Michigan Employment Relations Commission v. Detroit Symphony Orchestra, Inc., 14

Decision Date21 November 1974
Docket NumberNo. 14,14
Citation87 L.R.R.M. (BNA) 3095,393 Mich. 116,223 N.W.2d 283
PartiesMICHIGAN EMPLOYMENT RELATIONS COMMISSION, Plaintiff, Allen H. Chase, Intervening Plaintiff-Appellant, v. DETROIT SYMPHONY ORCHESTRA, INC., a non-profit Michigan corporation, Defendant-Appellee. 393 Mich. 116, 223 N.W.2d 283, 87 L.R.R.M. (BNA) 3095, 76 Lab.Cas. P 53,597
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards (P13108), Asst. Atty. Gen., Detroit, for plaintiff and cross-appellant.

Robert W. Howes, Detroit (P23191), for Kelman, Loria, Downing, Schneider & Simpson, Detroit, for intervening plaintiff-appellant.

James Tracey, Detroit (P21531), Dykema, Gossett, Spencer, Goodnow & Trigg, James D. Tracy, William S. Hurst, Detroit, for defendant-appellee.

Francis Edwards, Detroit (P13108), for plaintiff, Michigan Employment Relations Commission.

Before the Entire Bench (Except WILLIAMS and LEVIN, JJ.)


The principal question before us is whether the Court of Appeals erred in reversing a determination of the Michigan Employment Relations Commission Board in favor of plaintiff-appellant Chase on the ground that the findings of fact of the Board were not supported by substantial evidence. We conclude that the Court of Appeals correctly applied the 'substantial evidence' standard and affirm.


It is the position of plaintiff Allen Chase that he lost his employment with the Detroit Symphony Orchestra because of his continued participation in union organizational activities contrary to M.C.L.A. § 423.16; M.S.A. § 17.454(17). Undisputed evidence introduced at an evidentiary hearing held before a trial examiner of the Labor Mediation Board indicates that plaintiff's 'discharge' 1 by the Symphony is traceable to events occurring on February 27, 1968 and shortly thereafter.

The master contract governing relations between the Detroit Symphony Orchestra and the Detroit Federation of Musicians, plaintiff Chase's union, provided that employment contracts should be signed and in by March 1, 1968. Past practice indicated, however, that the Symphony had not always strictly adhered to this cutoff date. Early in February 1968, Chase, a trombonist for many years with the Symphony, was offered a one-year contract of employment. On February 27, Chase approached Bistritzky, personnel manager of the Symphony and a union-management agent, and Harrington, general manager of the Symphony, to 'negotiate' his contract. He was offered a $10 per week raise and rejected it out of hand, stating, 'Get yourself another boy. I do not accept.' When contacted shortly thereafter by Bistritzky, Chase indicated that he had not changed his mind. On March 1, 1968, Bistritzky informed the union that Chase's position was vacant.

Chase later contacted Bistritzky on March 2, 1968 and at that point was informed that the Symphony was auditioning another trombonist for his position. He then stated that he accepted the offer only to learn from Bistritzky that in the Symphony's view the offer had been withdrawn. A series of events ensued which entailed Chase's reapplication for employment with the Symphony and the eventual hiring of another trombonist. Chase introduced evidence in an effort to show that the Symphony's actions in failing to hire him were discriminatory and attributable to anti-union animus.

Joseph Bixler, the trial examiner presiding at the evidentiary hearing, concluded after a lengthy recitation and discussion of the facts:

'There is not sufficient evidence in this record to establish that the orchestra discriminated against Chase in violation of the Act. * * * Chase quit the Orchestra when he rejected the contract and the offered raise with the abrupt 'get yourself another boy."

He therefore recommended that the charges be dismissed. The MERC Board disagreed with the findings of its examiner, concluding:

'* * * the Symphony applied the March 1 cut-off discriminatorily with respect to Chase.';


'(T)he only plausible reason for the Symphony's discriminatory treatment of Chase is his union activity.'

The Court of Appeals initially refused to enforce the order of the MERC Board in favor of Chase, concluding in an order of that Court that the Board's findings of fact were not supported by substantial evidence. Upon further review, this Court (387 Mich. 424, 196 N.W.2d 763 (1972)) determined that the decisional process employed by the Court of Appeals had been 'unsound' and remanded for further consideration and preparation of a full opinion. Upon remand the Court of Appeals again denied enforcement to the order of the MERC Board, reiterating, in an unpublished per curiam opinion containing discussion of the facts, that Court's view that the Board's finding of facts were not supported by substantial evidence. 2 The case is before us on leave granted.


The standard of appellate review of MERC Board findings of fact is set forth in the labor mediation act as follows:

'* * * 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. * * *' M.C.L.A. § 423.23(e); M.S.A. § 17.454(25)(e).

This standard comports with Const.1963, art. 6, § 28, which sets forth the minimum constitutional scope of judicial review of administrative decisions.

'All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, In cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. * * *' (Emphasis supplied.) 3

The Court of Appeals reversed findings of fact of the MERC Board which were supported by some record evidence. In this context, the meaning of the above-cited 'substantial evidence' standard is critical to the outcome of this appeal. To ascertain this meaning we turn to the debates surrounding the adoption of art. 6, § 28, at the Constitutional Convention of 1961.

Art. 6, § 28 was originally introduced at the Convention in slightly different form as 'Proposal 95' of the Committee on Judicial Branch. 4 During extensive debate on March 5, 1962, Delegate Krolikowski, speaking on behalf of the committee, stated:

"Substantial evidence' (as that term was used in the Proposal) means such evidence as a reasonable mind will accept as adquate (sic) to justify conclusion. 'On the whole record' means that the reviewing magistrate can consider all the evidence in favor and all the evidence against a certain determination.'

Delegates Everett and King, whose statements reflected the position of proponents of the proposal favoring meaningful court review, respectively elaborated:

'I would like to give you the background of this proposal. To begin with, there were delegate proposals, and they went much further than this. Many of us who sat in the judicial committee felt a need for judicial review, but not the type of review and the extensive review that some of the delegate proposals offered. * * * '* * * We developed within the committee, * * * language which we felt would hit a medium between a review which would be so extensive as to make administrative agencies' work virtually useless, and a review such as we frequently now have which makes court review meaningless;


'The idea here is to get full, fair, honest to goodness judicial review, not de novo. * * * Just a review on the record. * * * I'm not saying it won't cause an increase in the amount of judicial work in this state, but I never maintained that justice was cheap.' 5

Opponents of the proposal were very concerned that setting forth the contemplated standard of review would promote judicial factfinding at the expense of the administrative process. Delegate Nord, speaking for the opposition, stated in debate on March 6, 1962:

'With the proposal that we have before us, Committee Proposal 95 * * *, it seems clear to me that we open the door for every single case, every determination by any administrative board, to be subjected to a review. Not just some cases, but every case. Because there are enough words in that last sentence to make it an easy thing for a lawyer to pick on one of them. Is the evidence reliable? That is a question of fact. That could be one way or the other. That could be reviewed. Is the evidence probative? Is it substantial? Those kinds of questions would make it an automatic appealable case in every single case. And, if we have that, we have really lost the use of administrative procedure.'

Persistent pleas by Delegate Nord and his fellow members of the opposition failed to persuade a majority that the proposal was unwise. The opposition's efforts to amend and strike significant portions of Proposal 95 failed and on March 6, 1962, the proposal was referred, intact, to the Committee on Styling and Drafting. After minor amendment, the present text of here-pertinent provisions of art. 6, § 28, was approved by an 86--32 vote of the Committee of the Whole on April 23, 1962. 6 The ultimate adoption of art. 6, § 28, came on August 1, 1962. 7

The cross-fire of debate at the Constitutional Convention imports meaning to the 'substantial evidence' standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record--that is, both sides of the record--not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of De novo review, it necessarily entails a degree of qualitative and quantitative evaluation of...

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