Michigan Employment Relations Commission v. Detroit Symphony Orchestra, Inc., s. 11

• Decision Date: 04 May 1972
• Docket Number: Nos. 11,12,s. 11
• Citation: 387 Mich. 424,196 N.W.2d 763
• Parties: , 68 Lab.Cas. P 52,818 MICHIGAN EMPLOYMENT RELATIONS COMMISSION, Plaintiff-Appellant, v. DETROIT SYMPHONY ORCHESTRA, INC., a Non-Profit Michigan corporation, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 763

196 N.W.2d 763

387 Mich. 424, 68 Lab.Cas. P 52,818

MICHIGAN EMPLOYMENT RELATIONS COMMISSION, Plaintiff-Appellant, v. DETROIT SYMPHONY ORCHESTRA, INC., a Non-Profit Michigan

corporation, Defendant-Appellee.

Nos. 11, 12.

Supreme Court of Michigan.

May 4, 1972.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., Detroit, for plaintiff-appellant.

Dykema, Gossett, Spencer, Goodnow & Trigg, James D. Tracy, Brian M. Smith, Detroit, for defendant-appellee.

Kelman, Loria, Downing & Schneider, Detroit, for intervening petitioner-appellant.

Before the Entire Bench.

PER CURIAM.

The issue brought here by out order of June 15, 1971 (385 Mich. 755) turns upon constructional reading and proper application of section 423.23(e) of the labor mediation act, 1939 P.A. 176 (M.C.L.A. § 423.1; M.S.A. § 17.454(1)). Section 423.23(e) reads:

'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 taken and filed, and it shall file the modifying or new findings, which findings with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside its original order. Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the supreme court in accordance with the general court rules.'*

To understand the issue one must examine together: (a) the unreported order of Division 1 of the Court of Appeals, denying appellant MERC's petition for enforcement of its January 9, 1970 order against appellee Detroit Symphony Orchestra, Inc. ('by directing the respondent herein (Detroit Symphony) to reinstate Allen H. Chase with back pay and to fulfil its other requirements.'), and (b) the unreported dissent of participating Judge Levin.

The order of Division 1 is summary in form:

'In this cause a petition for order of enforcement of an order of the Michigan Employment Relations Commission having been filed pursuant to M.C.L.A. § 423.23 (Stat.Ann.1968 Rev. § 17.454(25)), by the State Attorney General, and a motion to intervene in support of the petition having been filed by the plaintiff, Allen H. Chase, and an answer in opposition to the petition having been filed by the defendant, Detroit Symphony Orchestra, Inc, and due consideration thereof having been had by the Court,

'It is ordered that the petition for order of enforcement be, and the same is hereby, denied for the reason that the findings of fact of the Michigan Employment Relations Commission Board are not supported by substantial evidence contrary to the statutory requirement of M.C.L.A. § 423.23 (Stat.Ann.1968 Rev. § 17.454(25)), and art. 6, § 28 of the Michigan Constitution of 1963, and

'It is further ordered that the motion to intervene be, and the same is hereby, dismissed as moot.'

Judge Levin's dissent is more lengthy. Addressed not to the merits but to an internal practice of the Court of Appeals, which he says has 'just 'grow'd", the Judge objects to treatment of petitions for enforcement under section 423.23(e) 'as applications for leave to appeal.' Pointing further to his Court's related practice of handling applications for leave 'as motions', the Judge proceeds:

'In my opinion, this motion cannot properly be decided without the judges themselves reading the record and transcripts. Since the record and transcript did not accompany the papers submitted to us, I asked the clerk's office to supply them and this was promptly done. They arrived on my desk on Tuesday, March 9, 1971. I was then sitting on calendared cases; the hearings concluded the following day.

'I write this on Thursday, March 11, 1971. The transcript has 360 pages; the documentary exhibits are relatively lengthy, the decision and order of the commission is 18 pages long, and there are other lengthy documents in the record. In view of the size of the task which confronts me and the pressure of other work, it is pointless now to painstakenly examine the...