ST CLAIR CO INTER SCHL DIST V ST CLAIR CO EDUCATION ASSOC
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STATE OF MICHIGAN
COURT OF APPEALS
ST. CLAIR COUNTY INTERMEDIATE
SCHOOL DISTRICT,
FOR PUBLICATION
May 1, 2001
9:00 a.m.
Appellant/Cross-Appellee,
and
ACADEMY FOR PLASTICS
MANUFACTURING TECHNOLOGY,
Cross-Appellee,
v
No. 218135
MERC
LC No. 97-000184
ST. CLAIR COUNTY EDUCATION
ASSOCIATION,
Appellee/Cross-Appellant.
Updated Copy
June 22, 2001
Before: M.J. Kelly, P.J., and Whitbeck and Collins, JJ.
WHITBECK, J.
The St. Clair Intermediate School District (ISD) appeals as of right and challenges the
decision of the Michigan Employment Relations Commission (MERC) to affirm one of two
unfair labor practice charges brought by the St. Clair County Education Association (the union).
The union cross appeals the MERC's decision to dismiss the second unfair labor practice charge,
its petition for unit clarification, and its motion to reopen the record. We affirm the MERC
decision with regard to the appeal and the cross appeal.
I. Basic Facts And Procedural History
A. Jane Johnson's Unfair Labor Practice Charge
Jane Johnson has been a registered nurse at the ISD's Woodland Development Center, a
center for mentally and physically impaired students, for approximately seventeen years. She is
the only registered nurse the ISD employs. Johnson repeatedly sought to have her position
included among the positions for which the union would bargain in contract negotiations. The
union shared Johnson's goal of having her position added to the bargaining unit. The union's
efforts to bargain on this issue were, however, unsuccessful.
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According to ISD Superintendent Joe Caimi, several years ago Johnson had asked him for
teacher's pay, but he denied her request. Johnson was always paid the same salary as teachers in
the bargaining unit and had received all across-the-board pay increases that teachers in the unit
received. However, Johnson, whose pay was equivalent to a teacher at step three, received no
step increases in pay. Apparently, if Johnson had received these step pay increases, she would be
paid at least $16,000 more a year.
In May 1997, the union and the ISD began negotiating a new collective bargaining
agreement. The union presented its initial proposals to the ISD, including a proposal to bring
Johnson's nursing position into the bargaining unit. Shortly thereafter, Caimi discussed the
proposal with Janice Frederick, the ISD's director of special education and Johnson's supervisor.
Caimi assumed that Johnson wanted to join the bargaining unit because she believed that unit
membership would bring her a teacher's pay. Caimi told Frederick that Johnson needed to know
that this was not necessarily true; Caimi evidently wanted to make sure that "no one was deluded
into thinking" that the ISD was going to agree to pay Johnson the same salary as a teacher.
Caimi also said that "if it became an issue," the ISD might have to terminate Johnson's position
and contract for services with a local hospital. Caimi asked Frederick to meet with Johnson to
convey this information. According to Caimi and Frederick, there was no discussion between
them about Caimi's opinion of unions.
In late May 1997, Frederick approached Kenneth Adams, who was then the president of
the union. According to Adams, Frederick told him that Caimi said that if Johnson's position
were included in the bargaining unit, it would be "jobbed out" and that Johnson would be laid
off. However, Frederick said, she told Adams that if Johnson were successful in her attempt to
be admitted to the union and receive a teacher's pay, her wage would be out of the range for
registered nurses in the county and she might "place herself out of a position."
On the same day, Frederick also spoke directly with Johnson. According to Johnson,
Frederick said that if Johnson continued to "pursue union membership" there was a possibility
that she would be released and replaced. Johnson also claimed that Frederick stated that Caimi
detested unions and that there was "no way in hell that he was going to allow one more member
into the union." Frederick, however, said that she told Johnson
that if she thought union membership would bring her teachers' pay, that this was
a misperception and that her pay would be out of line with what other nurses make
in the county and we couldn't justify that sort of position for that pay and may
need to terminate the position and contract it out.
Frederick denied saying anything to Johnson about Caimi's opinion of unions.
The union and the ISD finally agreed to a new contract that did not cover Johnson or her
position. The union subsequently brought an unfair labor practice charge against the ISD,
alleging that the ISD violated subsection 10(1)(a) of the public employment relations act
(PERA)1 by telling Johnson that she would lose her job if she joined the union. Subsection
1
MCL 423.210(1)(a).
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10(1)(a) of the PERA makes it "unlawful for a public employer or an officer or agent of a public
employer . . . to interfere with, restrain or coerce public employees in the exercise of their rights
guaranteed in section 9." In turn, § 9 of the PERA2 states:
It shall be lawful for public employees to organize together or to form, join
or assist in labor organizations, to engage in lawful concerted activities for the
purpose of collective negotiation or bargaining or other mutual aid and protection,
or to negotiate or bargain collectively with their public employers through
representatives of their own free choice.
After a hearing, the MERC hearing referee determined that the ISD violated PERA subsection
10(1)(a) by interfering with Johnson's rights to join a union and to seek the union's assistance for
a salary increase when Frederick told Johnson that she would lose her job if she joined the union.
The hearing referee found that Johnson was engaged in protected activity when she sought to
become a member of the bargaining unit and when she sought the union's assistance in obtaining
a wage increase. The hearing referee did not give credit to Johnson's version of the conversation
about Caimi's negative view of unions, but concluded that, even if Frederick's testimony
regarding her conversation with Johnson were believable, her statements to Johnson constituted
"an unlawful threat." The hearing referee then commented:
The threat to terminate Johnson's position was clearly conveyed. Although
the threat to eliminate Johnson's position is tied to her receiving teachers' pay, not
to her becoming part of the bargaining unit, Frederick made no effort to
distinguish the two. The message which Caimi wanted Frederick to convey, and
the message which apparently got through to both Johnson and Adams, was the
same: stop pushing the issue of Johnson's inclusion in the unit/salary increase, or
Johnson will end up without a job.
The hearing referee recommended that the ISD be ordered to do the following:
1. Cease and desist from interfering with its employees' exercise of their
rights under Section 9 of PERA by threatening to subcontract their positions if
they form, join or assist in labor organizations, or engage in lawful concerted
activities for the purpose of collective negotiation or bargaining or other mutual
aid and protection.
2. Post the attached notice [promising that the ISD will not interfere with
employees engaging in protected activities under the PERA or threaten that they
will lose their jobs if they join the union] to employees in places on the
Respondent's premises where notices are commonly displayed for a period of 30
consecutive days.
In late February 1999, the MERC issued a decision and order adopting the hearing
referee's decision and recommended order concerning the ISD's treatment of Johnson, stating:
2
MCL 423.209.
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After carefully reviewing the record as a whole, we find that the totality of
the evidence supports the [hearing referee's] conclusion that the statement
constituted a threat in violation of Section 10(1)(a) of PERA. The clear import of
the statement is that Johnson's position would likely be eliminated if she
continued her efforts to become a member of the Union and seek the Union's
assistance in obtaining a salary increase. As noted by the [hearing referee], there
is no evidence in the record to suggest that the Employer would be forced to
terminate Johnson if she were to receive the same salary as a teacher, or that
circumstances outside the ISD's control might cause the Employer to eliminate
Johnson if her position was in fact included in the unit. See NLRB v River Togs,
Inc, 382 F2d 198 (CA2, 1967).
B. The Academy's Unfair Labor Practice Charge
The union's cross appeal involves the ISD's decisions to form a public school academy for
its defunct plastics manufacturing program and to prevent the union from bargaining on behalf of
the employees at that public school academy. The ISD created the plastics program in the 1980s
and operated it at its Technical Educational Center (the TEC) until 1992, when the ISD
discontinued the program because it could not produce graduates who were sufficiently trained to
secure jobs in the industry. In early 1996, representatives of local plastics manufacturing
companies approached the ISD about reinstating the program. The representatives informed the
ISD that they needed well-trained employees and were willing to commit time and money to
work with the ISD to create a program that would achieve this goal. Caimi told the
representatives that if they were interested in starting a plastics program, they should consider
organizing a public school academy under the relevant part of the Revised School Code.3
In March 1996, the representatives from the plastics manufacturers submitted an
application to the ISD seeking to establish a public school academy. The representatives and the
ISD subsequently drafted a contract4 to create the Academy for Plastics Manufacturing
Technology (the academy). In November 1996, the ISD submitted the contract between the ISD
and the academy, along with supporting documentation, to the Michigan Department of
Education for approval and authorization of state aid payment.
The union, however, objected to the way the contract between the ISD and the academy
dealt with personnel. In terms of hiring personnel, the contract stated in pertinent part:
All persons who perform services for the Academy shall be "at-will"
employees or volunteers of the Academy. The District agrees that the Academy
may select its personnel directly without prior authorization from the District,
3
MCL 380.501 et seq.
We have been unable to locate the contract in the lower court record. The hearing referee's
decision quotes from it extensively and, when not reprinting the text of the contract itself,
discusses the contract's substance in great detail. Because the parties have not argued that the
hearing referee misquoted or misrepresented the contract's terms and text, we rely on her
description of the contract and its policies.
4
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subject to compliance with all applicable federal and Michigan rules and
regulations, including, without limitation, requirements concerning the
recruitment of applicants and the use of background and criminal checks. The
Academy shall inform the District's Superintendent or designee of all personnel
selected in order that their hiring may be approved by the District in accordance
with Section 516 of the Act. Such approval shall not be unreasonably withheld. It
is the intent of the parties hereto not to create a joint-employer relationship. The
Academy may terminate the employment of any personnel so long as such
employees are not terminated for constitutionally impermissible reasons or
reasons prohibited by Applicable Law. All teachers and employees required to the
certified, authorized or permitted if employed in a school district as defined in the
Act, shall be required to be certified, authorized or permitted by the Academy as
well, all in compliance with Part 22 of the Act.
According to the referee's findings, the contract between the ISD and the academy also set forth a
variety of personnel policies for the academy, including: (1) when the academy makes personnel
decisions, it must comply with all state and federal laws and the terms of the contract; (2) the
academy must make all employment decisions, including prescribing employment duties and
determining compensation and other benefits; (3) the academy has the final authority on all
disciplinary matters, but could designate an individual or entity to perform the disciplinary
functions; (4) the academy must provide the ISD with a quarterly report detailing its progress,
policy development, student attendance and discipline information, and personnel matters; (5) the
academy has the authority to design and implement its educational program, curriculum, and
content standards consistent with the requirements that apply to area vocational-technical
education programs; (6) the academy must adopt and enforce its own attendance policies, which
must accommodate the attendance policies of the ISD and its component districts in a manner
that permits the local districts to comply with state compulsory attendance laws, including day
and hour requirements; (7) the academy must adopt and enforce its own student conduct policies,
policies concerning student health and welfare, and policies governing work-based instruction;
and (8) the academy has the authority to discipline students, but the academy board must make
any disciplinary decision involving a suspension of ten or more days.
Subsection 7(e) of the contract stated in part:
The Academy shall be responsible for its own operations within the
limitations of any funding provided through the District as fiscal agent to the
Academy and other revenues derived by the Academy consistent with law, and
shall have authority to independently exercise, also consistent with applicable law,
the following powers: contract for goods and services; prepare a budget; select
and direct personnel, evaluate their performance and determine their
compensation and continued employment; procure insurance; own or lease
facilities for school purposes; purchase, lease or rent furniture, equipment and
supplies; and accept and expend gifts, donations or grants of any kind in
accordance with such conditions prescribed by the donor as are consistent with
law and all other powers provided by law, not contrary to any of the terms of this
Contract. The District shall be given written notice of all accepted gifts,
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donations and grants, and any condition thereof, within ten (10) business days of
receipt.
As the hearing referee explained:
As provided by statute,[5] the ISD is the fiscal agent for the Academy and
has general oversight of the Academy's fiscal status. The academy must submit to
the ISD a copy of its annual budget and a monthly revenue and expenditure report.
The Academy receives state aid calculated on a per pupil basis, and has also
obtained grants. The Academy pays the ISD for a variety of business and
administrative services the ISD provides to it. The ISD also pays the Academy for
"educational services," i.e., plastic manufacturing and metal machining instruction
provided to students of the ISD.
The initial board of trustees of the academy consisted of five representatives from different local
plastics manufacturing companies, including three chief operating officers. Under the articles of
incorporation, the ISD could increase the number of trustees to a maximum of nine individuals.
The articles of incorporation required the academy to submit a list of nominees for a trustee
position to the ISD, the district then had the task of appointing the new trustee from that list.
Either the board of the ISD or the board of the academy could remove a trustee by a two-thirds
vote.
In late 1996, the academy began its operations at the TEC facility with one instructor and
six students. Pursuant to the contract between the academy and the ISD, the academy hired the
instructor, who did not become part of the union's bargaining unit. Under the service contract
attached to the main contract, the ISD provided the academy with a range of services and the
academy reimbursed the ISD for those services. Fred Stanley oversaw operations at the academy
and also became its director.
In early 1997, the ISD offered to transfer its existing metal machine tool program to the
academy. The ISD told the academy that the academy would continue to control its own
membership, set policy, and hire and direct its own staff. The academy accepted the proposal.
Accordingly, the ISD and the academy amended the existing contract to include the metal
machine tool program.
5
Part 6A of the Revised School Code, MCL 380.501 et seq.
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In late May 1997, during negotiations for a new collective bargaining agreement, the
union proposed that the ISD include "teachers employed by another district" in the bargaining
unit. The ISD rejected the proposal, and it was not included in the new collective bargaining
agreement.
In mid-June 1997, the academy posted a vacancy notice for a new metal machine
instructor position. The ISD fired the instructor it had hired and the academy hired him. In late
July 1997, the union wrote Caimi:
The [union] hereby demands to bargain over the [ISD's] status as a joint
employer with the Academy . . . . Based upon our investigation of documents
which we gathered through the Freedom of Information Act requests to the ISD
and Academy, as well as the recent job posting of the Metal Machining Instructor
at the Academy, it is our belief that the ISD and Academy are operating as joint
employers . . . .
Caimi responded to the letter in mid-August 1997, rejecting the union's claim that the ISD and
the academy jointly employed the academy's employees. According to Caimi, therefore, the ISD
was not required to bargain with the union over the terms and conditions of employment of the
academy's employees.
The union filed its unfair labor practices charge in late August 1997. It contended that the
ISD and the academy were joint employers or that the academy was an alter ego of the ISD.
Consequently, according to the union, their unilateral removal of the metal machine instructor
position from the union's bargaining unit violated PERA subsection 10(1)(e),6 which states in
pertinent part that it is "unlawful for a public employer or an officer or agent of a public
employer . . . to refuse to bargain collectively with the representatives of its public employees . . .
."
In late September 1998, the hearing referee issued a decision and recommended order,
finding that the ISD and the academy did not violate PERA subsection 10(1)(e) by refusing to
bargain with the union over the metal machine instructor position at the academy. The referee
explained that the ISD and the academy were not required to bargain with the union over that
position. Underlying this conclusion was the hearing referee's determination that the ISD and the
academy did not jointly employ the academy's employees because the ISD did not have sufficient
independent control over them. Because she concluded that they were not joint employers, the
referee recommended dismissing the union's petition for unit clarification.
In the same order and decision that addressed Johnson's unfair labor practice charge, the
MERC also considered the hearing referee's findings and conclusions concerning the union's
claim that because the ISD and the academy jointly employed the academy's employees, the
academy engaged in unfair labor practices by excluding the metal machine instructor position
from collective bargaining:
6
MCL 423.210(1)(e).
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[T]he [hearing referee's] conclusion that the ISD and the Academy are
separate employers was based primarily on her finding that the school district did
not have sufficient independent control over the employment relationship so that
it should be represented at the bargaining table when an agreement is made with
regard to the wages, hours and working conditions of the Academy employees. In
so holding the [hearing referee] properly applied the definition of "employer"
under PERA as set forth in Wayne Co Civil Service Comm'n v Wayne Co Bd of
Supervisors, 22 Mich App 287 (1970), rev'd in part on other grounds 384 Mich
363 (1971). In that case, the Court held that under PERA the term "employer"
means an entity that has the power and responsibility to (1) select and engage the
employee, (2) pay the wages, (3) dismiss an employee, and (4) control the
employee's conduct, including the method by which the employee carries out his
or her work. Id. at 294. See also St Clair Co Prosecutor v AFSCME, 425 Mich
204, 288 (1986); City of Grand Rapids, 1997 MERC Lab Op 358, 364. We agree
with the [hearing referee] that the oversight responsibilities of the ISD do not
constitute sufficient independent control over the terms of the employment
relationship between the Academy and its employees to support a finding that
Respondents are joint employers under the Act.
The MERC denied the union's motion to reopen the record to introduce evidence that the ISD
moved the electromechanic/hydraulic program to the academy in August 1998. The MERC
reasoned that evidence of this allegation would be insufficient to establish that the ISD and the
academy were joint employers of the academy's employees. Thus, the MERC adopted the
referee's decision and proposed order concerning the academy.
II. Arguments On Appeal
The ISD now argues that the MERC erred in determining that it violated PERA
subsection 10(1)(a) by interfering with Johnson's rights to join the union and to seek union
assistance for a salary increase. The union, in turn, argues that the MERC erred in determining
that the ISD and the academy did not violate PERA subsection 10(1)(e) by refusing to bargain
with the union over the metal machine instructor position. Central to the union's argument on
this point is its claim that the ISD and the academy were required to bargain over that position
because they jointly employed the academy's employees. Further, the union claims that the
MERC erred in denying its request to reopen the proofs so that it could submit new evidence
related to this unfair labor practice charge.
III. Standard Of Review
We review MERC decisions "'pursuant to Const 1963, art 6, § 28, and MCL
423.216(e).'"7 The MERC's factual findings are "'conclusive if they are supported by competent,
7
Police Officers Ass'n of Michigan v Fraternal Order of Police, Montcalm Co Lodge No 149,
235 Mich App 580, 586; 599 NW2d 504 (1999), quoting Grandville Municipal Executive Ass'n v
City of Grandville, 453 Mich 428, 436; 553 NW2d 917 (1996).
-8-
material, and substantial evidence on the record considered as a whole.'"8 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."9 The MERC's legal conclusions may not be overturned
unless they violate the constitution, a statute, or are grounded in "'a substantial and material error
of law.'"10 In contrast to the MERC's factual findings, its legal rulings "are afforded a lesser
degree of deference"11 because review of legal questions remains de novo, even in MERC
cases.12
IV. The PERA Subsection 10(1)(a) Violation
We agree with the hearing referee and the MERC that the ISD interfered with Johnson's
right to join a union. Frederick did not expressly state that the ISD would discharge Johnson if
she joined the union. Yet Fredrick's meaning was clear. As the hearing referee put it, Frederick
conveyed to Johnson that either she could stop her effort to join the bargaining unit and to
increase her salary, or she could lose her job. Further, Frederick made no effort to distinguish, as
the ISD apparently would have us do, between the threat to eliminate Johnson's position if she
sought teacher's pay and the threat to eliminate Johnson's position if she continued to seek to be
included within the bargaining unit. That there was a threat cannot be doubted and we agree with
the hearing referee and the MERC that, interpreted reasonably, this threat related to Johnson's
desire to have the union represent her. There was competent, material, and substantial evidence
on the whole record to support the conclusions of the hearing referee and the MERC that this
conduct violated PERA subsection 10(1)(a) because it was an attempt to coerce Johnson while
she was engaged in the exercise of her rights guaranteed in § 9 of the PERA.
The history of labor relations in this country illustrates that workers and union advocates
have had to fight, and often fight hard, merely for the right to form labor organizations and to
bargain collectively with their employers through representatives of their own choosing. We
must remember, as one commentator observed, that "labor began as a criminal conspiracy."13
However, the Norris-LaGuardia Act,14 the National Labor Relations Act15 and, in Michigan, the
labor mediation act16 and the PERA17 guaranteed the right to form labor associations and to
8
Id.
In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994).
10
Police Officers, supra at 586, quoting Grandville, supra at 436.
11
Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 403; 597
NW2d 284 (1999).
12
See Kent Co Deputy Sheriff's Ass'n v Kent Co Sheriff, 463 Mich 353, 357, n 8; 616 NW2d 677
(2000).
13
See Geoghegan, Which Side Are You On? (New York: Farrar, Straus & Giroux, 1991), p 6.
14
29 USC 101 et seq.
15
29 USC 151 et seq.
16
MCL 423.1 et seq.
9
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engage in collective bargaining. Now, to most, these rights are as familiar as the constitutional
guarantees of freedom of speech and freedom of the press.18 However, the road from criminal
conspiracy to familiar cultural institution has often been a rocky one. More often than some may
care to recognize, those who have sought to exercise their statutory rights to organize have faced
opposition—ranging from mild intimidation to the most direct forms of outright coercion—when
attempting to do so.19 While this case may not present the most egregious form of such coercion,
it nevertheless demonstrates how vigilant the law must be.
V. The alleged PERA Subsection 10(1)(e) Violation
A. The Joint-Employer Doctrine
The joint-employer doctrine is used to enforce a labor agreement entered into through
collective bargaining against a party that did not sign the agreement.20 In effect, the doctrine
deems the party that did not sign the agreement as the employer under the agreement by
examining whether that party has the characteristics of an employer. Those characteristics
include (1) the power to select and hire employees, (2) the payment of wages, (3) the authority to
dismiss employees, and (4) power and control over employees' conduct.21
B. Ultimate Authority
We conclude that the MERC correctly determined that the ISD and the academy did not
violate PERA subsection 10(1)(e) by refusing to bargain with the union concerning the metal
machine instructor position because the ISD and the academy did not jointly employ the
academy's employees. Under the relevant part of the Revised School Code22 and the contract
between the ISD and the academy, the academy had the ultimate authority to hire, fire, and
discipline its employees. The academy also determined the wages, benefits, and work schedule
of its employees. The ISD, on the other hand, certainly had extensive oversight responsibilities
(…continued)
17
MCL 423.201 et seq.
See US Const, Am I.
19
See, generally, General Teamsters Union, Local No 406 v Uptown Cleaners & Hatters, Inc,
356 Mich 204; 97 NW2d 593 (1959).
20
See, generally, American Federation of State, Co & Municipal Employees v Dep't of Mental
Health, 215 Mich App 1, 3; 545 NW2d 363 (1996); see also St Clair Prosecutor v American
Federation of State, Co & Municipal Employees, AFL-CIO, St Clair Co General Employees
Chapter, Local 1518, 425 Mich 204, 224, n 2; 388 NW2d 231 (1986); Ottawa Co v Jaklinski,
423 Mich 1, 13; 377 NW2d 668 (1985).
21
Michigan Council 25, American Federation of State, Co & Municipal Employees, AFL-CIO v
St Clair Co, 136 Mich App 721, 736; 357 NW2d 750 (1984), rev'd in part on other grounds 425
Mich 204, 233; 388 NW2d 231 (1986), citing Wayne Co Civil Service Comm v Wayne Co Bd of
Supervisors, 22 Mich App 287, 294; 177 NW2d 449 (1970), rev'd in part on other grounds 384
Mich 363; 184 NW2d 201 (1971).
22
MCL 380.501 et seq.
18
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required by law.23 However, the ISD did not exercise independent control over the academy's
employees on a daily basis and to such a pervasive extent that it could reasonably be considered
their employer, whether independent of or jointly with the academy. The MERC therefore did
not err in dismissing the union's claim that the ISD unlawfully refused to bargain with regard to
the academy's employees.24 Moreover, because the ISD did not employ the academy's
instructional staff, the MERC also correctly dismissed the union's petition for unit clarification.
C. The PERA's Supremacy
The union also claims that the ISD and the academy should be considered joint employers
of the academy's employees because PERA § 9 is the Legislature's primary vehicle for defining
employees' rights to organize. The union argues that the public school academies legislation in
the Revised School Code25 conflicts with the PERA. The union contends that if the ISD and the
academy are not considered joint employers, then the ISD will be allowed to escape its obligation
to bargain with unions simply by transferring all its assets, programs, and staff to the academy
while still maintaining the control it would exercise had the assets, programs, and staff remained
within the ISD. This, the union argues, would defeat the PERA's purposes of allowing unions to
exist and barring employers from impeding employees' efforts to take part in union activities.
The case law that the union cites for the proposition that the PERA contains a legislative
endorsement of the right to unionize is plentiful. In Detroit Bd of Ed v Parks,26 the Supreme
Court required a provision of the teacher tenure act27 that conflicted with the PERA to cede to the
PERA. As the Supreme Court noted:
"This Court has consistently construed the PERA as the dominant law
regulating public employee labor relations." Rockwell v Crestwood School Dist
[393 Mich 616, 629; 227 NW2d 736 (1975)]. See, also, Local 1383,
International Ass'n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich 642;
311 NW2d 702 (1981); Central Michigan University Faculty Ass'n v Central
Michigan University, 404 Mich 268; 273 NW2d 21 (1978). When there is a
23
See MCL 380.502(4), 380.503(5).
Like the hearing referee, we also note that the Revised School Code does not use the terms
"intermediate school district" and "school district" interchangeably. See MCL 380.4(4)
("'Intermediate school district' means a corporate body established under part 7," referring to
MCL 380.601 et seq.), MCL 380.6(1) ("'School district' . . . means a general powers school
district organized under this act, regardless of previous classification, or a school district of the
first class."). As a result, the requirement that a public school academy's employees be covered
under the authorizing "school district's" collective bargaining agreement does not apply in this
case. See MCL 380.502(3)(i), 380.503(5)(e).
25
MCL 380.501 et seq.
26
Detroit Bd of Ed v Parks, 417 Mich 268, 280-283; 335 NW2d 641 (1983).
27
MCL 38.101.
24
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conflict between PERA and another statute, PERA prevails, diminishing the
conflicting statute pro tanto.[28]
There are, however, two problems with the union's argument.
First, unlike the irreconcilable conflict between the language in the PERA and the teacher
tenure act addressed in Detroit Bd of Ed, here the union has not pointed to any explicit provision
in the Revised School Code that allegedly conflicts with the PERA. Identifying conflicting
legislative provisions is a critical analytical step. This is so because an appellate court's first duty
is to harmonize, if possible, apparently conflicting legislative enactments in order to carry out the
Legislature's intent to the fullest extent possible.29 We agree with the union that nothing in
subsection 502(3)(i) of the Revised School Code would prevent the joint-employer doctrine from
applying in this case, largely because subsection 502(3)(i) concerns traditional public schools,
not intermediate school districts. However, we cannot agree with the union that there is a
conflict between the Revised School Code and the PERA because, even with this citation of
subsection 502(3)(i), we do not know the precise nature of this alleged statutory conflict.
The second problem with the union's argument is that it fails to recognize that, even with
the supervisory role the ISD retains over the academy, it nevertheless gave up a significant
amount of control and authority by transferring the metal machine program. When considering
the ISD's relationship with the academy as a whole, this loss of authority may not be exactly
proportionate to the assets and staff transferred to the academy. However, it is enough to
conclude that the academy is not merely the ISD's alter ego or a sham entity. As the referee
noted, manufacturers, not the ISD, initially developed the idea of a public school academy that
would teach metal machining to meet industry needs. As far as we can tell from the record,
while the ISD may have been pleased with the effect that forming the academy had on its
dealings with the union, the ISD did not take advantage of this situation in order to avoid its
obligation to negotiate with unions under the PERA.
D. Reopening The Record
The union also argues that the MERC erred in denying its motion to reopen the record to
introduce evidence that the ISD moved its electromechanic/hydraulics program to the academy in
August 1998. To merit reopening the record, the union had to demonstrate that it "could not with
reasonable diligence have discovered and produced the evidence at the original hearing" and that
"the evidence sought to be introduced, and not merely its materiality, is newly discovered."30
28
Detroit Bd of Ed, supra at 280; see also Irons v 61st Judicial Dist Court Employees Chapter of
Local No 1645, 139 Mich App 313, 320-321; 362 NW2d 262 (1984).
29
See People v Schneider, 119 Mich App 480, 485-486; 326 NW2d 416 (1982); see also
Grievance Administrator v Deutch, 455 Mich 149, 175, n 2; 565 NW2d 369 (1997) (Mallett,
C.J., dissenting).
30
See Schoolcraft College Ass'n of Office Personnel, MESPA v Schoolcraft Community College,
156 Mich App 754, 762; 401 NW2d 915 (1986); see also 1979 AC, R 423.468(2) ("The
commission may reopen a record in any case and receive further evidence, may close the case
(continued…)
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While this is a foundational requirement for reopening the record, the case law on this point
nevertheless makes it clear that reopening the record is discretionary, by saying that the record
"may" be reopened with this proof.31 Though the union had not been able to present this
evidence any earlier because the second program transfer did not occur until after the hearing
referee issued her decision and recommended order, the MERC did not abuse its discretion in
denying the request. This evidence would not be enough to prove that the ISD and the academy
were joint employers and, in turn, have any effect on the administrative proceedings.
Affirmed.
Collins, J., concurred.
/s/ William C. Whitbeck
/s/ Jeffrey G. Collins
M.J. Kelly, P.J., did not participate.
(…continued)
upon compliance with the administrative law judge's recommended order, or may make other
disposition of the case.").
31
Schoolcraft College, supra at 762; see, generally, Omne Financial, Inc v Shacks, Inc, 460 Mich
305, 318; 596 NW2d 591 (1999) ("The . . . use of the word 'shall' rather than 'may' . . . indicates a
mandatory, rather than discretionary, action.").
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