Michigan Labor Mediation Bd. v. National Music Camp, 42

• Decision Date: 04 May 1970
• Docket Number: No. 42,42
• Citation: 176 N.W.2d 588,383 Mich. 518
• Parties: , 74 L.R.R.M. (BNA) 2179 MICHIGAN LABOR MEDIATION BOARD, Plaintiff and Appellee, v. NATIONAL MUSIC CAMP, a Michigan corporation, and Interlochen Arts Academy, a Michigan corporation, defendants and Appellants.
• Court: Michigan Supreme Court

Page 588

176 N.W.2d 588

383 Mich. 518, 74 L.R.R.M. (BNA) 2179

MICHIGAN LABOR MEDIATION BOARD, Plaintiff and Appellee, v. NATIONAL MUSIC CAMP, a Michigan corporation, and Interlochen Arts Academy, a Michigan corporation, defendants and Appellants.

No. 42.

Supreme Court of Michigan.

May 4, 1970.

Frank J. Kelley, Atty. Gen. of the State of Michigan, Robert A. Derengoski, Solicitor Gen., Francis W. Edwards, John J. Long, Asst. Attys. Gen., Detroit, for plaintiff and appellee.

Murchie, Calcutt & Brown, by William R. Brown, Traverse City, for defendants and appellants; Miller, Johnson, Snell & Cummiskey, by James L. Stokes, Grand Rapids, of counsel.

Before the Entire Bench, except T. G. KAVANAGH, J.

KELLY, Justice.

A consent election was conducted by the Michigan Labor Mediation Board (hereinafter referred to as the Board) to determine whether certain employees of National Music Camp and Interlochen Arts Academy (hereinafter referred to as Interlochen) desired to be represented for collective bargaining purposes by Northwestern Michigan Building and Construction Trades Council, AFL-CIO, and the Hotel & Restaurant Employees and Bartenders International Union, Local 323, AFL-CIO.

Subsequent to the election the two Unions filed objections thereto claiming that certain pre-election activities and unfair labor practices on the part of Interlochen had improperly affected the election, and asking that the result of the election be set aside and that Interlochen be ordered to bargain with the Unions.

After a hearing conducted by the Board's trial examiner, the examiner issued his decision recommending 'that the Board enter an order setting aside the election conducted August 1, 1966, and directing a rerun election, because of the employer's improper conduct during the pre-election period,' and, also, recommending that Interlochen 'cease and desist from' certain specified actions and take specified 'affirmative action.'

On June 6, 1967, the Board entered its decision and order substantially adopting the recommendations of the trial examiner; directing the election be set aside, a new election be held, and ordering Interlochen to take steps to correct unfair labor practices.

The Board on July 24, 1967, received a letter from the attorneys for defendants which stated in part:

'We have determined that there is no change in position; that the employer will not comply with the Board's order of June 6, 1967.

'We appreciate your patience during the period of indecision. To save time and expense, you may advise the Attorney General's office that we will accept service for, and appear on behalf of, the employer in enforcement proceedings.'

The Attorney General, on behalf of the Board, on February 29, 1968, filed with the Court of Appeals a petition for enforcement of the Board's order and a brief in support thereof stating that the facts as found by the Board in its order were sustained by a record containing competent and substantial evidence; that Interlochen has refused to comply with the order and has notified the Board that it will not do so; that Interlochen had the right to review under sub-section (f) of section 23 of the act; ¹ and that 'their neglect or refusal to avail themselves of their statutory remedy, as above, precludes any complaint by them with reference to the substance of the Board's order.'

Interlochen filed its answer to the petition, alleging that the Board's decision was not supported by competent and substantial evidence and was contrary to law; that Interlochen's objections to the decision and order were urged before the Board, and a copy of said objections was attached to the petition; ² and 'that the petition for enforcement filed herein, in effect, seeks summary enforcement of the said decision and order without review of the issues of fact and law; that the proposed summary enforcement contravenes the applicable statute in that such proceeding would deprive this court of its statutory jurisdiction and authority.'

In addition to their answer, defendants filed a 'Brief in Opposition to Petition for Enforcement.' In this brief, defendants set forth in full sub- sections (e) and (f) of the applicable statute; ³ set forth reasons why a party aggrieved by the Board's order may file a complaint and obtain review under sub-section (f); emphasized the similarity between the wording of the Michigan statutory provisions applicable in the present issue with the language of the National Labor Relations Act ⁴ and why summary enforcement in the present proceeding would be inconsistent with the procedure under parallel statutes.

This 'Brief in Opposition to Petition for Enforcement' called attention to the fact defendants realized that, under the Labor Mediation Act, they were precluded from having the Court of Appeals consider any objections which had not been urged before the Board or its agent, but emphasized the fact that they had raised objections properly before the Board and its agent 'and that those issues are reserved for review in this proceeding,' and concluded this thought by stating:

'Respondents do not presume at this time to pursue all of the issues of fact and law. Respondents do call the court's attention to the fact that its objections were pursued in argument of fact and law in a brief submitted to the trial examiner appointed by the Board, and that the brief as submitted comprises a part of the record in this cause. Respondents' objections were summarized in respondents' exceptions filed with the Labor Mediation Board in accordance with its rules, a copy of which exceptions is incorporated in petitioner's brief herein.'

In a request for oral argument, defendants stated:

'The issues raised and the pleadings and record in this cause are without prior precedent, and procedural issues raised are of major significance to the jurisprudence of this State.'

No objections were filed by the Board to Interlochen's answer, nor did the Court of Appeals advise Interlochen that it considered the answer insufficient.

The Court of Appeals, without reference to Interlochen's request for oral argument, on May 16, 1968 (without opinion) issued its order that Interlochen 'comply forthwith with that part of the order of the Labor Mediation Board dated June 6, 1967, and entitled 'Order on Unfair Labor Practice Charges," stating that said order was issued because Interlochen failed 'to specify and findings of the Board with respect to questions of fact unsupported by competent, material and substantial evidence on the record considered as a whole, and which fails to specify any part of said order that is contrary to law.'

June 8, 1968, Interlochen filed its motion for rehearing, alleging:

'That the order of this court filed on the 20th (16th) day of May, 1968 fails to accord to respondents an opportunity to be heard on the respective allegations contained in and the issues raised by the petition and answer as filed; that, respondents, if permitted to do so, can produce meritorious argument, fact and legal precedent establishing that the order of the Michigan Labor Mediation Board dated June 6, 1967 is not supported by competent, material and substantive evidence on the record as a whole and is contrary to law.'

In a brief supporting its motion for rehearing, Interlochen called to the Court of Appeals' attention that 'the exact procedure in this matter is without precedent' and 'not adequately set forth in the General Court Rules'; that its answer, in the main, was addressed to the procedural issue, i.e., whether the Board was entitled to summary enforcement without inquiry into the merits; that it had assumed that the Board's petition initiated an original proceeding controlled by GCR 816.2, rather than an appeal; that 'the only analogous procedure known to respondents is that followed in the United States Circuit Court of Appeals on petition for enforcement of orders of the NLRB. ⁵ Such proceedings are taken under a statute basically similar to the enforcement provisions of the Michigan Labor Mediation Act'; that if Interlochen is given the opportunity, they will present to the Court of Appeals 'meritorious argument based upon the record.'

In this brief, Interlochen set forth reasons why the record did not justify the Board's finding that Interlochen had: (1) threatened to sub-contract work if its employees joined a union; (2) fired an employee to discourage others from joining the union; (3) endeavored to form its own 'Company Union,' or grievance committee, to thwart the efforts of its employees toward forming a union, and stated that...