Michigan State AFL-CIO v. Michigan Civil Service Com'n, AFL-CIO

CourtSupreme Court of Michigan
Writing for the CourtMICHAEL F. CAVANAGH; MALLETT, C.J., and BOYLE and MARILYN J. KELLY, JJ., concurred with MICHAEL F. CAVANAGH; BRICKLEY; RILEY and WEAVER, JJ., concurred BRICKLEY
Citation455 Mich. 720,566 N.W.2d 258
Parties, 155 L.R.R.M. (BNA) 3029 MICHIGAN STATE; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW) and its Local 6000; Michigan Council 25, American Federation of State County and Municipal Employees (AFSCME); Michigan Corrections Organization; Seiu Local 526-M; Michigan State Employees Association (MSEA); United Technical Service Employees International Union,, CLC, individually and on behalf of their members who are employees in the State classified civil service; Marilyn Laclair and Gloria Hajduk-Emmons, Plaintiffs-Appellants, v. MICHIGAN CIVIL SERVICE COMMISSION, Martha Bibbs, in her official capacity as State Personnel Director, and George G. Matish, in his official capacity as Director, Office of the State Employer, Defendants-Appellees. Calendar
Docket NumberAFL-CI,AFL-CIO,No. 5,Docket No. 102567,CLC
Decision Date01 August 1997

Page 258

566 N.W.2d 258
455 Mich. 720, 155 L.R.R.M. (BNA) 3029
MICHIGAN STATE AFL-CIO; International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO (UAW) and its Local 6000; Michigan Council
25, American Federation of State County and Municipal
Employees (AFSCME) AFL-CIO; Michigan Corrections
Organization; Seiu Local 526-M; Michigan State Employees
Association (MSEA); United Technical Service Employees
International Union, AFL-CIO, CLC, individually and on
behalf of their members who are employees in the State
classified civil service; Marilyn Laclair and Gloria
Hajduk-Emmons, Plaintiffs-Appellants,
v.
MICHIGAN CIVIL SERVICE COMMISSION, Martha Bibbs, in her
official capacity as State Personnel Director, and George G.
Matish, in his official capacity as Director, Office of the
State Employer, Defendants-Appellees.
Docket No. 102567.
Calendar No. 5.
Supreme Court of Michigan.
Argued April 8, 1997.
Decided July 31, 1997.
Released for Publication Aug. 1, 1997.

Page 259

[455 Mich. 722] Sachs, Waldman, O'Hare, Helveston, Bogas & McIntosh, P.C. by Andrew Nickelhoff and Theodore Sachs, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Deborah Anne Devine, Assistant Attorney General, Lansing, for defendants-appellees.

[455 Mich. 723] Robert A. Sedler and Paul Denenfeld, Detroit, for amicus curiae American Civil Liberties Union Fund of Michigan.

OPINION

MICHAEL F. CAVANAGH, Justice.

This is an appeal by the Michigan State AFL-CIO, challenging the validity of Civil Service Rule 1-5.7, modified effective July 14, 1988, prohibiting the use of union leaves of absence for partisan political activity. We hold that the revised rule violates both the political freedom act 1 enacted by the Michigan Legislature.

I

This case presents a rather long, factual and procedural history. In December 1987, the United Auto Workers-Community Action Program (UAW-CAP) and the Michigan Democratic Party sponsored a training seminar on election campaign strategies. The Office of the State Employer was given notice of the three-day seminar; however, it was unaware that the seminar would involve partisan political issues.

Fifty-six state employees who were members of the UAW Local 6000 attended the seminar. Thirty-seven employees used the union sponsored administrative leave buy-back program, under which the union reimbursed the state the net salary of the employees for the period of absence. Seventeen employees invoked the union officer leave, pursuant to a collective bargain, under which the union reimbursed the state for the gross total cost of the employee's wages and the

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employer's share of insurance premiums and retirement. One employee invoked the administrative leave [455 Mich. 724] bank 1, under which the employee suffered no loss of pay or benefits and one employee used his own time, which was not provided for under any leave arrangement.

In response to a letter from two Republican legislators, State Representative Frank Fitzgerald and Senator William Sederburg, the Civil Service Commission investigated the December 1987 meeting. As a result of the investigation, the commission issued a strong statement that partisan political activities are not to be engaged in by employees who are on administrative leave or who have been released from work under conditions specified for "union business" in bargaining agreements. The Department of Civil Service stated, "An employee using his or her authorized annual leave is not restricted, but annual leave used for partisan political purposes may not be 'bought back' under union business provisions...."

As a result of the controversy over the December 1987 meeting, the commission revised its rule relating to the activity prohibited during work hours. The old rule provided:

1-5.7 Prohibited During Work Hours.---

Activities permitted under sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty.[ 2

[455 Mich. 725] The new rule provides:

1-5.7 Prohibited During Work Hours.---

Activities permitted under sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty. Actual duty includes the employee's scheduled work hours and overtime. Off duty includes all time outside scheduled work hours and overtime, annual leave, unpaid leave of absence, lost time and leave granted to the employee to become a full time employee of an employee organization holding exclusive representation rights, pursuant to an approved collective bargaining agreement. For purposes of this rule, employees released from their regular state workplace for union activities, union business or any other employee organization purpose under any leave agreement, including "annual leave buy-back" provisions, shall be considered to be on actual duty, assigned by the employer to take part in union activities deemed to be in the best interests of the state and not including partisan political activity.

In response to the rule change, an objection was filed by every employee organization exclusively representing state classified employees, representing in the aggregate approximately seventy-two percent of [455 Mich. 726] the state classified work force, or roughly 44,600 individuals.

The employees' objections stemmed from the commission's exclusion of partisan political activities while on union leave, while allowing partisan political activities while on other types of leave. To fully understand the employees' objections, it is necessary to review the different types of leave of absences that are available to an employee:

1. Leave for Union Business. There are seven types of leave for union business. The employee is compensated by the state

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in whole or in part.[ 3

[455 Mich. 727] 2. Jury Duty Leave. The employee is granted administrative leave for jury duty, with full pay.

3. Time off for Court Appearances. The employee is entitled to administrative leave with full pay. However, if an employee appears in court in any capacity other than as a witness for the People, he or she will not be considered as being on duty, nor will administrative leave be granted.

4. Sick Leave. The employee may use accrued sick time, annual leave, or lost time to cover periods of approved medical absence. All sick leave must be approved by the employer.

5. Annual Leave. Initial annual leave is available upon approval of the employer, for such purposes of voting, religious observances, and necessary personal business.

6. Paid Leave. The employee is authorized to use paid leave for education and systematic improvement of knowledge or skills required in the performance of their work.

The State Personnel Director reviewed the objections filed by the employees; however, it found no basis for delaying the effective date of the enactment of the revised rule. Therefore, on July 14, 1988, the revised rule became effective.

The employee unions commenced the instant action in Wayne Circuit Court for a preliminary and permanent injunction restraining enforcement of revised Rule 1-5.7, and for declaratory relief. The parties filed cross-motions for summary disposition. On October 28, 1988, the circuit court granted summary [455 Mich. 728] disposition for plaintiffs. It ruled that the plaintiff employee organizations had standing to assert the claims and that the commission had exceeded its authority and violated the Michigan political freedom act. The trial court did not reach the constitutional issues raised in counts I and III of the complaint.

The commission appealed, and the Court of Appeals affirmed in part, reversed in part, and remanded the case for further proceedings. 191 Mich.App. 535, 478 N.W.2d 722 (1991) (hereinafter AFL-CIO I ). The Court of Appeals affirmed the ruling that plaintiffs had standing to seek a declaratory judgment. Id. at 544-549, 478 N.W.2d 722. However, it reversed the ruling that the revised rule violated the political freedom act. Plaintiffs argued that union leave is "off-duty" time that is beyond the scope of regulation by the Civil Service Commission. However, the Court rejected plaintiffs' characterization of union leave as "off-duty" time because Rule

Page 262

1-5.7 defines union leave time as "actual-duty." AFL-CIO I at 550-551, 478 N.W.2d 722. The Court stated that actual duty means on-the-job behavior related to job performance, including activities of classified employees during work hours for which they are being compensated.

The Court relied on Council No. 11, AFSCME v. Civil Service Comm., 408 Mich. 385, 408, 292 N.W.2d 442 (1980), in which this Court stated that "the commission's 'sphere of authority' delimits its rule-making power and confines its jurisdiction over the political activity of classified personnel to on-the-job behavior related to job performance." The Court of Appeals held that a prohibition against political activity by classified employees is permissible under the political freedom act if three conditions are satisfied:

[455 Mich. 729] (1) The classified employee receives some form of compensation for the time spent on leave,

(2) The employee would be performing duties at the usual job site if the employee were not on leave, and

(3) The employee is permitted to leave for a specific purpose approved by the employer. [AFL-CIO I, supra at 550, 478 N.W.2d 722.]

The Court concluded that the release of employees under union leave was part of the employees' duties for which they were compensated, therefore the union leave programs at issue did not implicate classified employees' off-duty activities. The Court remanded the case for consideration of plaintiffs' pending constitutional claims. Id. at 552, 478 N.W.2d 722.

The parties again filed cross-motions for summary disposition with respect to the constitutional claims. Judge Hausner...

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12 practice notes
  • Bauer v. Saginaw Cnty., No. 344050
    • United States
    • Court of Appeal of Michigan (US)
    • April 16, 2020
    ...is being compensated for the performance of that person's duties as a public employee.’ " Mich. State AFL-CIO v. Civil Serv. Comm. , 455 Mich. 720, 734, 566 N.W.2d 258 (1997), quoting MCL 15.404 (emphasis omitted). The act prohibits the government, as employer, from regulating 332 Mich.App.......
  • DiNicola v. State of Oregon, Dep't of Revenue, 07C14758; A138659.
    • United States
    • Court of Appeals of Oregon
    • November 9, 2011
    ...employee does not necessarily bring a person within the statutory prohibitions. In Michigan State AFL–CIO v. Michigan Civil Serv. Comm'n, 455 Mich. 720, 566 N.W.2d 258 (1997), the Michigan Supreme Court invalidated an administrative rule that, among other things, prohibited public employees......
  • City of Owosso v. Pouillon, Docket No. 236837.
    • United States
    • Court of Appeal of Michigan (US)
    • February 20, 2003
    ...quoting Michigan State AFL-CIO v. Civil Serv. Comm. (After Remand), 208 Mich.App. 479, 492, 528 N.W.2d 811 (1995), rev'd on other grounds 455 Mich. 720, 566 N.W.2d 258 (1997). In addition to prescribing reasonable time, place, and manner restrictions, the government remains free to impose "......
  • DiNicola v. State, 07C14758
    • United States
    • Court of Appeals of Oregon
    • November 9, 2011
    ...employee does not necessarily bring a person within the statutory prohibitions. In Michigan State AFL-CIO v. Michigan Civil Serv. Comm'n, 455 Mich 720, 566 NW2d 258 (1997), the Michigan Supreme Court invalidated an administrative rule that, among other things, prohibited public employees wh......
  • Request a trial to view additional results
12 cases
  • Bauer v. Saginaw Cnty., No. 344050
    • United States
    • Court of Appeal of Michigan (US)
    • April 16, 2020
    ...is being compensated for the performance of that person's duties as a public employee.’ " Mich. State AFL-CIO v. Civil Serv. Comm. , 455 Mich. 720, 734, 566 N.W.2d 258 (1997), quoting MCL 15.404 (emphasis omitted). The act prohibits the government, as employer, from regulating 332 Mich.App.......
  • DiNicola v. State of Oregon, Dep't of Revenue, 07C14758; A138659.
    • United States
    • Court of Appeals of Oregon
    • November 9, 2011
    ...employee does not necessarily bring a person within the statutory prohibitions. In Michigan State AFL–CIO v. Michigan Civil Serv. Comm'n, 455 Mich. 720, 566 N.W.2d 258 (1997), the Michigan Supreme Court invalidated an administrative rule that, among other things, prohibited public employees......
  • City of Owosso v. Pouillon, Docket No. 236837.
    • United States
    • Court of Appeal of Michigan (US)
    • February 20, 2003
    ...quoting Michigan State AFL-CIO v. Civil Serv. Comm. (After Remand), 208 Mich.App. 479, 492, 528 N.W.2d 811 (1995), rev'd on other grounds 455 Mich. 720, 566 N.W.2d 258 (1997). In addition to prescribing reasonable time, place, and manner restrictions, the government remains free to impose "......
  • DiNicola v. State, 07C14758
    • United States
    • Court of Appeals of Oregon
    • November 9, 2011
    ...employee does not necessarily bring a person within the statutory prohibitions. In Michigan State AFL-CIO v. Michigan Civil Serv. Comm'n, 455 Mich 720, 566 NW2d 258 (1997), the Michigan Supreme Court invalidated an administrative rule that, among other things, prohibited public employees wh......
  • Request a trial to view additional results

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