Michigan Community Services, Inc. v. N.L.R.B.
| Decision Date | 30 October 2002 |
| Docket Number | No. 00-2192.,No. 00-2440.,No. 00-2451.,00-2192.,00-2440.,00-2451. |
| Citation | 309 F.3d 348 |
| Parties | MICHIGAN COMMUNITY SERVICES, INC., et al., Petitioners/Cross-Respondents, American Federation of State, County & Municipal Employees (AFSCME), AFL-CIO, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, American Federation of State, County & Municipal Employees (AFSCME), AFL-CIO; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO; Summer's Living Systems, Inc., et al., Intervenors. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregory J. Bator (argued and briefed), Circuit Judges. Bator & Berlin, Birmingham, MI, for Petitioners Cross-Respondents in 00-2192, 00-2440.
Daniel A. Gwinn (briefed), Bator & Berlin, Birmingham, MI, for Petitioners Cross — Respondents in 00-2440.
Catherine J. Trafton (briefed), Associate General Counsel, International Union, UAW, Detroit, MI, George B. Washington (briefed), Scheff & Washington, Detroit, MI, for Intervenor in 00-2192.
Richard A. Cohen (argued and briefed), Fred L. Cornnell, Jr., National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Dep.Asso.Gen.Counsel, Julie B. Broido, National Labor Relations Board, Appellate Court Branch, Washington, DC, Amy J. Roemer, National Labor Relations Board, Region Seven, Detroit, MI, for Respondent Cross-Petitioner for 00-2192, 00-2440.
Margaret A. McCann (argued and briefed), Washington, DC, Lawrence R. Webb (briefed), Detroit, MI, for Intervenor in 00-2192.
Margaret A. McCann (argued and briefed), Washington, DC, Rodger Webb (briefed), Detroit, MI, for Petitioner in 00-2451.
Daniel A. Gwinn (briefed), Gregory J. Bator (argued and briefed), Bator & Berlin, Birmingham, MI, for Intervenors in 00-2451.
Richard A. Cohen (argued), Fred L. Cornnell, Jr., National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Dep.Asso.Gen.Counsel, Julie B. Broido, National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondents in 00-2451.
Before: SILER, COLE, and CLAY, Circuit Judges.
Michigan Community Services, Inc. and twenty-eight other non-profit corporations (collectively "MCS"), which are licensed by the State of Michigan to provide residential care for developmentally disabled adults in a residential setting, appeal in Case No. 00-2192 from the final decision and order entered by the National Labor Relations Board ("the NLRB" or "the Board") in Summer's Living Systems, Inc., 2000 WL 1460041 (N.L.R.B.2000) (unpublished) in which the NLRB declined to set aside union representation elections and held that MCS engaged in unfair labor practices under §§ 7 and 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1) and (5) ("the Act") by refusing to bargain collectively with the American Federation of State, County & Municipal Employees, AFL-CIO ("AFSCME"), and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO ("UAW"), (collectively, "the Unions"), after the unions won the elections. In Case No. 00-2440, the NLRB has cross-petitioned for enforcement of the order; the Unions have intervened in support of the NLRB's cross-petition. In Case No. 00-2451, AFSCME seeks review of the NLRB's decision and order in Summer's Living Systems dismissing unfair labor practice allegations against Summer's Living Systems, Inc. and eight other employers (collectively "SLS") that own residential care facilities. SLS has intervened in opposition to AFSCME's petition.
In Summer's Living Systems, the Board issued a decision and order affirming the decision made by the administrative law judge ("ALJ") to extend comity to the union representation elections conducted by the Michigan Employee Relations Commission ("MERC") in thirty residential care facilities owned by MCS that took place before Management Training Corp., 317 NLRB 1355, 1995 WL 451936 (1995) was decided, but not to extend comity to the MERC-conducted elections in the residential care facilities owned by SLS that took place after Management Training was decided on the ground that MERC lacked jurisdiction to conduct those union representation elections. In Management Training, the Board, overruling the jurisdictional test set forth in Res-Care, Inc., 280 NLRB 670, 1986 WL 53982 (1986), decided that it had jurisdiction over an employer with close ties to an exempt governmental entity, as defined under 29 U.S.C. § 152(2). Accordingly, the Board upheld the unfair labor practice complaints filed against MCS, but dismissed those filed against SLS. For the reasons set forth below, we DENY the petitions for review by MCS in Case No. 00-2192 and by AFSCME in Case No. 00-2451, and ENFORCE the Board's order in Case No. 00-2440.
The present case concerns a dispute between a group of Michigan non-profit corporations operating group homes providing residential care and services to individuals with disabilities (collectively "the Employers") and the Unions representing their employees regarding the employees' rights to choose union representation under § 7 of the Act. The State of Michigan Department of Mental Health ("MDMH") funds the Employers' operations through annual contracts that establish defined limits upon wages and benefits that the Employers may pay. In 1985, the Unions began organizing efforts at the Employers' residential care facilities, with AFSCME filing several election petitions with the Board's regional office in Detroit, Michigan, seeking to represent the employees of the Employers operating under contracts with MDMH. In CK Homes, Inc. v. AFSCME, an unpublished decision of the NLRB Seventh Region Director, decided February 14, 1986 (Case No. 7-RM-1275) and Residential Systems v. UAW, an unpublished decision of the NLRB Seventh Region Director, decided April 7, 1988 (Case No. No. 7-RC-18529), the Board, relying primarily upon Res-Care Inc., 280 NLRB 670, 1986 WL 53982 (1980), dismissed AFSCME's petitions, citing lack of subject-matter jurisdiction under the Act on the basis that the State of Michigan was an exempt governmental entity.
Thereafter, on January 28, 1988, AFSCME filed petitions with MERC seeking to represent the employees of the Employers' separate units, naming MDMH and the group home providers as joint employers. MDMH opposed the petitions naming it as a joint employer, claiming that MERC's jurisdiction over each private employer was preempted as a matter of federal labor policy. After finding that the named employers were joint employers, MERC asserted jurisdiction over MDMH under the Michigan Public Employment Relations Act ("PERA"), Mich. Comp. Laws Ann. §§ 423.201-423.216, and over the group home providers under the Michigan Labor Mediation Act ("MLMA"), Mich. Comp. Laws Ann. §§ 423.1-423.30. In asserting jurisdiction, MERC relied upon the Board's refusal to assert jurisdiction over the group home providers under the Act and the decision of the Michigan Civil Service Commission not to classify the employees of the group homes as state civil service employees. See AFSCME v. La. Homes, Inc./Mich. Dep't of Mental Health, MERC Case No. R88 C-112, 1989 MERC Lab Op 51, 1990 MERC Lab Op 491, aff'd, AFSCME v. La. Homes, 192 Mich.App. 187, 480 N.W.2d 280 (1991), appeal denied, 440 Mich. 879, 487 N.W.2d 410 (1992), vacated, 441 Mich. 883, 503 N.W.2d 442 (1992), reaff'd on remand, 203 Mich.App. 213, 511 N.W.2d 696 (1994), appeal denied, 445 Mich. 938, 521 N.W.2d 607 (1994), cert. denied sub. nom., Mich. Dep't of Mental Health v. Louisiana Homes, Inc., 513 U.S. 1077, 115 S.Ct. 724, 130 L.Ed.2d 629 (1995) ("Louisiana Homes").
MERC then directed and conducted elections involving the joint employers, as authorized by PERA. After elections were conducted on April 20, 1989, the ballots were impounded, but eventually counted by MERC on June 29, 1990. The Unions won each election.1 As a consequence, MERC certified the bargaining representatives, giving unit employees bargaining rights with respect to MDMH and their private employers, as joint employers. MDMH, however, refused to honor MERC's certifications and challenged them in state court, seeking judicial review of the MERC's assertion of jurisdiction by claiming that it was not a joint employer of the subject-unit employees and contending that the Act preempted state law. MERC's assertion of jurisdiction was eventually upheld on appellate review in the Louisiana Homes litigation. Throughout the appellate proceedings, the Employers took the same position as AFSCME, that they and MDMH were joint employers subject to MERC's jurisdiction which was not preempted by the Act. During this time, however, no bargaining in the certified units took place because the Employers were unwilling to participate in bargaining if MDMH was also not a participant.
After the United States Supreme Court denied MDMH's petition for a writ of certiorari in the Louisiana Homes case on January 9, 1995, bargaining eventually commenced, but did not last long. In mid-1995, the Board announced a change in policy in Management Training, overruling the test stated in Res-Care and declaring that it had jurisdiction over private employers under contract with exempt state agencies. In light of the Board's decision in Management Training, MDMH petitioned the Michigan Court of Appeals to reconsider and reverse its previous decision finding that MERC's jurisdiction was not preempted as a matter of federal labor policy. Thereafter, on January 26, 1996, the Michigan Court of Appeals, in reliance upon Management Training, vacated MERC's decisions requiring the Employers and MDMH to bargain with the Unions in all the adult residential care cases before MERC, concluding that MERC's jurisdiction was...
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