Schoolcraft College Ass'n of Office Personnel/MESPA v. Schoolcraft Community College

• Decision Date: 28 April 1987
• Docket Number: Docket No. 84473
• Citation: 156 Mich.App. 754,401 N.W.2d 915,125 L.R.R.M. (BNA) 3485
• Parties: SCHOOLCRAFT COLLEGE ASSOCIATION OF OFFICE PERSONNEL/MESPA, Charging Party- Appellant, v. SCHOOLCRAFT COMMUNITY COLLEGE, Respondent-Appellee. 156 Mich.App. 754, 401 N.W.2d 915, 125 L.R.R.M. (BNA) 3485, 38 Ed. Law Rep. 323
• Court: Court of Appeal of Michigan — District of US

Page 915

401 N.W.2d 915

SCHOOLCRAFT COLLEGE ASSOCIATION OF OFFICE PERSONNEL/MESPA Charging Party- Appellant, v. SCHOOLCRAFT COMMUNITY COLLEGE, Respondent-Appellee.

Docket No. 84473.

156 Mich.App. 754, 401 N.W.2d 915, 125 L.R.R.M. (BNA) 3485,

38 Ed. Law Rep. 323

Court of Appeals of Michigan.

Submitted Feb. 12, 1986.

Decided Dec. 16, 1986.

Released for Publication March 24, 1987.

Leave to Appeal Denied April 28, 1987.

[156 MICHAPP 756] Hiller, Larky & Hoekenga by Daniel J. Hoekenga and Marc M. Susselman, Southfield, for charging party-appellant.

Butzel, Long, Gust, Klein & Van Zile by Gregory S. Muzingo and Claudia V. Babiarz, Detroit, for respondent-appellee.

Before KELLY, P.J., and WALSH and WAHLS, JJ.

WAHLS, Judge.

This appeal arises out of an unfair labor practice charge against a college. We affirm the decision of the Michigan Employment Relations Commission and find that the college has no duty to bargain a managerial decision to lay off union employees, no unfair labor practice occurred when the college placed union employees whose positions were eliminated into other positions, MERC did not err in holding that the evidence did not prove that the college unilaterally transferred bargaining unit work to nonunit employees, and there was no impermissible interference with union members' exercise of their rights under the public employment relations act (PERA).

The facts are as follows. The charging party, the Schoolcraft College Association of Office Personnel, Michigan Educational Support Personnel Association (union), the duly recognized bargaining agent for all full-time office/clerical employees of respondent, Schoolcraft Community College, had a collective bargaining agreement effective from July 1, 1981 through June 30, 1983. The parties' collective bargaining agreement stated in art. IV, Sec. 2, that respondent's board has the sole right to hire all employees, as well as the right to promote, [156 MICHAPP 757] assign, transfer, evaluate, suspend, lay off and dismiss such employees. Due to decreases in state appropriations to the college, respondent proposed a wage freeze to the union rather than laying off employees for budgetary reasons. The union rejected the proposal. Respondent began the process of eliminating positions and laying off employees.

The union has asserted several issues, all of which have been restated for clarity.

I

The union argues that MERC erroneously found that respondent did not have a duty to bargain its decision to lay off the union's employees because the finding is not supported by competent, material, and substantial evidence in the record. Furthermore, the union argues that the decision was legally erroneous. We disagree.

MERC has exclusive jurisdiction over claims of unfair labor practices pursuant to M.C.L. Sec. 423.216; M.S.A. Sec. 17.455(16); Michigan Law Enforcement Union v. Highland Park, 138 Mich.App. 342, 348, 360 N.W.2d 611 (1984), rev'd on other grounds, 422 Mich. 945, 374 N.W.2d 678 (1985). Section 106 of the Administrative Procedures Act, M.C.L. Sec. 24.306; M.S.A. Sec. 3.560(206), dictates the appellate scope of review for agency decisions. Ron's Last Chance, Inc. v. Liquor Control Comm., 124 Mich.App. 179, 181, 333 N.W.2d 502 (1983).

That section provides:

(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

* * *

[156 MICHAPP 758] "(d) Not supported by competent, material and substantial evidence on the whole record.

* * *

"(f) Affected by other substantial and material error of law.

"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings."

MERC's finding of fact regarding an unfair labor practice, if supported by competent, material, and substantial evidence when reviewing the record as a whole, shall be conclusive. M.C.L. Sec. 423.216; M.S.A. Sec. 17.455(16). Substantial evidence is defined as more than a scintilla but substantially less than a preponderance of the evidence. Tocco v. Marquette Prison Warden, 123 Mich.App. 395, 333 N.W.2d 295 (1983); Ron's Last Chance, supra, 124 Mich.App. 182, 333 N.W.2d 502.

This Court may review the law regardless of the factual findings of the commission. Mid-Michigan Education Ass'n (MEA-NEA) v. St. Charles Community Schools, 150 Mich.App. 763, 389 N.W.2d 482 (1986). "Review of MERC's findings must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and do not invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably different views." MEA-NEA, supra, 768, 389 N.W.2d 482. Lastly, our review of a final agency determination is limited to the record; final decisions must include findings of fact and conclusions of law. Human Rights Party v. Michigan Corrections Comm., 76 Mich.App. 204, 256 N.W.2d 439 (1977), lv. den. 402 Mich. 906 (1978).

The controlling case is Local 1277, AFSCME v. Centerline, 414 Mich. 642, 653, 327 N.W.2d 822 (1982), in which the Court explained that Michigan[156 MICHAPP 759] has adopted the federal courts' approach to a mandatory subject of bargaining for disputes involving the public sector. Central Michigan University Faculty Ass'n v. Central Michigan University, 404 Mich. 268, 277, 273 N.W.2d 21 (1978). Only mandatory subjects involve a duty to bargain in good faith pursuant to Sec. 15 of the PERA, M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15). The Court then held that the decision to lay off is not a mandatory subject of bargaining, but a managerial decision. However, there is a duty to bargain regarding the impact of that decision. Local 1277 AFSCME, supra, 414 Mich. 661, 327 N.W.2d 822. See, e.g., Local 586, SEIU v. Village of Union City, 135 Mich.App. 553, 556, 355 N.W.2d 275 (1984), lv. den. 421 Mich. 857 (1985).

In discussing several cases from other state forums, the Court identified the impact of layoffs to mean the work load and safety of remaining workers or whether seniority is a basis for layoffs. The Court approvingly cited City of Brookfield v. Wisconsin Employment Relations Comm., 87 Wis.2d 819, 833, 275 N.W.2d 723 (1979), holding that a budgetary layoff decision was not a mandatory subject of bargaining. If it were a mandatory subject of bargaining, the equal balance of power that insures a union's collective bargaining rights and protects the general public's rights to determine the quality and level of municipal services they consider vital, would be destroyed. Local 1277, AFSCME, supra, 414 Mich. 662-663, 327 N.W.2d 822.

Here, respondent offered the union two proposed addendums to their collective bargaining agreement. These were given in an attempt to reopen bargaining regarding wages, a mandatory subject of bargaining. M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15); Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 54-57, 214 N.W.2d 803 (1974); Ottawa County v. Jaklinski, 423 Mich. 1, 12, 377 N.W.2d 668 (1985). The [156 MICHAPP 760] union rejected the proposals. Respondent warned the union that its only alternative was a layoff which they had a right to do under the collective bargaining agreement. Therefore, the budgetary layoffs were within the managerial rights of respondent. As stated above, the impact of the layoff on remaining employees is a mandatory subject of bargaining. However, we have reviewed the record and find the impact to be minimal.

The union claims that respondent lied regarding its inability to pay the contractual wage increases and, because the "lie" involved a mandatory subject of bargaining, respondent violated its duty to bargain in good faith, thus committing an unfair labor practice. However, because the Supreme Court approvingly stated that budgetary layoffs are a managerial decision, Local 1277, AFSCME, supra, 414 Mich. 662-663, 327 N.W.2d 822, rather than a bargaining decision, respondent was not required to prove its exact financial status to the union.

The union also asserts that respondent violated its duty to budget for its contractual responsibilities. As discussed above, MERC found that respondent had a right to lay off its employees. There is no requirement of an absolute inability to budget its funds and pay employees in order to exercise this right. MERC's decision that budgetary necessitated layoffs were a permissible managerial decision is supported by substantial evidence and does not violate the law.

II

The union argues that the "bumping" procedure allegedly violated the collective bargaining agreement and that, therefore, an unfair labor practice occurred. The collective bargaining agreement provided for a procedure in the event that an employee's[156 MICHAPP 761] position is eliminated or layoffs are necessary. Although employees within the terminated positions were not given a choice as to which positions they could take over, the collective bargaining agreement does not give employees this choice. There appears to be a bona fide dispute as to the meaning of the contractual language in this article; however, an unfair labor practice hearing is not the proper forum for the resolution of a routine contract dispute. Noteworthy, the pendency of this case does not preclude arbitration of the contractual claim, Bay City School Dist. v. Bay City Ed. Ass'n, Inc., 425 Mich. 426, 390 N.W.2d 159 (1986).

III

The union argues that MERC erroneously held that the evidence did not prove that respondent unilaterally transferred bargaining unit work to nonunit employees. The unilateral transfer of work away from union employees without bargaining is an unfair labor practice. Lansing Fire Fighters v. Lansing, 133 Mich.App. 56, 349 N.W.2d 253 (1984). In the instant case, the union's witness said she...