West Ottawa Educ. Ass'n v. West Ottawa Public Schools Bd. of Educ.

• Decision Date: 05 August 1983
• Docket Number: Docket No. 64667
• Citation: 126 Mich.App. 306,337 N.W.2d 533
• Parties: , 13 Ed. Law Rep. 146 WEST OTTAWA EDUCATION ASSOCIATION, Plaintiff-Appellant, v. WEST OTTAWA PUBLIC SCHOOLS BOARD OF EDUCATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 533

337 N.W.2d 533

126 Mich.App. 306, 13 Ed. Law Rep. 146

WEST OTTAWA EDUCATION ASSOCIATION, Plaintiff-Appellant, v. WEST OTTAWA PUBLIC SCHOOLS BOARD OF EDUCATION, Defendant-Appellee.

Docket No. 64667.

Court of Appeals of Michigan.

Submitted Feb. 8, 1983.

Decided June 7, 1983.

Released for Publication Aug. 5, 1983.

Foster, Swift, Collins & Coey, P.C. by Karen Bush Schneider and Timothy P. Greeley, Lansing, for the association.

Thrun, Maatsch and Nordberg, P.C. by Kevin S. Harty, Lansing, for the board.

Before DANHOF, C.J., and V.J. BRENNAN and BAGULEY, ^* JJ.

V.J. BRENNAN, Judge.

The West Ottawa Education Association (hereinafter association) appeals as of right an order of the Michigan Employment Relations Commission (hereinafter MERC) affirming a hearing officer's decision to dismiss the association's complaint. The charges, filed on April 20, 1981, alleged that the West Ottawa Public Schools Board of Education (hereinafter board) had engaged in unfair labor practices in violation of Sec. 10(1), subds. (a), (e) of the Michigan public employment relations act (hereinafter PERA). M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq. Specifically, the association challenged two decisions of the board which had been made unilaterally and without bargaining with the association. The association is the sole and exclusive bargaining agent for all full and part-time certified classroom teachers in the West Ottawa School District.

First, the board decided in 1980 to discontinue a class in Dutch dance. The position of director of the Dutch dance program was classified as a "Schedule B" position under the terms of the parties' collective bargaining agreement. Schedule B positions were part of the association's bargaining unit. A Dutch dance class was subsequently offered during the 1980-81 school year by the Community Education Program and was taught by the same person, Ms. Fabiano, at the same salary. This education program was run by the Community Education Consortium. The consortium was composed of three school districts, one of which was the West Ottawa School District. The association claimed that the board had not discontinued the Dutch dance class but had actually subcontracted it to the consortium, which was the alter ego of the board.

The hearing officer rejected the association's argument that the West Ottawa School Board had subcontracted the teaching of Dutch dance without first bargaining with the association. It was found that the board had ceased offering the course and had not contracted with the consortium to teach the class. The hearing officer noted that MERC has recognized that a consortium, composed of several school districts having their own employees, may be an employer under PERA. A consortium is not considered an alter ego of the member districts.

The hearing officer further stated that management's right to manage entitled the employer to make decisions that lie at the core of entrepreneurial control. There must be a balance between management's right to manage and the interest of the employees. Abandonment of a function is not necessarily a mandatory subject of bargaining. The hearing officer concluded that the association had not sustained its burden of proving that the board's actions violated the bargaining requirement of Sec. 10(1)(e) of PERA.

The association filed timely exceptions to this decision, arguing that the board had not eliminated the Dutch dance program but had merely transferred it to an alter ego. In an opinion, dated May 12, 1982, MERC affirmed the hearing officer's finding and conclusions on this issue. The Community Education Program was found not to be an alter ego of the board under these circumstances.

On appeal, the association claims that the school board violated subsections 10(1)(a) and 10(1)(e) of PERA in unilaterally removing the position of Dutch Dance Director from the association's bargaining unit.

In reviewing MERC decisions, we note that under Sec. 16 of PERA, fact findings by the commission are conclusive if supported by competent, material and substantial evidence on the record considered as a whole. M.C.L. Sec. 423.216, subds. (d), (e); M.S.A. Sec. 17.455(16), subds. (d), (e). This standard of appellate review comports with Const.1963, art. 6, Sec. 28, and is similar to language used in the Administrative Procedures Act, M.C.L. Sec. 24.306(1)(d); M.S.A. Sec. 3.560(206)(1)(d). Michigan Employment Relations Comm. v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 121, fn. 3, 223 N.W.2d 283 (1974). Judicial review of administrative decisions involves a review of the whole record, not just those portions which support the agency's findings. Although review is not de novo, it entails a degree of qualitative and quantitative evaluation of the evidence considered by the agency. Courts should give due deference to the agency's expertise and not displace an agency's choice between two reasonably differing views. 393 Mich. 124, 223 N.W.2d 283. However, this Court may overturn a decision if it is contrary to law. Detroit v. General Foods Corp., 39 Mich.App. 180, 190, 197 N.W.2d 315 (1972); M.C.L. Sec. 24.306(1)(f); M.S.A. Sec. 3.560(206)(1)(f).

PERA Sec. 10(1) states in pertinent part:

"(1) It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9 * * * or (e) to refuse to bargain collectively with the representatives of its public employees * * *." M.C.L. Sec. 423.210(1); M.S.A. Sec. 17.455(10)(1).

Under Sec. 9, M.C.L. Sec. 423.209; M.S.A. Sec. 17.455(9), public employees have the right to organize, join or assist labor organizations, engage in lawful activities for the purpose of collective negotiation or bargaining, and negotiate or bargain collectively with their public employers through their representatives.

Pursuant to Sec. 15, M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15), a public employer shall bargain collectively with the representative of its employees. Collective bargaining is defined as:

"the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." (Emphasis added.)

Subjects which are included within the phrase "wages, hours, and other terms and conditions of employment" are mandatory subjects of bargaining. Once a subject is classified as a mandatory subject, the parties are required to bargain on that issue and neither party may take unilateral action on the subject absent an impasse in negotiations. Central Michigan University Faculty Ass'n v. Central Michigan University, 404 Mich. 268, 277, 273 N.W.2d 21 (1978); Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 54-55, 214 N.W.2d 803 (1974). Refusal to bargain about mandatory subjects constitutes an unfair labor practice under Sec. 10(1)(e) of PERA. Detroit Police Officers Ass'n v. Detroit, 61 Mich.App. 487, 490, 233 N.W.2d 49 (1975), lv. den. 395 Mich 756 (1975). In contrast, permissive subjects of bargaining fall outside the scope of those designated as mandatory subjects. The parties are not required to bargain over these issues but may do so voluntarily. Local 1277, Metropolitan Council No. 23, AFSCME v. Center Line, 414 Mich. 642, 652, 327 N.W.2d 822 (1982).

Since Sec. 10 and Sec. 15 of PERA are identical subsections 8(a) and 8(d) respectively of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158, federal precedents are helpful in analyzing the issues at hand. Local 1277, supra, p. 652, 327 N.W.2d 822; Detroit Police, supra, 391 Mich. 53, 214 N.W.2d 803. However, Michigan courts have adopted a more liberal approach in determining whether a particular subject may be classified as a mandatory subject of bargaining, since public employees are forbidden to strike under PERA. M.C.L. Sec. 423.202; M.S.A. Sec. 17.455(2), Detroit Police, supra, 61 Mich.App. 491, 233 N.W.2d 49; Van Buren Public School Dist. v. Wayne Circuit Judge, 61 Mich.App. 6, 27, 232 N.W.2d 278 (1975). The determination of what constitutes a mandatory subject of bargaining is done on a case-by-case basis. Detroit Police, supra, 61 Mich.App. 490-491, 233 N.W.2d 49.

The association raises four arguments in support of its contention that the board committed an unfair labor practice. First, it alleges that the position of Dutch Dance Director was subcontracted to the consortium and, therefore, this decision was a mandatory subject of bargaining. Second, even if no subcontracting occurred, the consortium cannot be considered a public school employer and, therefore, the board actually employed the dance instructor and was required to treat her position as a Schedule B position under the parties' master agreement. Third, even if the consortium can be considered an employer, it was in reality only the alter ego of the board. Therefore, the board was the actual employer of the instructor. Fourth, even if the other three arguments are rejected, the board still had a duty to bargain with the association over the decision to drop the Dutch dance program.

We address the association's arguments seriatim. Did the board subcontract the position of Dutch Dance Director to the consortium?

The hearing officer rejected the association's contention that the board subcontracted the teaching of Dutch dance to the consortium. He found that the board simply ceased teaching the course. The cases cited by the association were distinguished, since the work in those cases was still being done for the employer by a subcontractor under an express contract.

The association, in its reply brief, asserts that it does not contest the hearing officer's fact findings but nonetheless claims that the board surreptitiously continued offering the program through the consortium. The association apparently...