Michigan Employment Relations Com'n v. Cafana Cleaners, Inc.

• Decision Date: 01 March 1977
• Docket Number: P,Docket Nos. 30631,30632,AFL-CI
• Citation: 73 Mich.App. 752,95 L.R.R.M. (BNA) 2646,252 N.W.2d 536
• Parties: MICHIGAN EMPLOYMENT RELATIONS COMMISSION, Plaintiff-Appellant, and Service and Production Division, Amalgamated Clothing Workers of America,laintiff, v. CAFANA CLEANERS, INC. a/k/a Cafana Tuxedo Rentals, Defendant-Appellee. 73 Mich.App. 752, 252 N.W.2d 536, 95 L.R.R.M. (BNA) 2646, 82 Lab.Cas. P 55,073
• Court: Court of Appeal of Michigan — District of US

Page 536

252 N.W.2d 536

MICHIGAN EMPLOYMENT RELATIONS COMMISSION,

Plaintiff-Appellant,

and

Service and Production Division, Amalgamated Clothing

Workers of America, AFL-CIO, Plaintiff, v. CAFANA CLEANERS, INC. a/k/a Cafana Tuxedo Rentals,

Defendant-Appellee.

Docket Nos. 30631, 30632.

73 Mich.App. 752, 252 N.W.2d 536, 95 L.R.R.M. (BNA) 2646,

82 Lab.Cas. P 55,073

Court of Appeals of Michigan.

March 1, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 754] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., for plaintiff-appellant.

[73 MICHAPP 755] Hampton, Snavely, Ranno, Lightbody & Girard by Carl P. Ranno, Bloomfield Hills, for defendant-appellee.

Before QUINN, P. J., and R. B. BURNS and CAVANAGH, JJ.

PER CURIAM.

Plaintiff has petitioned this Court for an order enforcing the Commission's order of November 7, 1975, which ordered defendant to reinstate three discharged employees with back pay and directing a representation election after the reinstatement. Defendant has answered the petition. The case was submitted to the Court on a special motion docket as a petition to enforce the order of MERC. Since Michigan Employment Relations Commission v. Detroit Symphony Orchestra, Inc., 387 Mich. 424, 196 N.W.2d 763 (1972), a petition for enforcement filed by MERC is an original proceeding in this Court and MERC, litigants and the Clerk of this Court should so treat it. We consider this petition as an original proceeding.

This case presents two issues:

1. What is the effect of M.C.L.A. § 423.23(e) and (f); M.S.A. § 17.454(25)(e) and (f), as amended by 1976 P.A. 98, M.C.L.A. § 423.23(2)(d) and (e); M.S.A. § 17.454(25)(2)(d) and (e), on the decisions in Detroit Symphony, supra, and Michigan Employment Relations Commission v. Reeths-Puffer School District, 391 Mich. 253, 215 N.W.2d 672 (1974)?

2. Should the enforcement order be granted?

Detroit Symphony, supra, invalidated the summary procedure employed by the Court of Appeals in handling enforcement petitions. As a result of that opinion and the opinion in Reeths-Puffer, supra, this Court was required to process enforcement[73 MICHAPP 756] petitions on a formal submission with oral argument and opinion. This requirement is the key to the resolution of the first issue because it must be presumed that the Legislature had in mind the Detroit Symphony and Reeths-Puffer decisions on the former statute in enacting the amendment, Evans v. Ross, 309 Mich. 149, 14 N.W.2d 815 (1944). By adding the word "summarily" to M.C.L.A. § 423.23(2)(d) and (e), we conclude that the Legislature intended to eliminate the requirements announced in Reeths-Puffer and reinstate summary disposition by the Court of Appeals.

Under former M.C.L.A. § 423.23(e); M.S.A. § 17.454(25)(e), there was no direction that the Court of Appeals should grant summary relief and no time limit was set for seeking enforcement. Such a direction is contained in present M.C.L.A. § 423.23(2)(d); M.S.A. § 17.454(25)(2)(d) but no time limit is set for seeking enforcement. Under former M.C.L.A. § 423.23(f); M.S.A. 17.454(25)(f), there was no time limit on filing a complaint for review. Present M.C.L.A. § 423.23(2)(e); M.S.A. § 17.454(25)(2)(e) places a time limit of 20 days on petitions for review and contains the following final sentence:

"If a timely petition for review is not filed under this subdivision by an aggrieved party, the commission or any prevailing party shall be entitled, upon application therefor, to a summary order enforcing the commission's order."

What does this quoted sentence mean? Since there is no time limit on filing petitions to enforce and there is now a 20-day time limit on petitions for review, we conclude that the sentence means that the Legislature intended to make sure that failure to file timely petitions to review had no bearing on petitions to enforce.

[73 MICHAPP 757] Under the amended statute, the Court of Appeals is to process petitions to enforce and timely petitions to review orders of MERC summarily on the record from MERC. The grant or denial of a petition to enforce depends on that record containing competent, material and substantial evidence supporting the order of MERC.

Turning to the question of granting or denying the enforcement order, we conclude that it should be denied because the Commission's decision and order is not supported by substantial, competent and material evidence on the whole record.

The administrative law judge, relying on previous MERC decisions, noted at the outset of his opinion that even if there were economic justification for the layoffs, if the layoffs were at least in part motivated by the employees' concerted actions to organize for improvement of their wages, hours and terms and conditions of employment, they would be unlawful in violation of § 8 of the Labor Mediation Act protecting the employees' right to engage in lawful concerted activities. Federal precedent supports this statement of the law. NLRB v. Whitin Machine Works, 204 F.2d 883 (CA 1, 1953).

However, the burden of proof is on the charging party. NLRB v. Federal Pacific Electric Co., 441 F.2d 765 (CA 5, 1971). If such evidence is in fact produced, the burden shifts to the employer to establish a justifiable reason for the layoff. Maphis Chapman Corp. v. NLRB, 368 F.2d 298 (CA 4, 1966). There is no question that economics may provide a justifiable reason for discharge. J. A. Hackney & Sons, Inc. v. NLRB, 426 F.2d 943 (CA 4, 1970).

It thus appears that it was defendant's burden to produce his bookkeeper or other qualified person to explain the books of account and establish economic justification for the layoffs. Although the [73 MICHAPP 758] books and records were in fact available at the second hearing, it was not the charging party's burden to introduce them. Accordingly, if the union established or introduced evidence to establish that the layoffs were at least in part unlawfully motivated, MERC's decision should be enforced.

However, it must be concluded that evidence of such unlawful motivation is either nonexistent or not substantial on the record taken as a whole. The administrative law judge concluded that the employer had laid off the employees "because they have concertedly asked for increased wages or benefits". No evidence in the record supports this conclusion. The evidence establishes only that two of the employees, Maupin and Harper, individually discussed the question of wages and benefits with defendant. An individual's complaint to his employer is considered "concerted activity" only if it can be considered a grievance filed pursuant to a collective bargaining agreement. MERC v. Reeths-Puffer School District, supra, 391 Mich. at 261 ff, 215 N.W.2d 672. Nothing prohibits an employer from discharging an "agitator" as defendant characterized Harper, even where the agitation relates to wages, hours, and terms and conditions of employment, unless the agitation was an effort to engage in concerted activity protected by the statute. Where the complaint is individualized, the activity can hardly be considered concerted. The finding of concerted activity is without support in the record.

Second, the administrative law judge, in findings adopted by the full Commission, concluded that the employees were laid off because of their activities on behalf of the charging union, in violation of § 16(3) of the Labor Mediation Act. The administrative law judge wrote:

"While the Employer denied knowledge of any Union [73 MICHAPP 759] activities at the time the employees were laid off, I find that the Employer did have such knowledge and that the only reasonable explanation for the abrupt layoffs was the developing intent of the union to organize the employees of the business. Brown admitted seeing the registered letters sent by the Union. Further, the refusal by the Employer to receive or acknowledge any mail or telephone...