Organization of School Adm'rs and Sup'rs AFSA, AFL-CIO v. Detroit Bd. of Educ., AFL-CI

• Decision Date: 27 March 1998
• Docket Number: Docket No. 192852,AFL-CI,P
• Citation: 229 Mich.App. 54,580 N.W.2d 905
• Parties: , 158 L.R.R.M. (BNA) 2107 ORGANIZATION OF SCHOOL ADMINISTRATORS AND SUPERVISORS, AFSA,laintiff-Appellant/Cross-Appellee, v. DETROIT BOARD OF EDUCATION, Respondent-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 905

580 N.W.2d 905

229 Mich.App. 54, 158 L.R.R.M. (BNA) 2107

ORGANIZATION OF SCHOOL ADMINISTRATORS AND SUPERVISORS, AFSA AFL-CIO, Plaintiff-Appellant/Cross-Appellee, v. DETROIT BOARD OF EDUCATION, Respondent-Appellee/Cross-Appellant.

Docket No. 192852.

Court of Appeals of Michigan.

Submitted May 13, 1997, at Detroit.

Decided March 27, 1998, at 9:05 a.m.

Released for Publication July 14, 1998.

Mark H. Cousens, Southfield for Charging Party-Appellant/Cross-Appellee.

Riley and Roumell, P.C. by George T. Roumell, Jr., and Gregory T. Schultz, Detroit, for Respondent-Appellee/Cross-Appellant.

Before MARKEY, P.J., and JANSEN and WHITE, JJ.

WHITE, Judge.

The charging party, Organization of School Administrators and Supervisors, AFSA, AFL-CIO (OSAS), appeals from an order of the Michigan Employment Relations Commission (MERC) ¹ dismissing the unfair labor practice charges it brought against respondent, Detroit Board of Education. The OSAS argues that the MERC erred in concluding that respondent did not violate its statutory duty to bargain by unilaterally reducing rates of pay and hours of work for certain school administrators and that the MERC erred in failing to exercise its statutory jurisdiction and deferring to arbitration the OSAS's charge relating to respondent's unilateral reduction of rates of pay. Respondent cross appeals from the same order, arguing that the MERC erred in finding that the hours at issue were not overtime.

We conclude that the MERC did not err in finding no unfair labor practice with regard to respondent's limiting the work hours of the adult education department heads and allegedly changing their compensation. However, we vacate the MERC's finding that the adult education department heads' evening work was not overtime, because the OSAS's counsel conceded the contrary during oral argument before this Court. ² We affirm the MERC's conclusion that respondent had no duty to bargain regarding the reduction of hours of the vocational-technical administrators' evening work. Regarding the MERC's disposition of the OSAS's charge based on a unilateral change in the method of compensating the vocational-technical administrators' evening work, from a per diem to hourly rate, we remand with instructions that the MERC address this issue anew and provide a clear explanation for its decision that there was no unfair labor practice. Regarding respondent's cross appeal, we conclude that the MERC's finding that the vocational-technical administrators' evening hours were not overtime was supported by competent, material, and substantial evidence on the whole record.

I

Respondent operates an adult education program consisting of a vocational-technical training component, which teaches job skills, and an adult basic education component, which teaches basic skills such as reading and math, leading to a high school equivalency diploma. The adult basic education courses are taught principally at night, at numerous sites throughout the city of Detroit. The vocational-technical courses are taught at respondent's three vocational centers.

The OSAS is the bargaining agent for supervisors and administrators employed by respondent, including those responsible for supervision of the teachers in the vocational-technical and adult basic education programs. At pertinent times, there were three principals responsible for the vocational-technical program; seven department heads responsible for the adult basic education program; and two central office administrators responsible for the overall operation of both programs.

The collective bargaining agreement in effect at the time of this dispute covered the period between July 1, 1992, and June 30, 1994. In December 1993, the state Legislature reorganized school funding, cutting adult education funding in Detroit by about fifty-three percent and making student eligibility more stringent.

On January 7, 1994, Dr. Arthur Carter, respondent's deputy superintendent of government relations and community services, who was responsible for the adult education program, sent a memo to the directors of adult education stating that the budget had been reduced, projections indicated a deficit may exist in the current year in adult education, and there would be further reductions the next year. The memo stated that effective January 20, 1994, there would be a fifty percent reduction in hours for all administrative staff working for adult education in an additional assignment capacity and that all such staff would be paid at the hourly department-head rate. After the OSAS requested bargaining, the parties met on February 15, 1994. After the meeting, Dr. Carter rescinded his January memo. He issued a new memo on February 17, 1994, stating that it superseded "all previous communications regarding administrative schedules and working hours." The February memo stated that effective February 28, 1994:

1. All vocational/technical administrators will be paid for no more than 24 hours biweekly at the department head rate. Schedules should be adjusted to allow for sufficient administrative coverage....

* * * * * *

3. No administrator or teacher in adult education will be paid for overtime unless approved, in writing, by me. I strongly discourage all overtime.

The parties met again on March 2, 1994, and discussed the issue of "overtime" for the vocational-technical administrators. No resolution was reached, and the parties agreed to meet again.

The OSAS filed an unfair labor practice charge against respondent on March 4, 1994, alleging violations of the public employment relations act (PERA), M.C.L. § 423.201 et seq.; M.S.A. § 17.455(1) et seq. The charge stated that the vocational-technical administrators worked on a full-time basis as building officials, while working part-time as administrators of the evening vocational-technical program, and that "[s]chedules have typically required these administrators to supervise programs on a daily basis, usually approaching 24 hours per week." The charge further stated that the OSAS and the board had been bargaining to replace an agreement scheduled to expire June 30, 1994, and that issues discussed had included hours to be worked and rates of pay for vocational-technical administrators. The charge stated that the parties were involved in preliminary bargaining and that neither party had suggested that an impasse existed. Finally, the charge stated, in part:

7. Notwithstanding the pendency of bargaining, and the absence of any impasse, on February 17, 1994 the Board unilaterally capped the number of hours a vocational/technical administrator might work. The change was made without prior consultation with or agreement of the Union.

8. The unilateral change violates the Act for the reason that:

A. The change was unilateral. The Union neither approved nor consented to the modification.

B. The change was commenced absent impasse or any warning that the change might be imposed.

C. The change was imposed without initiating or exhausting dispute resolution procedures available under the Act.

D. The change was initiated although the Union had demanded bargaining on the issue, the parties had not reached a conclusion to that process.

The OSAS's unfair labor charge did not mention the adult education department heads.

The parties met again on April 27, 1994. Subsequently, the parties met for the purpose of negotiating the successor collective bargaining agreement on May 10, 19, 24, and June 22, 1994. The OSAS did not raise the issue of overtime or supplemental pay at any of the May and June meetings. The parties reached a settlement on the successor agreement on June 22, 1994, and a new contract was ratified, which did not contain any modifications regarding the issues presented here.

Respondent filed its answer on October 7, 1994. ³ Respondent denied that bargaining was in a preliminary state, stating that "a new agreement has been reached covering all issues between the parties; that any claim here has been waived by the Charging Party, having had the opportunity to bargain concerning same." ⁴ Respondent denied that it had unilaterally capped the vocational-technical administrators' evening hours, stating that it had bargained "even prior to bargaining over negotiations of the new contract [and] that all issues between the parties have been settled." Respondent denied that the change in hours violated § 10 of the PERA, M.C.L. § 423.210; M.S.A. § 17.455(10), stating that it was "exercising its right to determine when, how, and where delivery of services should be made and to determine and control overtime."

A three-day hearing was held, after which the hearing referee recommended that the charges be dismissed in their entirety:

The question presented here is whether an Employer may change or eliminate supplemental employment without first bargaining to impasse or agreement with a Union representing these employees in their regular assigned employment.

It is concluded that the Detroit Board of Education had the right to assign, reassign or eliminate additional overtime, supplemental (or by whatever terminology) assignments in the Adult Education Program without bargaining with the Charging Party to impasse or agreement. These assignments are not the bargaining unit work that is contemplated in the collective bargaining agreement. There was no impact on bargaining unit work.

* * * * * *

The Employer met and bargained the impact of its decision. The Charging Party had ample opportunity to discuss these events during the period of negotiations for a successor collective bargaining agreement, but chose not to do so because, as the Union states, it would have been futile. Whether or not the Employer met individually with the employees affected by the additional work cuts is immaterial, as the subject matter is not a mandatory subject of bargaining.

The MERC affirmed the hearing referee's conclusion that respondent did not...