SOUTHFIELD EDUCATION ASSN V SOUTHFIELD PUBLIC SCHOOLS
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STATE OF MICHIGAN
COURT OF APPEALS
SOUTHFIELD EDUCATION ASSOCIATION,
SOUTHFIELD PUBLIC SCHOOLS MICHIGAN
EDUCATION SUPPORT PERSONNEL
ASSOCIATION, and EDUCATIONAL
SECRETARIES OF SOUTHFIELD,
UNPUBLISHED
February 5, 2004
Charging-Parties-Appellants,
v
No. 240050
MERC
LC No. 99-000011
SOUTHFIELD PUBLIC SCHOOLS,
Respondent-Appellee.
Before: Wilder, P.J., and Griffin and Cooper, JJ.
PER CURIAM.
Charging parties Southfield Education Association, Southfield Public Schools Michigan
Education Support Personnel Association, and Educational Secretaries of Southfield appeal as of
right from an order entered by the Michigan Employment Relations Commission (MERC)
dismissing their unfair labor practice charge against respondent Southfield Public Schools. We
affirm.
We are asked to determine whether the MERC properly concluded that respondent did
not violate its duty to bargain in good faith by deciding to enforce the leave policies contained in
the parties’ collective bargaining agreements (CBAs); thereby deviating from the permissive
leave policy it had employed in the past. Because the CBAs unambiguously grant respondent
discretion in granting leaves of absence, charging parties have failed to show that respondent
acted contrary to the contract terms by choosing to grant all leaves. To the extent respondent
may not have enforced some of its rights under the agreements, charging parties have failed to
show an actual agreement to alter the agreements. For this reason, we also find that the MERC
properly rejected the charging parties’ claim of direct dealing.
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The MERC’s factual findings are conclusive when “supported by competent, material,
and substantial evidence on the record considered as a whole.”1 Due deference is also afforded
to the MERC’s administrative expertise.2 The MERC’s legal determinations will only be set
aside if they violate the constitution or a statute, or “are based on a substantial and material error
of law.”3
The parties’ leave policies in this case were originally defined in June 1990 during
negotiations for a CBA. Charging parties subsequently entered into CBAs with respondent in
1996. For purposes of this appeal, the 1996 agreements essentially provided that in most
circumstances unpaid leaves may be granted or extended at respondent’s discretion. It is
undisputed, however, that defendant granted all leave requests and extensions from at least 1982
to 1998.
The instant controversy began when respondent sent a memorandum to its employees on
July 27, 1998, informing them that it was changing its practice with regard to leaves of absence.
Rather than routinely granting leaves and leave extensions, respondent stated that its permissive
leave policy would be discontinued because school enrollment was increasing.
The
memorandum explained that leaves of absence were routinely granted in the past because school
enrollment was declining and unpaid leaves helped minimize layoffs. It further stated that leaves
of absence and extensions would be “granted or denied as determined by the administration.”
Charging parties filed an unfair labor practices charge alleging that respondent unilaterally
changed the leave policies. Both the hearing referee and the MERC rejected this claim and the
instant appeal followed.
Public employers are required to bargain in good faith over “wages, hours, and other
terms and conditions of employment . . . .”4 As such, once an agreement is reached between
labor and management, neither may unilaterally modify its terms without the other party’s
consent.5 However, it has been commonly accepted that “‘[a] past practice which does not
derive from the parties’ collective bargaining agreement may become a term or condition of
employment which is binding on the parties.’”6
1
Grandville Mun Executive Ass’n v City of Grandville, 453 Mich 428, 436; 553 NW2d 917
(1996).
2
Gogebic Community College Michigan Ed Support Personnel Ass’n v Gogebic Community
College, 246 Mich App 342, 348-349; 632 NW2d 517 (2001).
3
Grandville, supra at 436.
4
MCL 423.215(1); Gogebic, supra at 349.
5
St Clair Intermediate School Dist v Intermediate Ed Ass’n, 458 Mich 540, 566-567; 581 NW2d
707 (1998).
6
Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 311-312; 550 NW2d 228
(1996), quoting Amalgamated Transit Union v Southeastern Michigan Transp Authority, 437
Mich 441, 454; 473 NW2d 249 (1991).
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Our Supreme Court provided the following guidance regarding the ability of past practices to
modify the terms of an agreement:
In order to create a term or condition of employment through past practice,
the practice must be mutually accepted by both parties. Where the collective
bargaining agreement is ambiguous or silent on the subject for which the past
practice has developed, there need only be “tacit agreement that the practice
would continue.” However, where the agreement unambiguously covers a term
of employment that conflicts with a parties’ past behavior, requiring a higher
standard of proof facilitates the primary goal of the [Public Employment
Relations Act]—to promote collective bargaining to reduce labor-management
strife. A less stringent standard would discourage clarity in bargained terms,
destabilize union-management relations, and undermine the employers' incentive
to commit to clearly delineated obligations.
Requiring a higher standard of proof when there is express contract
language to the contrary comports with previous Michigan cases regarding
modification. Generally, parties are free to take from, add to, or modify an
existing contract. However, in the same way a meeting of the minds is necessary
to create a binding contract, so also is a meeting of the minds necessary to modify
the contract after it has been made. A collective bargaining agreement, like any
other contract, is the product of informed understanding and mutual assent. To
require a party to bargain anew before enforcing a right set forth in the contract
requires proof that the parties knowingly, voluntarily, and mutually agreed to new
obligations.[7]
It is insufficient to merely show that a party knew or should have known that its past practices
conflicted with express contract language.8 Rather, to establish that a past practice modified the
contract, a party must show that both contracting parties had a “meeting of the minds” with
respect to the changes and specifically intended that the practice would replace the agreed upon
term.9 As noted in Port Huron, “it is the underlying agreement to modify the contract that alters
the parties’ obligations, not the past practice.”10
Here, the past practice charging parties allege—approval of all leave requests—does not
conflict with unambiguous contract provisions granting respondent complete discretion
regarding most requests. And to the extent respondent’s actions could be viewed as conflicting
with these contract provisions, by the fact it ignored certain leave restrictions or created a
practice of mandatory approval, we agree with the MERC that charging parties have failed to
7
Port Huron, supra at 325-327 (citations omitted, emphasis added).
8
See id. at 332.
9
Id. at 329.
10
Id. at 329-330; see also Gogebic, supra at 354.
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show a voluntary, knowing, and intentional agreement to modify the contract.11 The fact that
respondent refrained from denying leaves or enforcing the restrictions placed on leaves does not
show that it intended to bind itself to an agreement to approve all future requests.12
As the MERC observed, this case is clearly distinguishable from Detroit Police Officers
Ass’n, where our Supreme Court concluded that the charging party presented substantial
evidence to show that the parties adopted their past practices as an amendment.13 In that case the
charter provided the board of trustees with the authority to determine whether an individual’s
disability was duty-related for retirement purposes.14 However, the charging parties in that case
presented evidence showing that the board of trustees had accepted over one hundred decisions
from the medical board of review on the issue of duty-relatedness as binding.15 The charging
parties in that case also presented several forms the board of trustees created asking the medical
board of review to make duty-related findings and emphasizing that these findings were final.16
Conversely, charging parties in this case have failed to provide any evidence showing
that respondent acknowledged or intended to implement a new mandatory approval policy. Even
in the July 1998 memorandum to its employees, respondent referred to the leave policy as a
permissive practice and not mandatory. As noted by the MERC, and perhaps more indicative of
the parties’ intent, is the fact that despite a history of liberally granting leave requests, the 1990
agreement respondent negotiated with charging parties provided it with complete discretion
regarding leaves and stated the responsibilities of employees on leave. These provisions were
referred to in the ensuing CBAs.
We further reject charging parties’ argument on appeal that the MERC applied an
improper standard by adding a “tangible affirmative steps” element to their burden of proof. A
review of the record shows that the MERC was merely noting a factual difference between the
present case and Detroit Police Officers Ass’n.17 Accordingly, we find that the MERC correctly
held that charging parties failed to meet their burden of showing that respondent intended to
modify the contract through its past practices.
11
See Detroit Police Officers Ass’n v Detroit, 452 Mich 339, 348-349; 551 NW2d 349 (1996).
12
While charging parties challenge the MERC’s factual finding that respondent’s past practice
began in 1982, we find no error requiring reversal. Even assuming that respondent had a practice
of automatically granting leaves of absence before 1982, the fact remains that the parties
negotiated a discretionary leave policy in 1990 and again in 1996.
13
See Detroit Police Officers Ass’n, supra at 346-348.
14
Id. at 341.
15
Id. at 346.
16
Id. at 347-348.
17
Id. at 339.
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We also find no merit to charging parties’ claim that respondent engaged in direct
dealing. Direct dealing with employees constitutes an unfair labor practice.18 But an employer
is permitted to “communicate with employees in a noncoercive manner as long as he does not
engage in individual bargaining on mandatory subjects.”19 Absent the duty to negotiate,
information regarding policy changes falls within the general communication permitted between
employers and employees.20 Because respondent did not have a duty to bargain over the matters
contained in the July 1998 memorandum, the MERC properly rejected this claim.21
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
/s/ Jessica R. Cooper
18
See MCL 423.211; see also Nederhood v Cadillac Malleable Iron Co, 445 Mich 234, 251; 518
NW2d 390 (1994).
19
Michigan Ed Ass’n v North Dearborn Heights School Dist, 169 Mich App 39, 46; 425 NW2d
503 (1988); see also MCL 423.210(1)(a).
20
See Michigan Ed Ass’n, supra at 46.
21
Respondent did not concede this issue on appeal. When a party fails to sufficiently brief an
issue raised by the other party, we generally attempt to decide the issue. Wayne Co Prosecutor v
Dep’t of Corrections, 451 Mich 569, 585; 548 NW2d 900 (1996).
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