Mount Pleasant Pub. Sch. v. Mich. Afscme Council 25, Afl-Cio

• Decision Date: 15 October 2013
• Docket Number: Nos. 304326,304342.,s. 304326
• Citation: 840 N.W.2d 750,302 Mich.App. 600
• Parties: MOUNT PLEASANT PUBLIC SCHOOLS v. MICHIGAN AFSCME COUNCIL 25, AFL–CIO, and its Affiliated Local 2310. Lakeview Community Schools v. Lakeview Educational Support Personnel Association/MEA/NEA.
• Court: Court of Appeal of Michigan — District of US

302 Mich.App. 600

840 N.W.2d 750

MOUNT PLEASANT PUBLIC SCHOOLS

v.MICHIGAN AFSCME COUNCIL 25, AFL–CIO, and its Affiliated Local 2310.

Lakeview Community Schools

v.Lakeview Educational Support Personnel Association/MEA/NEA.

Nos. 304326, 304342.

Court of Appeals of Michigan.

Submitted Oct. 8, 2013, at Lansing.

Decided Oct. 15, 2013, at 9:00 a.m.

Thrun Law Firm, PC, East Lansing (by Donald J. Bonato) for Mount Pleasant Public Schools.

Miller Cohen, PLC, etroit (by Robert D. Fetter), for Michigan AFSCME Council 25, AFL–CIO, and its affiliated Local 2310.

Varnum LLP, Grand Rapids (by John Patrick White) for Lakeview Commmunity Schools.

Kalniz, Iorio & Feldstein Co., LPA, (by Fillipe S. Ioria), for Lakeview Educational Support Personnel Association/MEA/NEA.

Before: SERVITTO, P.J., and WHITBECK and OWENS, JJ.

PER CURIAM.

This matter involves a consolidated appeal from the Michigan Employment Relations Commission (MERC). In Docket No. 304326, the charging party, Michigan AFSCME Council 25, AFL–CIO, and its affiliated Local 2310 (AFSCME), appeals as of right the MERC's order dismissing its unfair labor practice charge against Mount Pleasant Public Schools (Mt. Pleasant). In Docket No. 304342, the charging party, Lakeview Educational Support Personnel Association/MEA/NEA (LESPA), appeals as of right the MERC's order dismissing its unfair labor practice charge against Lakeview Community Schools (Lakeview). The MERC reviewed the cases together and determined that the respondents did not breach their duty to bargain under the public employment relations act (PERA), MCL 423.210(1)(e), when they refused to bargain over procedures for bidding on the subcontracting of noninstructional support services pursuant to section 15(3)(f) of PERA, MCL 423.215(3)(f). We affirm the MERC's order in both appeals.

I. FACTS

A. DOCKET NO. 304326

On March 15, 2010, Mt. Pleasant issued a request for proposal (RFP) for professional cleaning services for many of the locations within the district, including those already staffed by AFSCME 2310 members. AFSCME demanded to negotiate the bidding procedure, but Mt. Pleasant denied its request. AFSCME filed a charge against Mt. Pleasant, alleging that it had violated sections 10(1)(e), 15(1)(e), and 15(3)(f) of PERA, in that it was denied an equal opportunity to bid on professional cleaning services. AFSCME alleged that Mt. Pleasant had failed to bargain in good faith, even though it was mandatory.

The hearing officer issued an order to show cause why the charge should not be dismissed without a hearing. Specifically, the order noted that section 15(3)(f), of PERA as amended by 1994 PA 112, does not require a school district to bargain with a labor organization over the subcontracting of noninstructional support services.Rather, the order recognized that it only requires that the school district give the bargaining unit “an opportunity to bid on the contract for the noninstructional support services on an equal basis as other bidders.” See section 15(3)(f) of PERA, as amended by 2009 PA 201. The order also made it clear that the current section 15(3)(f) does not make bidding for the subcontracting of noninstructional support services a mandatory subject of bargaining.

AFSCME responded to the order to show cause, arguing that it was denied an opportunity to bid on an equal basis because the RFP required the bidders to be a corporation that has been in business for at least 5 years, and the union could not meet these requirements. Also, AFSCME argued that most of the provisions in the RFP were impossible for the union to comply with. AFSCME argued that the section 15(3)(f) language, as amended by 2009 PA 201, which prohibited from bargaining “the procedures for obtaining the contract for noninstructional support services other than bidding described in this subdivision,” excluded the procedures for providing a bid on an equal basis as one of the prohibited subjects of bargaining. Further, AFSCME interpreted section 15(3)(f) to state that if the union was not provided with an opportunity to bid on an equal basis, then subcontracting is no longer a prohibited subject of bargaining.

B. DOCKET NO. 304342

On January 22, 2010, Lakeview provided prospective bidders with an RFP to notify them that it was seeking bids for student transportation services. On January 25, 2010, LESPA submitted a demand to bargain the bidding-process terms, which Lakeview declined. LESPA then submitted a “renewed” demand to bargain the bidding-process terms, as well as a demand to bargain the decision and effects of subcontracting transportation, which Lakeview also declined.

On March 8, 2010, LESPA filed a charge against Lakeview, alleging that Lakeview violated sections 10(1)(a), 10(1)(c), and 10(1)(e) of PERA in that it had denied LESPA the opportunity to bid on a transportation contract on an equal basis as other bidders, and had refused to bargain.

The hearing officer also issued an order to show cause that contained identical language to that of the order issued to AFSCME with regard to the interpretation of section 15(3)(f). LESPA responded to the order to show cause, arguing that the recent amendment to section 15(3)(f) restored the rights of the parties to collectively bargain over the subcontracting of noninstructional support services. LESPA argued that bidding is now a mandatory subject of bargaining. Further, LESPA asserted that the collective bargaining prohibition on other aspects of subcontracting, such as the decision and impacts of subcontracting, is not applicable if a bargaining unit is not given an equal opportunity to bid. LESPA argued that it was not given an equal opportunity to bid because the RFP provided that the bidding was limited to independent contractors with at least five years of experience, and the union could not meet these requirements.

C. THE MERC DECISION

A formal hearing was held by the hearing officer in which the cases were consolidated. The hearing officer determined that the prohibition on bargaining over subcontracting “continues to apply as long as the bargaining unit is given an opportunity to bid on the contract on an equal basis as other bidders.” Following the hearing and after considering the parties' exceptions to the hearing officer's findings, the MERC accepted those findings, and issued an order dismissing both of the charging parties' unfair labor practice charges. The MERC stated the following:

The 2009 amendment to Section 15 expressly prohibits bargaining over the procedures for obtaining a contract for noninstructional support services. The exemption asserted by Charging Parties does not apply to bidding in general. It applies to “the bidding described in this subsection.” The bidding described in subsection 15(3)(f) is the “opportunity to bid on the contract for the noninstructional support services on an equal basis as other bidders.” Giving due consideration to the general purpose of the 1994 and 2009 amendments to Section 15 of PERA, we find that the only issue to be bargained with regard to bidding is whether the bargaining unit is to be given an opportunity to bid on an equal basis as other bidders. If a public school employer fails to give the bargaining unit an opportunity to bid on an equal basis as other bidders, the prohibitions of subsection 15(f) [sic] are removed. If the bargaining unit is given an equal opportunity to bid, bargaining over other procedures for obtaining the contract, including the procedures for bidding, is prohibited.

The MERC further stated that, contrary to the charging parties' argument, it is to be expected that the RFP will be designed for third-party contractors and the bargaining units will be required to meet some of those requirements. The MERC noted that the statute “provides for an equal bidding opportunity, not one that is designed for response by a bargaining unit or a labor organization.” Finally, the MERC concluded that because the charging parties did not submit proper bids, they could not complain that they were not given an equal opportunity to bid.

The charging parties filed these appeals, arguing that the MERC (1) misinterpreted section 15(3)(f) of PERA; (2) erroneously shifted the burden of proof to the charging parties to demonstrate that they were not provided with an equal opportunity to bid; and (3) failed to support its findings with competent, material, and substantial evidence. In addition, AFSCME argued that the MERC erroneously denied its motion to reopen the record.

II. INTERPRETATION OF MCL 423.215(3)(F)

First, the charging parties argue that the MERC misinterpreted MCL 423.215(3)(f). We disagree. Questions of statutory interpretation are reviewed de novo. Macomb Co. v. AFSCME Council 25 Locals 411 & 893, 494 Mich. 65, 77, 833 N.W.2d 225 (2013). “As a result, an administrative agency's legal rulings are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law.” Id. (quotation marks and citation omitted).

In In re Harper, 302 Mich.App. 349, 354–355, 839 N.W.2d 44 (2013), this Court recently provided the foundation for reviewing questions of statutory interpretation:

The “primary goal” of statutory interpretation “is to discern the intent of the Legislature by first examining the plain language of the statute.” Driver v. Naini, 490 Mich. 239, 246–247, 802 N.W.2d 311 (2011). A statutory provision must be read in the context of the entire act, and “every word or phrase of a statute should be accorded its plain and ordinary meaning.” Krohn v. Home–Owners Ins. Co., 490 Mich. 145, 156, 802 N.W.2d 281 (2011). When the language is clear and unambiguous, “no further judicial construction is required or permitted, and the statute must be enforced as written.” Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002) (quotation marks and citation omitted). Only when the statutory language is ambiguous may a court consider evidence...