COUNTY OF WASHTENAW V AFSCME COUNCIL 25
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STATE OF MICHIGAN
COURT OF APPEALS
COUNTY OF WASHTENAW,
UNPUBLISHED
July 29, 2010
Respondent,
and
WASHTENAW COUNTY TREASURER,
Respondent-Appellant,
v
No. 286874
MERC
LC No. 04-000162
AFSCME COUNCIL 25,
Charging Party-Appellee.
Before: K.F. KELLY, P.J., and SAAD and WHITBECK, JJ.
PER CURIAM.
Respondent Washtenaw County Treasurer (the Treasurer) appeals as of right under MCL
423.216(e), the Michigan Employment Relations Commission’s (MERC) decision affirming the
decision and recommended order of the hearing officer in favor of charging party AFSCME
Council 25, Local 2733 (the Union). This case arises out of the Union’s unfair labor practice
charge against the Treasurer and the County of Washtenaw.1 We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On appeal, the Treasurer accepts (with a few minor exceptions) the hearing officer’s
findings of fact and summary of procedural history; thus, we quote that recitation here:
The Unfair Labor Practice Charge:
On June 21, 2004, Charging Party American Federation of State, County
and Municipal Employees (AFSCME) Council 25, Local 2733, filed an unfair
1
The County of Washtenaw is not a party to this appeal.
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labor practice charge against the County of Washtenaw. On August 18, 2004, the
Union amended the charge to include the Washtenaw County Treasurer as a
Respondent. The charge, as amended, alleges that Respondents violated Section
10 of the PERA [public employment relations act] by repudiating a collective
bargaining agreement entered into by the parties in 2002. Specifically, AFSCME
contends that the Washtenaw County Treasurer, Catherine McClary, prevented
bargaining unit member Donald Bilbey from bumping into a position in the
Treasurer’s Office to which he was entitled pursuant to a “superseniority”
provision in the contract. At the hearing, Charging Party once again amended the
charges to include an allegation that the Washtenaw County Treasurer was
motivated by anti-union animus in refusing to allow Bilbey to bump into a
position in her department.
Finding of Facts:
Charging Party is the certified collective bargaining representative of
approximately 700 employees of Washtenaw County. AFSCME Local 2733
members are organized in two bargaining units, referred to by the parties as Units
A and B. Unit A consists of all nonsupervisory professional employees of the
County, excluding employees of the circuit, probate and district courts, the
prosecuting attorney’s office, the public defender’s office, the corporation
counsel’s office and the human resources department. Unit B is comprised of all
non-degreed County employees.
Catherine McClary took office as Washtenaw County Treasurer in January
of 1997. She has since been reelected to that office twice, most recently for a
term covering the period 2003-2007. Since McClary took office as Washtenaw
County Treasurer, AFSCME Local 2733 and the County have been parties to
successive collective bargaining agreements covering the periods 1998-2002 and
2003-2007.
The lead negotiator for the County during negotiations on the 1998-2002
contract with Unit A was labor relations director Diane Heidt. The remainder of
the County’s bargaining team consisted of representatives from the juvenile
detention, juvenile court, environmental health and friend of the court. McClary
was not present during the negotiations, nor was any member of her department.
AFSCME’s representatives did not question the absence of the treasurer because
it appeared to them that the Employer’s bargaining team represented a crosssection of County departments, and because the County had traditionally
bargained contracts on behalf of all its elected officials.
After an agreement had been reached between Charging Party and the
County’s negotiating team, Heidt called McClary and asked her to sign a copy of
the contract. McClary refused to sign the agreement, indicating to Heidt that she
felt uncomfortable because she “didn’t have anything to do with it.” The 1998 to
2002 contract was ultimately signed by the chair of the Washtenaw County board
of commissioners, the clerk/register of deeds, the drain commissioner, the sheriff
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and the prosecuting attorney. There was no signature line for the Washtenaw
County Treasurer on the final agreement.
The County’s bargaining team for the 2003-2007 contract consisted of
Heidt and representatives from public health, juvenile detention and the trial
court. Once again, neither McClary nor any representative of the Treasurer’s
office were present for the negotiations. McClary was aware that bargaining was
ongoing, however, as there were brief discussions about the status of negotiations
during the departmental meetings which McClary attended. In addition, McClary
knew that some of her employees were in Charging Party’s bargaining unit and
that they paid membership dues to AFSCME. On or about March 18, 2003, Heidt
presented McClary with a copy of the 2003-2007 contract for her signature, but
McClary again refused to add her signature to the document. The contract was
ultimately signed by the chair of the board of commissioners, the clerk/register of
deeds, the drain commissioner, the sheriff and the prosecuting attorney. The final
version of the agreement contains a line for McClary’s signature which was left
blank, as was a space intended for the signature of a member of the Union’s
negotiating team.[2]
The incident which gave rise to this dispute involved Donald Bilbey, an
Accountant I/II/II [sic] in the County’s support services department. Bilbey
served as an AFSCME steward for a number of years and, in early 2003, was
elected to the position of Union treasurer. Due to a reorganization which occurred
in April of 2004, Bilbey’s position in the support services department was
eliminated.
Article 15 of the 2003-2007 contract contains a “superseniority” clause
which provides that officers of Local 2733, the chapter chairperson, secretary and
all stewards shall head the seniority list of the unit for the purpose of layoff during
their terms of office. By letter dated April 8, 2004, the County notified Bilbey of
his right under Article 15 to bump into the least senior Unit A accountant I/II/II
[sic] position in the Treasurer’s Office, a position which was held at the time by
Jihong Shi, an employee with more overall seniority then Bilbey.
Bilbey accepted the bump and Shi was removed from her position in the
Treasurer’s Office.[3] Bilbey was scheduled to begin working in the position
formerly held by Shi on or about May 3, 2004. Prior to that date, McClary called
Charging Party’s president, Robert Brabbs, and told him that she was not going to
allow Bilbey to bump into a position in her department because she had never
agreed to the AFSCME contract and did not believe it was fair for a “new officer”
to displace one of her employees. That same day, the Union filed a grievance
2
The Treasurer notes that this last statement, while true, is misleading because five other Union
representatives did sign the 2003-2007 collective bargaining agreement.
3
The Treasurer states that Shi was never actually removed from her position.
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asserting that Bilbey was being denied his bumping rights under Article 15 of the
contract.
On May 5, 2004, the County’s corporation counsel sent a letter to
McClary requesting that she confirm that it was her position that the Washtenaw
County Treasurer was not bound by the contract negotiated between AFSCME
and the County. Specifically, the letter stated, in pertinent part:
It has come to my attention that you have taken the position that
you are not bound by the AFSCME Local 2733 collective
bargaining agreements. This takes place after several years of
accepting and abiding by the terms and conditions of the collective
bargaining agreements.
You have specifically refused to
acknowledge the seniority provisions of the agreement regarding
the placement and transfer of employees in the case of a lay-off.
[I]t also appears that you are now repudiating the entire collective
bargaining agreement between the Board of Commissioners and
AFSCME Local 2733.
McClary responded to the corporation counsel by memorandum that same
day. The memorandum provided, in relevant part:
[T]his will confirm that I cannot repudiate the collective
bargaining agreement between the Board of Commissioners and
AFSCME Local 2733 as I have never negotiated nor been a
meaningful party to the agreement. Although I have the legal
status as a co-employer with the Board of Commissioners, I am not
a party to the agreement because AFSCME has never asked me to
bargain with it on terms and conditions of employment within the
Office of County Treasurer, nor did I authorize anyone to bargain
on behalf of the Treasurer.
I fully support unionized work forces and I am a firm believer in
the underlying concepts of collective bargaining. Even so, I do not
believe that a Union officer of only a few weeks duration should
bump a long-term, highly skilled, experienced employee with more
seniority who is supporting two children.
As Washtenaw County Treasurer, I am asking Corporation
Counsel’s Office to represent me in this challenge by AFSCME. I
have neither acquiesced nor agreed to “super seniority.” AFSCME
has an affirmative obligation and burden to submit to the Treasurer
a demand to bargain on non-economic terms and conditions within
the Treasurer’s Office, including seniority. I have never been
afforded the opportunity to negotiate, nor accepted or abided by,
“super seniority” bumping rights into the Office of County
Treasurer. [Emphasis in original.]
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That evening, the Washtenaw County Board of Commissioners voted
unanimously to adopt a resolution which conveyed to the County administration
its “support of their execution” of the collective bargaining agreement and called
for the faithful execution of “all clauses of all of the County’s bargaining
agreements.”
On May 19, 2004, the Board of Commissioners voted to eliminate the
accountant position in the Treasurer’s Office into which Bilbey was supposed to
have bumped. The County then bumped Bilbey into a different accountant
position in the Treasurer’s Office, effective June 11, 2004. The employee who
held that position, Jacco Gelderloos, was moved to a position in another
department. Once again, however, McClary refused to allow Bilbey to bump into
a position in the Treasurer’s Office. In response, on or about June 2, 2004, the
Board eliminated the position in the Treasurer’s Office formerly held by
Gelderloos and bumped Bilbey to an accountant position in the County’s finance
department, where he remained at the time of hearing in this matter. Thereafter,
on August 18, 2004, the Union filed the instant charge against the County and the
Treasurer.
At the hearing in this matter, Charging Party’s witnesses testified about
various incidents that occurred between 1998 and 2005 which purportedly caused
the Union to believe that McClary was bound by the terms and conditions set
forth in the contracts negotiated by the County.
***
In 2000, Betty Mastichelli, an employee of the Treasurer’s Office and a
member of AFSCME Local 2733 Unit B, was disciplined. McClary asked the
County’s human resources department to transfer Mastichelli out of the
Treasurer’s Office.
Negotiations ensued between McClary, Brabbs and
representatives from the County’s human resources department. Ultimately, the
County and the Union agreed that Mastichelli would be moved to another
department and that her wages would be red-circled. Brabbs believed that the
settlement agreement had been approved by McClary since the terms of the
agreement were fully implemented and Mastichelli was ultimately relocated to a
position outside of the Treasurer’s Office.[4]
Another employee of the Treasurer’s Office, Stephanie Battle, was
terminated by McClary for poor performance. AFSCME filed a grievance over
the termination and, pursuant to the terms and conditions set forth in the
AFSCME contract, it went directly to Heidt, who is Step 3 of the grievance
procedure. The grievance was ultimately settled as a result of negotiations which
4
The Treasurer contends that once Mastichelli was removed, the Treasurer was simply “happy to
be rid of [Mastichelli] and had no further involvement or concern.”
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took place involving Heidt and Brabbs. Although McClary did not participate in
these discussions, Brabbs testified credibly that Heidt held herself out as a
representative of both the County and the Treasurer’s Office for purposes of
resolving the dispute. McClary was aware of the settlement, but took no action to
oppose it. At hearing, McClary testified “[Heidt] told me it was less expensive to
settle [than] to go to arbitration. And I didn’t sign anything or agree to it or not
agree to it, if it’s cheaper for the County that’s what they decided to do.”
On another occasion, McClary consulted with Heidt and Vera McDaniel
concerning a problem employee. On advice of Heidt and McDaniel, McClary
began imposing progressive discipline on the employee. In addition, McClary
started documenting the employee’s conduct by filling out “union performance
evaluation” forms. Ultimately, McClary went to Heidt and asked for the County’s
assistance in getting the employee moved to another department. Heidt indicated
to McClary that there was an employee in the IT department, Lois Merritt, who
was eligible to bump into the position. Merritt was transferred to the Treasurer’s
Office in 2003 pursuant to the bumping procedure set forth in the AFSCME
contract.
A few years prior to the hearing in this matter, a part-time employee of the
Treasurer’s Office began experiencing medical problems and needed to retire. In
an attempt to find a way to get health insurance for this employee, McClary called
a conference with Brabbs and a representative of the County’s labor relations
department. According to Brabbs, this conference was held pursuant to the terms
and conditions set forth in the AFSCME contract.
Upon concluding his finding of facts, the hearing officer then went to explain the
governing principles of law:
It is well established that a county treasurer is a co-employer of her
appointed duties. MCL 78.37; Branch County Bd of Commissioners v UAW, 260
Mich App 189 (2003); Berrien Co, 1987 MERC Lab Op 306. As a co-employer,
the treasurer has the right to bargain and to approve any agreement pertaining to
her duties. St. Clair Prosecutor v AFSCME, Local 1518, 425 Mich 204 (1987).
With this right, however, comes certain obligations, including the obligation to
bargain in good faith with the certified representative of her employees. County
of Wexford, 1992 MERC Lab Op 444; St. Clair County Sheriff, 1976 MERC Lab
Op 708.
***
It is a violation of Section 10(1)(e) of PERA for a public employer to
refuse to bargain collectively with the representatives of its employees. However,
PERA does not require the employer to initiate bargaining. Rather, an employer’s
duty to bargain under the Act is conditioned on there being a request to bargain
from the employees or the employee representative. St. Clair Prosecutor v
AFSCME, Local 1518, 425 Mich 204, 247 (1986); Local 586, SEIU v Union City,
135 Mich App 553, 558 (1984). The requirement that there be a bargaining
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demand can be impliedly or expressly waived by a public employer. St. Clair
Prosecutor, supra at 247-248 (1986). Waiver may be implied by acquiescence
that would reasonably lead the other parties to believe that a co-employer
considered herself to be represented by another employer during negotiations and
ultimately to be bound by the agreement struck by the other participating parties.
Id.
In rendering his determination on the Union’s charge, the hearing officer first pointed out
that there was no dispute that the Union did not directly bargain with the Treasurer and that the
Treasurer never directly authorized the County to bargain on her behalf. However, noting that it
was the County’s practice to negotiate on behalf of its elected officials, the hearing officer
concluded that the Union “reasonably believed that the Treasurer was bound by the contracts it
negotiated with the County.” And although the Treasurer apparently disagreed with this practice
and indeed refused to sign the collective bargaining agreements that she did not negotiate for, the
hearing officer found it significant that the Treasurer did not disclose her objections to the Union
until the present dispute over Bilbey’s super-seniority bump arose. The hearing officer then
went on to recap the various prior, employee/union interactions that the Treasurer took part in (as
explained above) and concluded that her involvement and conduct evidenced “an implied waiver
by acquiescence.” The hearing officer concluded that
McClary waived the right to assert her bargaining authority as a co-employer of
[the Union’s] members. See e.g. Wexford, supra (treasurer estopped from
denying agreement where he failed to communicate his dissatisfaction with
disputed clause until six months after contract had been ratified and
implemented). Cf. St. Clair Prosecutor, supra (waiver of bargaining authority
did not occur where prosecutor did nothing which would have led parties to
believe that he took a different position than his predecessor with respect to his
employer prerogative to bargain over the terms and conditions of employees
within his office).
Accordingly, the hearing officer held that the Treasurer was estopped from rejecting the
collective bargaining agreement as implemented by Washtenaw County.
The hearing officer then went on to dismiss the Treasurer’s contention that Article 15 (the
super-seniority clause) was unlawful. Although noting that MERC has previously held that
Article 15 violates the PERA “when granted to union officers who do not perform steward or
other on-the-job contract administration functions[,]” the hearing officer found that the present
record was lacking in evidence regarding Bilbey’s duties. And, regardless, the hearing officer
pointed out, the legality of Article 15 was not the question at issue in the present challenge.
Last, the hearing officer addressed whether the Treasurer’s refusal to comply with the
collective bargaining agreement constituted an unlawful discrimination in violation of Section
10(1)(c) of the PERA. The hearing officer found that the Treasurer “testified credibly” that she
refused to accept Bilbey’s bump because of her non-participation in the collective bargaining
agreement negotiations and her disagreement with the displacement of another more qualified
and more senior union member. According to the hearing officer, “There is simply nothing in
the record to suggest that [the Treasurer] was in [sic] motivated by anti-union animus or hostility
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to employees’ exercise of protected rights in attempting to prevent Bilbey from bumping into a
position in the Treasurer’s Office.”
The Treasurer then filed exceptions to the hearing officer’s decision. The Treasurer
argued that the hearing officer erred in finding that she was bound by the collective bargaining
agreement between AFSCME and the County. The Treasurer also argued that the hearing officer
erred in finding the matter justiciable. According to the Treasurer, the Board of Commissioners’
decision to eliminate the positions in question before the filing of this charge made it impossible
to fashion a remedy and, therefore, rendered the matter moot. The Treasurer again contended
that the super-seniority clause of the agreement was unlawful. And, last, the Treasurer argued
that, even assuming the legality of the clause, her refusal to abide by the terms of the collective
bargaining agreement did not constitute an unfair labor practice. On May 15, 2008, MERC
issued its decision, upholding the hearing officer’s recommended order.
MERC later granted the Treasurer’s motion for reconsideration, but ultimately adhered to
its original decision to uphold the hearing officer’s recommendation. The Treasurer now
appeals.
II. THE MERC DECISION
A. STANDARD OF REVIEW
“We review MERC decisions ‘pursuant to Const 1963, art 6, § 28, and MCL
423.216(e).’”5 “MERC’s ‘findings of fact are conclusive if they are supported by competent,
material, and substantial evidence on the record considered as a whole.’”6 “‘This evidentiary
standard is equal to “the amount of evidence that a reasonable mind would accept as sufficient to
support a conclusion. While it consists of more than a scintilla of evidence, it may be
substantially less than a preponderance.”’”7 We must undertake review of MERC’s factual
findings “‘with sensitivity, and due deference must be accorded to administrative expertise.”8
And we will not “‘invade the exclusive fact-finding province of administrative agencies by
displacing an agency’s choice between two reasonably differing views of the evidence.’”9
5
Branch Co Bd of Comm’rs v MERC Int’l Union, 260 Mich App 189, 192; 677 NW2d 333
(2003), quoting Grandville Municipal Executive Ass’n v Grandville, 453 Mich 428, 436; 553
NW2d 917 (1996).
6
Branch, 260 Mich App at 192-193, quoting Grandville, 453 Mich at 436.
7
Lansing v Carl Schlegel, Inc, 257 Mich App 627, 630; 669 NW2d 315 (2003) (quotations and
citations omitted).
8
Gogebic Community College v Gogebic Community College Michigan Educ Support Personnel
Ass’n, 246 Mich App 342, 348-349; 632 NW2d 517 (2001), quoting Amalgamated Transit Union
v SEMTA, 437 Mich 441, 450; 473 NW2d 249 (1991).
9
Gogebic, 246 Mich App at 349, quoting Amalgamated, 437 Mich at 450 (citation omitted).
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“MERC’s ‘legal determinations may not be disturbed unless they violate a constitutional
or statutory provision or they are based on a substantial and material error of law.’”10 Stated
differently, “[w]e will set aside a legal ruling by MERC if it runs afoul of the law or is otherwise
tainted by a serious legal error.”11 “‘In contrast to [] MERC’s factual findings, its legal rulings
“are afforded a lesser degree of deference” because review of legal questions remains de novo,
even in MERC cases.’”12 However, “[a]lthough [this Court’s] deference to the MERC is less
with regard to questions of law, ‘the [MERC] is the state agency specially empowered to protect
employees’ rights [and] . . . , we acknowledge the MERC’s expertise and judgment [sic] in the
area of labor relations.’”13
B. WAIVER BY ACQUIESCENCE
The Treasurer argues that MERC erred in ruling that an elected county treasurer, as a
public employer, can be deemed party to a collective bargaining agreement that she refused to
sign or accept, and therefore can be guilty of an unfair labor practice for failing to adhere to any
terms of a contract between other parties. The Treasurer further argues that MERC erred in
holding that arguable compliance by a public employer with some provisions of a third-party
contract, which the public employer is required by law to recognize,14 and over which the
Treasurer has no authority or control, is tantamount to binding adoption of the entire contract. In
sum, the Treasurer essentially argues that MERC erred in holding that she was bound to the
collective bargaining agreement on the theory that she waived any right to object to its terms.
According to the Treasurer, the Union should have been on notice of her lack of acceptance of
the agreement by the lack of her signature on the contract.
In County of Wexford and Wexford County Treasurer,15 MERC affirmed the hearing
officer’s conclusion that the Wexford County Treasurer was estopped from challenging the
validity of a collective bargaining agreement between the County of Wexford and the United
Steelworkers of America, AFL-CIO, CLC, because he failed to communicate his objections to
the Steelworkers in a timely fashion. As in this case, the hearing officer in Wexford first noted
that the Wexford County Treasurer was a co-employer with the County and that, accordingly, he
was entitled to certain rights, but also subject to certain obligations, including the obligation to
bargain in good faith. The hearing officer explained that “if the treasurer had reservations about
10
Branch, 260 Mich App at 193-194, quoting Grandville, 453 Mich at 436, citing MCL
24.306(1)(a), (f).
11
Michigan Educ Ass’n v MERC, 267 Mich App 660, 663; 706 NW2d 423 (2005) (emphasis
added).
12
Branch, 260 Mich App at 194 (quotations and citations omitted).
13
Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 323 n 18, 550 NW2d 228
(1996) (quotations and citations omitted)).
14
Citing MCL 46.11(g) and (m); MCL 48.40.
15
County of Wexford and Wexford County Treasurer, 1992 MERC Lab Op 444; 5 MPER 23059
(1992).
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the [contract], he had ample opportunity to convey that doubt and have the problem presented in
negotiations with the [Steelworkers’] bargaining team immediately after” the meeting at which
the tentative agreement was reached. And while the hearing officer acknowledged that “there
may be numerous difficulties in concluding an agreement where the employer is a multi-headed
entity, simple communication between the parties is still basic to a good faith bargaining
relationship.”16
Notably, the hearing officer in Wexford also pointed out that a co-employer need not sign
the completed contract to express his ratification of the document.17 According to the hearing
officer, “The right of the co-employers, including the treasurer, to participate in collective
bargaining with the County carries with it the obligation to maintain close communication with
their agents as the negotiations progress and to act definitively and expeditiously on matters
affecting their area of concern.” MERC agreed that the Treasurer’s “total failure to
communicate” with the Steelworkers until after the contract was ratified and implemented was
the dispositive factor and entitled the Steelworkers to rely on the agreement.
Here, the undisputed facts show that the Treasurer told the County’s labor relations
director that she did not want to sign the 1998-2002 contract because she “didn’t have anything
to do with it.” And the Treasurer again refused to sign the 2003-2007 contract when the labor
relations director presented it to her. However, the undisputed facts also show that the Treasurer
never communicated her objections to the contract to the Union until long after the contract had
been ratified and implemented. And as in Wexford, the Treasurer here was obligated to
communicate her objections to the Union so that the issue could be negotiated because “simple
communication between the parties is still basic to a good faith bargaining relationship.” We
therefore find no material error in the hearing officer’s conclusion that, in the absence of such
communication, the Union was entitled to rely on the bargained-for agreement as applying to the
Treasurer’s Office. By engaging in negotiations and discussions with the Union about union
employees in her office, the Treasurer operated in a manner that evidenced “an implied waiver
by acquiescence.” Indeed, we find most significant the Treasurer’s lack of objection when
another union employee, Lois Merritt, was bumped into a position in the Treasurer’s Office. In
that instance, the Treasurer had no apparent objection to the bumping procedure (the same
procedure that she now takes issue with in this matter) when it suited her need to replace another
problem employee.
The Treasurer nevertheless argues that it was not her responsibility to contact the Union
to voice her objections, contending that it was the Union’s duty to request to bargain with her.18
16
Emphasis added.
17
Citing Shelby Twp, 1989 MERC Lab Op 704, 708-709, 715-716; Kalamazoo Twp, 1982
MERC Lab Op 1018, 1022; City of Lincoln Park, 1982 MERC Lab Op 479, 492-493; Village of
Chesaning, 1974 MERC Lab Op 580, 586, 594-597.
18
St Clair Prosecutor v American Federation of State, Local 1518, 425 Mich 204, 242; 388
NW2d 231 (1986); Local 586, Service Employees Int’l Union v Union City, 135 Mich App 553,
557; 355 NW2d 275 (1984).
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However, we find no error in MERC’s finding that “the County had traditionally bargained
contracts on behalf of all its elected officials” and that the Union was entitled to rely on the
negotiations reached with the County’s bargaining team. And, in this respect, this case is
distinguishable from St Clair Prosecutor, in which the history of negotiations between the union
and the prosecutor’s office evidenced the prosecutor’s stated disagreement with the applicability
of some of the contract terms to that office.19 Therefore, even assuming fault in the Union’s
failure to extend an express invitation to negotiate to the Treasurer, the Treasurer was not entitled
to sit idly by and operate under the terms of the contract until those terms no longer suited her
interests. Accordingly, we find no material error in MERC’s decision that the Treasurer be
estopped from refusing to recognize the 2003-2007 collective bargaining agreement.
C. LEGALITY OF SUPER-SENIORITY CLAUSE
The Treasurer argues that the hearing officer and MERC erred in declaring the
Treasurer’s refusal to abide by an unlawful super-seniority clause in the collective bargaining
contract an unfair labor practice, and correlatively violated the wrongful conduct rule and the
“clean hands” doctrine by mandating enforcement of an unlawful contractual provision. The
Treasurer also argues that the hearing officer and MERC erroneously shifted the burden of proof,
or burden of challenging the unlawful provision, to or upon the Treasurer.
As the hearing officer noted in his decision, MERC has previously held that a superseniority clause violates the PERA “when granted to union officers who do not perform steward
or other on-the-job contract administration functions.”20 However, we find no material error in
MERC’s conclusion that the Treasurer’s argument was not properly and timely presented. The
Union’s charge as filed was limited to the hearing officer determining whether the Treasurer was
engaging in unfair labor practice for failure to recognize the collective bargaining agreement.
And the Treasurer did not meet her burden to file a separate charge challenging the legality of
the super-seniority clause with six months of the Union’s exercise of the allegedly unlawful
clause.21 Indeed, she did not even raise the issue of the clause’s alleged illegality until she filed
her post-hearing brief. Therefore, we conclude that the hearing officer properly determined that
there was “no unfair labor charge presently before this tribunal challenging the legality of Article
15.” Moreover, regardless of the timeliness of the argument, as the hearing officer pointed out,
the Treasurer “failed to present any evidence on the issue of whether Bilbey is required to
19
St Clair Prosecutor, 425 Mich at 241, 243 (“Nearly all of Prosecutor Deegan’s
communications concerning his readiness to bargain, as well as most of the assertions by the
APAS, the county, and the successor prosecutor, reserving the prosecutor’s statutory
prerogatives, were unacknowledged by the collective bargaining agent.”).
20
See Warren Consolidated School, 18 MPER 163 (April, 2006); Grand Rapids Bd of Ed, 1985
MERC Lab Op 802.
21
MCL 423.216(a)(“No complaint shall issue based upon any unfair labor practice occurring
more than 6 months prior to the filing of the charge with the commission and the service of a
copy thereof upon the person against whom the charge is made . . . .”); Detroit Assoc of
Educational Office Employees, 19 MPER 5 (July, 2006); Warren Consolidated School, 18
MPER 163 (April, 2006).
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perform contract administration duties[.]” Therefore, neither the hearing officer nor MERC
erred in refusing to rule on an issue for which the requisite evidence was lacking.
D. UNFAIR LABOR PRACTICE
The Treasurer argues that, even assuming that she breached a lawfully enforceable superseniority provision of the collective bargaining agreement, the claimed breach of contract is not
an unfair labor practice and MERC lacked requisite jurisdiction to enforce the claim.
As stated, the Union’s charge stated that the charge at issue was whether the Treasurer
was engaging in unfair labor practice for failing to recognize the collective bargaining
agreement. And, as the hearing officer framed it, the charge was that the Treasurer violated
PERA by “repudiating a collective bargaining agreement.” Further, in its charge, the Union
alleged that, by her May 2004 letter, the Treasurer “served notice of repudiation of the negotiated
agreement[.]” Thus, as the Union points out, by framing the issue as a breach of contract claim,
the Treasurer mischaracterizes the Union’s claims. MERC clearly has jurisdiction to resolve
claims involving alleged repudiation of a collective bargaining agreement or a provision thereof,
which “may be tantamount to a rejection of its obligation to bargain.”22 Thus, we find no error.
E. JUSTICIABILITY
The Treasurer argues that MERC erred in finding a justiciable controversy. The
Treasurer points out that both positions in the Treasurer’s office to which super-seniority
bumping rights were ostensibly denied were eliminated before the filing of the unfair labor
practice charge. Therefore, the Treasurer argues that any unfair labor practice charge is moot
because it is legally impossible for the Treasurer to “reinstate” Bilbey to a position that he never
held and which the Treasurer has no authority to reestablish.
As stated, the crux of the Union’s charge was the Treasurer’s failure to recognize, or
repudiation of, the collective bargaining agreement. Thus, the charge was not moot because a
determination was necessary to resolve the Treasurer’s obligation to honor the agreement in this
instance and in the future. Moreover, as the Union points out, MERC has broad discretion to
fashion appropriate remedies to effectuate the purposes of PERA for unfair labor practices,
including cease and desist orders, reinstatement, and back pay.23 There is no evidence that
MERC’s order “‘is a patent attempt to achieve ends other than those which can fairly be said to
effectuate the policies of the act.’”24 Thus, we will not disturb it.25
22
City of St Clair Shores, 22 MPER 50 (May, 2009), citing City of Detroit, (Dept of
Transportation), 1984 MERC Lab Op 937, aff’d, 150 Mich App 605 (1985); Jonesville Bd of Ed,
1980 MERC Lab Op 891.
23
Van Buren Public School Dist v Wayne Co Circuit Judge, 61 Mich App 6, 32-33; 232 NW2d
278 (1975).
24
Id. at 33 (quotations omitted).
25
Id.
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F. THE TREASURER’S REPLY BRIEF AND MOTION TO STRIKE
The Treasurer argues that MERC erred in rejecting the Treasurer’s reply brief and in
refusing to strike the Union’s response to the exceptions as untimely.
1. THE TREASURER’S REPLY BRIEF
In its May 2008 decision, MERC acknowledged that the Treasurer had filed a reply brief
in support of her exceptions. But the MERC explained that it had not considered that brief in
making is decision “because the General Rules of the Michigan Employment Relations
Commission do not permit the filing of a reply to the response to exceptions. See Rule 176 of
the Commission’s General Rules, 2002 AACS, R 423.176.” MERC went on to explain, “For the
same reason, our review of Respondent Treasurer’s Reply in Support of Motion to Strike
Charging Party’s Brief in Support of the ALJ’s Decision and Recommended Order and [her]
Answer in Opposition to Counter Motion to Strike Reply Brief, must be limited to the portion of
that document answering Charging Party’s counter motion to strike.” In its July 2008 decision
on reconsideration, MERC reiterated that such supplemental filings are not permitted under the
Commission’s General Rules.26 MERC added, “Where a party had filed a motion, Rule 161
permits any other party to file a brief in opposition to the motion. However, there is no provision
to allow the moving party to reply to the opposing party’s brief in opposition to the motion.”27
We find no legal error in MERC’s decision not to consider the Treasurer’s reply brief.
2. THE TREASURER’ S MOTION TO STRIKE
In its May 2008 decision, MERC found the Treasurer’s motion to strike the Union’s
response to the exceptions without merit, explaining as follows:
Respondent’s motion contends that Charging Party’s response to the
exceptions is untimely. Respondent asserts that her exceptions were served on the
other parties by first class mail on August 21, 2006. Therefore, the response to
the exceptions[28] or a request for an extension of time to file the response[29] was
26
Citing Brownstown Twp, 20 MPER 2 (2007); City of Grand Rapids, 19 MPER 69 (2006).
27
Citing Michigan State Univ Admin-Prof’l Ass’n, MEA/NEA, 20 MPER 45 (2007) and Kent Co
Sheriff & Kent Co, 1996 MERC Lab Op 294, 300-301.
28
MAACS R. 423.176(6) states:
Within 10 days after service of exceptions, a party may file 1 original and 4
copies of cross exceptions and briefs in support thereof, or 1 original and 4 copies
of a brief or legal memorandum in support of the decision and recommended
order. Copies of these documents shall be served on each party to the
proceedings.
29
MAACS R. 423.176(8) states:
A request for extension of time in which to file exceptions, cross exceptions or
briefs in support of the decision and recommended order shall be filed in writing
and filed with the commission before expiration of the required time for filing. At
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originally due September 5, 2006. That date was calculated by counting ten days
from the date of service pursuant to Rule 176(6), plus an additional three days
under R423.183[30] because service was by mail. But for provisions of Rule 183
that preclude setting the filing deadline on a Saturday, Sunday, or legal holiday,
the due date would have been September 3, 2006, the Sunday before the Labor
Day holiday. Accordingly, the original deadline for filing the response to the
exceptions was the next business day, September 5, 2006. Charging Party filed a
timely request for a thirty day extension of time on August 31, 2006 [sic].[31] An
extension of time is calculated by adding the amount of time requested to the
original date, provided the requested extension is for thirty days or less. Thus, the
Commission order, issued to all three parties on September 5, 2006, extended the
time within which Charging Party could file its response to the exceptions until
October 5, 2006. [Emphasis in original.]
The Treasurer does not dispute that the Union timely sought its 30-day extension.
Instead, the Treasurer argues that MERC erred in calculating the extension. According to the
Treasurer, the 30-day extension extended the Union’s filing deadline to September 30, 2006—30
days after the Union filed its request for an extension on August 30, 2006—but because
September 30, 2006, was a Saturday, the Union actually had until Monday, October 2, 2006, to
file its brief.32 And accordingly, the Treasurer argues, the Union’s response to the exceptions
was untimely when it was not filed until October 5, 2006. The Treasurer argues that MERC
erred in concluding that the Union timely filed its response to the exceptions on October 5,
thereby improperly allowing the Union 35 days in which to file its response to the exceptions.
the same time, copies of the request for extension shall be served on each of the
other parties. One extension of not longer than 30 days will be granted to the
moving party upon the filing of the request. Subsequent extensions will be
granted only upon a showing of good cause. Good cause does not include
inexcusable neglect by a party or a representative thereof.
30
MAACS R. 423.183 states:
In computing any period of time prescribed or allowed by LMA, PERA, or these
rules, the day of the act, event, or default after which the designated period of
time begins to run is not included. The last day of the period so computed is to be
included, unless it is a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day, which is neither a Saturday, Sunday, nor
legal holiday. When the period of time prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded in the
computation. Whenever a party has the right or is required to do some act within
a prescribed period after being served with a document or pleading by mail, 3
days shall be added to the prescribed period. However, 3 days shall not be added
if any extension of time has been granted.
31
As the Treasurer contends on appeal, the record reflects that the Union actually filed its
request for extension on August 30, 2006. Regardless of this discrepancy, as stated, the
Treasurer does not dispute that the Union timely sought its 30-day extension.
32
MAACS R. 423.183.
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More specifically, the Treasurer argues that MERC erred by adding a 3-day mailing grace period
to the October 2, 2006 deadline because Rule 183 expressly states that the grace period does not
apply to extensions of time.
However, it is the Treasurer who has erred in her calculations. Contrary to the
Treasurer’s contention, the 30-day extension is not calculated from the date of the filing of the
request for an extension, it is calculated by adding the extension period to the original filing
deadline.33 And we find no error in MERC’s calculations setting the original deadline as
September 5, 2006. Thus, MERC did not error in concluding that the Union’s October 5, 2006
response to the exceptions was timely and denying the Treasurer’s motion to strike.
G. ORAL ARGUMENT
The Treasurer argues that MERC erred in denying oral argument before rendering its
original and final decisions.
On May 15, 2008, MERC issued its original decision, upholding the hearing officer’s
recommended order. In that decision, MERC denied both the Treasurer’s and the Union’s
requests for oral argument, based on its finding “that oral argument will not materially assist us
in this matter[.]” And in its July 15, 2008 decision on reconsideration, MERC affirmed its prior
decision, explaining as follows:
In her motion, Respondent Treasurer contends that the Commission lacks
the authority to deny a request for oral argument because Rule 178 of the General
Rules of the Michigan Employment Relations Commission, 2002 AACS, R
423.178, does not expressly state that we may do so. Respondent Treasurer relies
on Bohannon v Sheraton-Cadillac Hotel, 3 Mich App 81 (1966) in support of her
contention that our denial of oral argument constitutes error. Respondent’s
reliance on Bohannon is misplaced as that case involved an appeal from a
Worker’s Compensation Appeal Board decision in which the appeal board
inadvertently failed to grant a request for oral argument. In Bohannon, the
applicable rule required the appeal board to schedule a hearing upon the filing of a
request for oral argument. The Rules governing proceedings on exceptions before
this Commission do not require the granting of oral argument.
The
Commission’s General Rules contain three provisions regarding oral argument:
Rule 178, which applies to oral argument before the Commission; Rule 173,
which governs oral argument before an Administrative Law Judge (ALJ); and
Rule 161(4), which addresses oral argument on motions. While Rule 173
expressly provides that, upon request, a party has a right to oral argument at the
close of a hearing before an ALJ, no such right is provided in Rule 178 or Rule
161(4). Indeed, it is implicit in the language of Rules 178 and 161(4) that the
request for oral argument may be granted or denied. Pursuant to Rule 178, the
Commission has retained the discretion to grant or deny oral argument in matters
33
See City of Detroit, 20 MPER 57 (July 2007).
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on exceptions following an ALJ’s Decision and Recommended Order. After
reviewing the record in this matter, we concluded that oral argument was not
likely to provide us with assistance in resolving this matter and exercised the
discretion to deny both Charging Party’s and Respondent Treasurer’s requests for
oral argument. [Emphasis added.]
Rule 178 states:
If a party desires to argue orally before the commission, a written request
shall accompany the exceptions, cross exceptions, or the brief in support of the
decision and recommended order, and at the same time, the request shall be
served on all other parties. The commission, on its own motion, may also direct
oral argument. The commission shall notify the parties of the time and place of
oral argument. The commission may limit the time for oral argument by each
party.[34]
As she did in the proceedings below, the Treasurer argues that MERC was without
authority to deny her request for oral argument because Rule 178 does not expressly set forth
such authority or procedures for denial. However, we find not material error in MERC’s
conclusion that its discretion in granting or denying a request for oral argument is implicit in the
rule. We further find no abuse of discretion in MERC’s decision to deny the Treasurer’s request
where MERC determined that oral argument would not materially assist in its resolution of the
matter.
We affirm.
/s/ Kirsten Frank Kelly
/s/ Henry William Saad
/s/ William C. Whitbeck
34
MAACS R. 423.178.
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