with an arbitration award involving the involuntary transfer of a physical education instructor from one school within the system to another. A second charged defendant with a refusal to correctly process the grievance attendant upon the termination of two faculty employees. A third related to defendant's refusal to bargain in good faith regarding certain economic appendices open to contract negotiation during the school year 1975-76. Remaining charges were deferred to arbitration during the administrative hearing.

The matter was brought to hearing on January 27, 1976. During the course of the hearing, plaintiff claimed the administrative law judge wrongly precluded from the record evidence of defendant's bad faith in regard to some aspects of the case deferred to arbitration. Plaintiff also excepted to the judge's interlocutory order of November 10, 1975, quashing the use of a subpoena to obtain evidence concerning a speech by defendant's superintendent. A decision rejecting the KCEA claims and an order of dismissal were issued on November 12, 1976. A majority of the MERC upheld the ruling of the administrative law judge, though they differed with him on plaintiff's claim of improperly excluded evidence.

KCEA filed both a claim of appeal as of right and an application for leave to appeal with the Court of Appeals. GCR 1963, 803.1; 806.6. The Court of Appeals issued an order summarily enforcing the MERC decision and denying the appeal as of right on December 21, 1977. Another order granting defendant's motion to dismiss the claim of appeal as of right was issued on December 27, 1977. The effect of these orders was to affirm the MERC decision and order by summary treatment. The Court specifically found that a petition to review under M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e), as amended by 1976 P.A. 99, does not invoke the Court's jurisdiction as of right and only requires a summary disposition. KCEA appealed to us and we granted leave. 402 Mich. 918 (1978).

Detroit Federation of Teachers

The DFT filed 11 specific charges of unfair labor practices against defendant Board of Education on January 16, 1974. The allegations entailed interference with employee rights and refusal to bargain in good faith. All except six charges were withdrawn or dismissed prior to the administrative hearing.

Of the six remaining claims of unfair labor practices, the administrative law judge found that four of them did violate the bargaining provision of the PERA. M.C.L. § 423.210; M.S.A. § 17.455(10). The first finding concerned defendant's unilateral modification in the existing balance of staff formula governing racial balance in faculty assignments. Prior to the fall of 1973, undisputed evidence indicated that the ratio was 75-25%. The defendant then unilaterally altered the minimum critical ratio to 70-30%. The second finding entailed defendant's failure to observe the automatic salary progression schedule traditionally incorporated into each collective bargaining agreement between the parties. The third finding centered about changes in rates of pay for certain teaching seminars without benefit of any collective bargaining. The judge's final ruling involved defendant's failure to furnish specific information in the form of data concerning agency shop compliance, lists of substitute teachers entitled to receive individual contracts, and names and addresses of "emergency substitutes in regular positions" (ESRPs). With the exception of the second finding, which was dismissed, the MERC affirmed the administrative law judge by a unanimous decision.

On January 31, 1977, the DFT petitioned the Court of Appeals for a summary order of enforcement, citing M.C.L. § 423.216(e); M.S.A. § 17.455(16)(e), as amended by 1976 P.A. 99. The Court of Appeals denied plaintiff's petition with an order dated June 7, 1977. Enforcement was denied "because changes in circumstances since the order was entered make present enforcement inappropriate. See Bradley v. Milliken, 540 F.2d 229 (CA 6, 1976), Cert. grtd., 429 U.S. 958, 97 S.Ct. 380, 50 L.Ed.2d 325 (1976); Detroit Federation of Teachers v. Detroit Board of Education, 396 Mich. 220, 240 N.W.2d 225 (1976)." Judge Michael Cavanagh would have granted the petition for enforcement. Plaintiff appealed to this Court and we granted leave. 402 Mich. 856 (1978).

II. Discussion
A. Background

Prior to amendment by 1976 P.A. 99 and 1977 P.A. 266, the enforcement and review provisions of the PERA read as follows:

"(d) The board may petition the court of appeals for the enforcement of the order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings. Upon the filing of the petition, the court shall cause notice thereof to be served upon the person, and thereupon shall have jurisdiction of the proceeding and shall grant such temporary or permanent relief or restraining 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 board. No objection that has not been urged before the board, its member or agent, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive. If either party applies to the court for leave to present additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to present it in the hearing before the board, its member or agent, the court may order the additional evidence to be taken before the board, its member or agent, and to be made a part of the record. The board may modify its findings as to the facts, or make new findings, by reason of additional evidence so...

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