JAMES WOODMAN V MIESEL SYSCO FOOD SERVICE CO
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES WOODMAN,
Plaintiff-Appellee/Cross-Appellant,
v
MIESEL SYSCO FOOD SERVICE COMPANY
and KENNETH ANGELOSANTO,
Defendants-Appellants/CrossAppellees.
FOR PUBLICATION
November 26, 2002
9:00 a.m.
No. 226001
Wayne Circuit Court
LC No. 97-702308-CL
Updated Copy
February 14, 2003
Before: O'Connell, P.J., and Griffin and Hoekstra, JJ.
O'CONNELL, P.J. (dissenting).
I respectfully dissent. The majority opinion impliedly concludes that a conflict exists
between the Family and Medical Leave Act (FMLA), 29 USC 2611 et seq., and defendants'
collective bargaining agreement (CBA). I disagree. Since the FMLA and the CBA are not in
conflict, and each is clear on its face, I conclude that the employer has not violated the FMLA
and plaintiff 's employment was properly terminated under the CBA.
In Staff v Johnson, 242 Mich App 521, 530; 619 NW2d 57 (2000), this Court stated, "To
determine whether there is a real conflict between a statute and a court rule, both are read
according to their plain meaning." Applying this reasoning analogously when comparing the
FMLA and the CBA, there exists no conflict. The majority, ante at ___, states that "the FMLA
itself is silent regarding notice requirements . . . " The CBA provides that an absence of three
consecutive days requires written medical notification. Reading the FMLA and the CBA in
conjunction with each other, I conclude that the plaintiff bargained for, and received, pursuant to
the terms of the CBA, a period of three days in which no written medical authorization needed to
be presented to his employer. However, after three days the CBA requires written notification
from an authorized medical professional.
The FMLA intentionally leaves open the notice requirement. In my opinion, this allows
employers and employees to bargain for the usual and customary terms and conditions of
employment within a particular industry without violation of the FMLA. I concur with the
majority opinion that the FMLA grants the secretary of labor authority to promulgate regulations
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implementing the FMLA. However, when the act itself is clear, there exists no reason to refer to
the regulations implementing the act.
The majority, in order to reach a result not within the plain language of the FMLA, relies
on the regulations implementing the FMLA. "Regulations promulgated pursuant to such an
express delegation of authority 'are given controlling weight unless they are arbitrary, capricious,
or manifestly contrary to the statute.'" Miller v AT&T Corp, 250 F3d 820, 833 (CA 4, 2001),
quoting Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837, 844; 104 S Ct
2778; 81 L Ed 2d 694 (1984). Thus, in my opinion, the controlling weight test of the regulations
is only resorted to if the FMLA is not clear or a conflict exists. Because both the FMLA and the
CBA are clear and not in conflict, there is no need to rely on the implementing regulations to
resolve this dispute. I do not believe the secretary of labor's implementing regulations take
precedence over the clear language of the FMLA.
When read together, the FMLA and the CBA are not in conflict. Because they are not in
conflict, the CBA controls the terms and conditions of employment. I would reverse the trial
court's order and affirm the employer's right to terminate plaintiff 's employment under the terms
and conditions of the CBA.
/s/ Peter D. O'Connell
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