INGHAM COUNTY V CAPITOL CITY LODGE NO 141 FOP
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STATE OF MICHIGAN
COURT OF APPEALS
INGHAM COUNTY and INGHAM COUNTY
SHERIFF,
FOR PUBLICATION
April 3, 2007
9:05 a.m.
Respondents-Appellants,
v
No. 263956
MERC
LC No. 03-000089
CAPITOL CITY LODGE NO. 141 OF THE
FRATERNAL ORDER OF POLICE, LABOR
PROGRAM, INC.,
Charging Party-Appellee.
Official Reported Version
Before: Whitbeck, C.J., and Bandstra and Schuette, JJ.
WHITBECK, C.J.
This case arose when respondents Ingham County (the county) and Ingham County
Sheriff (the sheriff) disciplined Detective Laurie Siegrist, the division president of the charging
party, Capitol Lodge No. 141 of the Fraternal Order of Police, Labor Program, Inc. (the union).
The county and the sheriff charged that Detective Siegrist violated the sheriff 's written work
rules when, without prior authorization, she faxed to an attorney for the union an internal
memorandum regarding a new policy that required all detectives to wear pagers while on and off
duty. The union then filed a grievance for unfair labor practice against the county and the sheriff
with the Michigan Employment Relations Commission (MERC). The hearing referee concluded
that the county and the sheriff violated MCL 423.210(1)(a) and (c) of the public employment
relations act (PERA)1 by enforcing the rule requiring prior authorization against Detective
Siegrist. MERC adopted the hearing referee's recommendation. The county and the sheriff
appeal as of right that MERC order. We reverse.
I. Basic Facts And Procedural History
A. Undisputed Facts
1
MCL 423.201 et seq.
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We quote the following facts from the decision and recommended order of the hearing
referee, which were adopted by MERC and are not in dispute. The findings of MERC "with
respect to questions of fact if supported by competent, material, and substantial evidence on the
record considered as a whole shall be conclusive."2
Rule 106 of [the sheriff 's] internal rules and regulations is entitled
"Records and Information Security." It provides, in relevant part:
The Department recognizes that its Members, by virtue of their position,
will gain access to sensitive and restricted information. What is learned as a
Member cannot be disseminated for other than Departmental purposes and then
only through approved procedures.
All information, records, software, hardware, data and related equipment
used, maintained, owned, produced, licensed, or managed by the Department are
the property of the Department and may not be used, copied, reproduced,
released, or viewed except in accordance with Department procedures.
No Departmental documents to include, but not limited to, reports,
photographs, memos, and official records shall be released to the public without
authorization and in compliance with the Freedom of Information Act.
On March 11, 2003, Lieutenant Jeff Joy used Respondent's e-mail system
to send the following memo to all Respondent's detectives, including Siegrist:
"Re: Pagers
"It's been brought to my attention that some of you are under the
impression that you do not have to carry your department pager with you off duty.
This is [sic] memo is to inform you that you are required to carry your pager with
you when you are on and off duty. If you have any questions, I will be available."
[Emphasis in original.]
Later that day, two detectives asked Siegrist if [the sheriff] could lawfully
implement a new rule requiring them to wear pagers off duty. Siegrist told them
she was not sure. Siegrist phoned [the union's] attorney, R. David Wilson. They
discussed the issue, and Wilson asked her to fax him a copy of the memo.
On March 12, Wilson sent . . . Undersheriff Matthew Myers the following
letter:
2
MCL 423.216(e).
-2-
"The attached memorandum was just forwarded to my office by Lodge
representatives for my consideration and review.
"I am informed that members of the Detective Bureau have never been
required to carry their Department pager when they are off duty. Obviously, the
attached memorandum changes this requirement. Aside from on-call overtime
considerations, such a change constitutes a change in working conditions that
requires collective bargaining before the change can be implemented. As I am
sure you know, no bargaining regarding this issue has ever taken place.
"The purpose of this letter is to demand that collective bargaining
proceedings regarding this issue occur before this change in working conditions is
implemented." [Emphasis in original.]
On March 17, Myers sent a memo to all detectives with a copy of the [sic]
Wilson's March 12 letter attached. The memo stated that an internal document
authored by Lieutenant Joy was distributed to Wilson without authorization, and
that this action violated Department Rule 106.
On March 20, Siegrist received a written verbal warning[3] for violating
Rule 106. The warning, which was placed in Siegrist's personnel file, stated:
"Even though you are the Union President you do not have the right to
freely distribute Department memo's [sic] and/or documents. It is not for you to
decide which documents are to be made public. Your union has the ability to
request public documents and certainly knows the procedure for doing this. The
Sheriff 's Office cannot and will not tolerate employees (even those who are union
representatives) freely circulating Sheriff 's Office documents. Procedures are in
place to release documents and those procedures must be followed." [MERC
hearing referee decision and recommended order.]
B. The Hearing Referee's Conclusion
The hearing referee concluded that disciplining Detective Siegrist for giving a copy of
the memorandum to the union's attorney violated PERA by infringing on Detective Siegrist's
right to engage in protected "concerted activities." More specifically, the hearing referee
concluded that Detective Siegrist was engaged in lawful concerted activity when she sought the
union attorney's opinion regarding a condition of employment.
The hearing referee
acknowledged that the union was not directly challenging rule 106; she recognized that "the only
issue here is whether [the sheriff] could lawfully discipline an employee for violating an
3
While it may sound like an oxymoron, a "written verbal warning" is an established disciplinary
measure used in the sheriff 's department's disciplinary scheme.
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otherwise legitimate work rule in the course of conduct that would otherwise be protected by
PERA." Continuing her analysis, the hearing referee stated as follows:
[The Sheriff] argues that instead of giving Wilson a copy of the memo,
Siegrist could have made a formal request for the document.1 However, Siegrist
testified that when she read the memo she did not know whether it constituted a
violation of [the sheriff 's] bargaining duty. Siegrist had a legitimate interest in
discussing the memo with Wilson without [the sheriff] knowing about their
discussion. Moreover, by providing Wilson with a copy of the memo, Siegrist
ensured that Wilson knew exactly what [the sheriff] had told employees, so he
could accurately determine whether [the sheriff] had overstepped its rights. I also
conclude that [the sheriff] did not establish a legitimate and substantial business
justification for applying Rule 106 to Siegrist's conduct. [The sheriff] has a
legitimate interest in preventing the unauthorized disclosure of confidential
information and documents to the public. However, [the sheriff] did not offer a
business justification for prohibiting Siegrist, a member of the [union's]
bargaining [unit], from giving Wilson, a non-employee agent of [the union], a
document clearly relevant to the wages, hours, and terms and conditions of
employment of bargaining unit employees. Balancing [the sheriff 's] general
interest in protecting the confidentiality of its information against the effect of the
discipline on Siegrist's ability to exercise her Section 9 rights, I conclude that [the
sheriff] violated Section 10(1)(a) and (c) by disciplining Siegrist . . . .
1
[The sheriff] admits that, upon receipt of a proper request, it would have been
required to provide [the union] with a copy of Joy's memo pursuant to [the
sheriff 's] duty to provide information and/or the Michigan Freedom of
Information Act, MCL 15.231 et seq.
__________________________________________________________________
The hearing referee recommended that MERC enter an order directing Ingham County
to: (1) cease and desist from applying rule 106 in a way that "interferes, restrains or coerces
employees in the exercise of their rights guaranteed under Section 9 of PERA"; (2) remove the
relevant written verbal warning from Detective Siegrist's personnel file; and (3) post a notice to
employees regarding this matter.
C. MERC's Decision
MERC subsequently adopted the hearing referee's recommended order as its order. In its
opinion, MERC concluded as follows:
No claim is made, nor is there evidence to support a claim, that Siegrist's
disclosure to [the union's] attorney dealt with a confidential matter pertaining to
security. The [sheriff] argues that [the union] had no right to receive the
document disclosed by Siegrist. It does not dispute [the union's] right to receive
the information contained in that document.
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MERC declined "to hold that the [sheriff 's] legitimate business interest permits it to ban
disclosures that categorically include communications protected by PERA." According to
MERC:
Although an employer has a legitimate business interest in preventing the
unauthorized disclosure of confidential information, there has been no showing
here of a business justification for prohibiting Siegrist from giving [the union's]
attorney a document pertaining to a condition of employment affecting bargaining
unit employees. Siegrist was engaged in lawful concerted activity within the
meaning of Section 9 of PERA when she sought Wilson's opinion as to [the
sheriff 's] right to require, without bargaining, that bargaining unit members wear
pagers while off duty. Where there is no overriding legitimate business interest in
protecting the information from disclosure, rights guaranteed by PERA remain
paramount.
II. PERA Violation
A. Standard Of Review
The county and the sheriff argue that MERC erred by holding that the county and the
sheriff violated PERA by disciplining Detective Siegrist for disseminating the memorandum to
the union's attorney. This Court reviews MERC decisions to determine whether they were
"authorized by law."4 A MERC decision may be set aside on appeal if it is based on a
"substantial and material error of law."5 This Court reviews de novo MERC's legal conclusions.6
B. Relevant Authority
The relevant statutory provisions in this case of first impression are §§ 9 and 10 of
PERA. Section 9 states, in pertinent part, that "[i]t shall be lawful for public employees . . . to
engage in lawful concerted activities for the purpose of collective negotiation or bargaining or
other mutual aid and protection . . . ."7 Further, § 10 makes it "unlawful for a public employer or
an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees
in the exercise of their rights guaranteed in section 9; . . . [or] (c) to discriminate in regard to
hire, terms or other conditions of employment in order to encourage or discourage membership
in a labor organization . . . ."8
4
Const 1963, art 6, § 28.
5
MCL 24.306(1)(f).
6
Michigan Ed Ass'n v Christian Bros Institute of Michigan, 267 Mich App 660, 663; 706 NW2d
423 (2005).
7
MCL 423.209.
8
MCL 423.210(1)(a) and (c).
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To analyze whether an employer can lawfully apply an employment rule to discipline an
employee for engaging in what would otherwise be a protected activity under § 9 of PERA, we
apply a three-part test. Under the first prong of the test, we look at whether the employer's action
adversely affected the employee's protected right to engage in lawful concerted activities under
PERA.9 Under the second prong, we look at whether the employer has met its burden to
demonstrate a legitimate and substantial business justification for instituting and applying the
rule.10 Finally, under the third prong, we balance the diminution of the employee's rights
because of application of the rule against the employer's interests that are protected by the rule.11
In addressing this final prong, we must remain cognizant that "'[it] is the primary responsibility
of the Board and not of the courts "to strike the proper balance between the asserted business
justifications and the invasion of employee rights in light of the Act and its policy."'"12
C. Protected Activity
In applying the first prong of the test, MERC concluded that "Siegrist was engaged in
lawful concerted activity within the meaning of Section 9 of PERA when she sought [the union
attorney's] opinion as to [the sheriff 's] right to require, without bargaining, that bargaining unit
members wear pagers while off duty." The county and the sheriff argue that MERC erred in this
conclusion because Detective Siegrist's act of giving the memorandum to the union's lawyer is
not a protected activity under PERA.
"As a general proposition PERA does not proscribe breach of a collective bargaining
agreement or 'unfairness'; an employee may be terminated for a 'good reason, bad reason, or no
reason at all.' But an employee may not be discharged for exercising rights guaranteed by § 9 of
the act."13 As mentioned, § 9 permits public employees "to engage in lawful concerted activities
for the purpose of collective negotiation or bargaining or other mutual aid and protection . . . ."
According to the United States Court of Appeals for the Third Circuit, to qualify as a protected
activity, "it must appear at the very least that it was engaged in with the object of initiating or
inducing or preparing for group action or that it had some relation to group action in the interest
9
See also Jeannette Corp v Nat'l Labor Relations Bd, 532 F2d 916, 918 (CA 3, 1976). Because
of the similarity between PERA and the National Labor Relations Act (NLRA), 29 USC 151 et
seq., this Court may appropriately look to federal precedent for guidance. Michigan Employment
Relations Comm v Reeths-Puffer School Dist, 391 Mich 253, 260 n 10; 215 NW2d 672 (1974).
10
See Jeannette Corp, supra at 918.
11
See id.
12
Id., quoting Nat'l Labor Relations Bd v Fleetwood Trailer Co, Inc, 389 US 375, 378; 88 S Ct
543; 19 L Ed 2d 614 (1967), quoting Nat'l Labor Relations Bd v Great Dane Trailers, 388 US
26, 33-34; 87 S Ct 1792; 18 L Ed 2d 1027 (1967).
13
Reeths-Puffer, supra at 258-259, quoting Nat'l Labor Relations Bd v Century Broadcasting
Corp, 419 F2d 771, 778 (CA 8, 1969). We recognize that this case involves employee discipline
rather than discharge, but the same principles apply equally here.
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of the employees."14 Further, the Michigan Supreme Court has explained that "[a]n employee
may, in connection with the prosecution of a good faith grievance, employ reasonable,
nonabusive, methods of obtaining information necessary to prosecute the grievance."15
The union argues that it is well established that an employer under PERA must make
information that is necessary to negotiate or administer the terms of the parties' labor agreement
available to the union. Thus, the union argues, the sheriff 's application of rule 106 to the facts of
this case constitutes an unfair labor practice because the rule unreasonably restricts the union's
ability to represent its members and effectively enforce the terms of the labor agreement. We
disagree. In sum, we hold that the sheriff 's action did not adversely affect Detective Siegrist's
protected right to engage in lawful concerted activities under PERA.
In her hearing testimony, Detective Siegrist admitted that she received a copy of the
memorandum in her capacity as a sheriff 's department detective, but she asserted that she
released the memorandum to the union's attorney in her capacity as a union representative. The
Michigan Supreme Court has recognized that subjects such as hourly rates of pay, overtime pay,
layoffs, discharges, workloads, vacation and holiday pay, sick leave, pensions, no-strike clauses,
profit-sharing plans, grievance procedures and arbitration, work rules, seniority and promotion,
compulsory retirement age, and management-rights clauses, etc., are examples of mandatory
subjects of bargaining.16 Therefore, there can be no question that Detective Siegrist's conduct of
obtaining information, i.e., seeking advice from the union's attorney, appears to have been done
with the object of preparing for group action in the interest of the employees.17
14
Mushroom Transportation Co, Inc v Nat'l Labor Relations Bd, 330 F2d 683, 685 (CA 3,
1964). We note that the Michigan Supreme Court has clarified that "the filing of a grievance by
even a single employee constitutes protected concerted activity." Reeths-Puffer, supra at 261
(emphasis in the original).
In holding that an employee may not be discharged for the filing of a
grievance, the NLRB and the Courts of Appeals have rejected arguments that the
filing of an individual grievance is not "concerted" activity for the purpose of
"collective" negotiation or bargaining or other "mutual" aid and protection. They
reasoned that a person who in good faith asserts an individual grievance based on
a provision of a collective bargaining agreement should be protected because "the
collective bargaining agreement is the result of concerted activities by the
employees for their mutual aid and protection." [Id., quoting Nat'l Labor
Relations Bd v Selwyn Shoe Mfg Corp, 428 F2d 217, 221 (CA 8, 1970).]
15
Reeths-Puffer, supra at 264.
16
Central Mich Univ Faculty Ass'n v Central Mich Univ, 404 Mich 268, 278; 273 NW2d 21
(1978); Pontiac Police Officers Ass'n v City of Pontiac, 397 Mich 674, 680-681; 246 NW2d 831
(1976).
17
Mushroom Transportation, supra at 685; Reeths-Puffer, supra at 264.
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However, Detective Siegrist admits that she was aware of rule 106 at the time she faxed
the memorandum to the union's attorney. Indeed, the record reflects that Detective Siegrist has
requested and received internal sheriff 's department documents on numerous occasions, and the
sheriff has never denied even one of Detective Siegrist's requests for internal documents.
Further, there is no question that Detective Siegrist did not request or receive authorization to
release the memorandum at issue. And the county and the sheriff have never asserted that if
Detective Siegrist had made a proper request, such request would have been denied. Thus, there
can be no reasonable argument that the sheriff acted contrary to its obligation to make
information available.
Moreover, as the county and the sheriff point out, in the event that Detective Siegrist
made a proper request under the work rules and such request was denied, PERA and the
Michigan Freedom of Information Act (FOIA)18 provide appropriate avenues for resolution of
disputes regarding disclosure of a public sector employer's documents. A public employer's
failure to comply with a union's request for the release of nonprotected information constitutes
an unfair labor practice under PERA, as interpreted and enforced by MERC.19 Further, FOIA
requires the full disclosure of public records, subject only to narrowly construed exemptions.20
Thus, we cannot conclude that the sheriff 's application of rule 106 constitutes an unfair labor
practice because application of the rule does not unreasonably restrict the union's ability to
represent its members and effectively enforce the terms of the labor agreement. That is, while
rule 106 may make union activity slightly less convenient, the rule does not inhibit protected
activity.21 There is no evidence that the employees' organizing efforts would have been stymied
by having to follow the proper procedures for gaining authorization to release the memorandum
to the union.22
The union also contends that, simply because Detective Siegrist was acting as a union
representative, her activities fell under the protection of PERA. According to this Court,
however, "'[m]isconduct in the course of concerted activity . . . is not beyond an employer's right
to discipline.'"23 This Court explained: "'"When a union steward is disciplined for violating job
rules and not because of his position as a union official, the steward cannot look to his union
18
MCL 15.231 et seq.
19
Kent Co Deputy Sheriffs Ass'n v Kent Co Sheriff, 463 Mich 353, 358; 616 NW2d 677 (2000),
citing MCL 423.210(1)(e).
20
Id. at 360; see MCL 15.243. We note that "[t]he fact that another body of law potentially
gives an additional basis for access to such records [e.g., PERA] does not limit the applicability
of the FOIA or the jurisdiction of the circuit court to consider relief under the FOIA." Kent Co
Deputy Sheriffs Ass'n, supra at 362.
21
See Jeannette Corp, supra at 918.
22
See Texas Instruments Inc v Nat'l Labor Relations Bd, 637 F2d 822, 831-832 (CA 1, 1981).
23
AFSCME, Michigan Council, Local 574-A v City of Troy, 185 Mich App 739, 744; 462 NW2d
847 (1990), quoting the decision of the hearing officer.
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status for protection."'"24 Further, in Texas Instruments, supra, the United States Court of
Appeals for the First Circuit stated that employees who act under § 7 of the NLRA are not
always shielded from discipline when they violate an employer's internal rules.25 "For example,
concerted activity that violates state or federal law, that irresponsibly exposes an employer's
property to possible damage or that constitutes insubordination or disloyalty may be found to fall
outside the scope of the NLRA even if undertaken in the interest of self-organization or
collective bargaining."26 The First Circuit stated that "'employees are entitled to use for selforganizational purposes information and knowledge which comes to their attention in the normal
course of work activity and association but are not entitled to their Employer's private or
confidential records.'"27
We acknowledge that this case differs from Texas Instruments in that the memorandum
was sent to all the detectives, including Detective Siegrist, in the normal course of their work
activity. However, this case is not about an employee's right to speak freely with or obtain
advice from a union. It is important to keep in mind that Detective Siegrist was not disciplined
for disclosing information or seeking advice from her union attorney; that is, she was not
disciplined for simply using information and knowledge that came to her attention in the normal
course of work activity. She was disciplined for violating the employment rules by releasing an
internal document to a person outside the sheriff 's department without prior approval.
Further, this case differs from Texas Instruments because the memorandum in this case
was not labeled as confidential nor would the information contained in the memorandum have
led Detective Siegrist to believe that the information was necessarily of a sensitive nature.
However, we hold that any internal documents produced by the sheriff 's department, and
circulated internally only, are deemed confidential by simple virtue of the sheriff 's work rule
prohibiting release of any internal documents without prior authorization. Because Detective
Siegrist was disciplined for violating job rules and not because of her position as a union official,
she cannot rely on her union status for protection.
The union also argues that rule 106 is inapplicable to the circumstances of this case
because Detective Siegrist did not disseminate the memorandum to "the public." That is,
according to the union, its attorney is not a member of "the public" for purposes of applying rule
106 in light of his relationship to the union and to the employer by virtue of the union's
collective bargaining agreement. However, an employer's disclosure obligation is mandatory
unless the information requested is confidential "'or readily accessible to the public and thus to
24
Id. at 745, quoting the decision of the hearing officer quoting Manville Forest Products Corp,
269 NLRB 72; 115 LRRM 1266, 1267 (1984).
25
Texas Instruments, supra at 830.
26
Id.
27
Id., quoting Ridgely Mfg Co v Durban, 207 NLRB 193, 196-197 (1973).
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the union . . . .'"28 The union and its counsel are members of "the public" to the extent that they
are not employees of the sheriff 's department.
Accordingly, we hold that the sheriff was entitled to discipline Detective Siegrist for
failing to obtain prior approval before releasing internal documents to persons outside the
sheriff 's office, even if the alleged rationale for the release was to engage in a union activity.
Detective Siegrist's dissemination of an internal document without permission was a punishable
offense regardless of whether Detective Siegrist was involved in a union activity at the time.
D. Legitimate and Substantial Business Justification
Even assuming that the sheriff 's action adversely affected Detective Siegrist's protected
right to engage in lawful concerted activities under PERA, we conclude that the county and the
sheriff demonstrated a legitimate and substantial business justification for instituting the rule and
applying it in these circumstances.
As in Texas Instruments, this case involves an employer's substantial security interest in
making sure that employees do not disseminate confidential information because of the sensitive
nature of their work. The sheriff 's department is a paramilitary organization. Police
departments, like defense contractors, have a substantial interest in keeping certain sensitive
information confidential, and they are justified in having rules that protect the confidentiality of
documents.
The union argues that the content of the memorandum is not sensitive or confidential,
noting that the sheriff did not label it as a confidential document. The union stresses that the
memorandum clearly and directly addressed a simple and routine working condition. Further,
the union points out that Undersheriff Myers admitted in his hearing testimony that the content
of the memorandum did not contain confidential or restricted information that would
compromise the internal operations of the sheriff 's department.
We acknowledge that the release of a memorandum pertaining to wearing a pager off
duty does not conceivably prejudice the sheriff 's ability to protect the public. However, the
union's arguments miss the point. The memorandum's content is irrelevant. What is relevant is
the sheriff 's interest in ensuring uniformity in disclosure of potentially sensitive internal
documentation. And it is the employer, not the employee, who is in the position to assess the
propriety of releasing internal documentation.
MERC and the union appear to believe that a substantial and legitimate business
justification will exist only when it is established, after the fact, that an employee's disclosure of
internal documents has caused harm. However, the fact that the particular document released in
28
City of Detroit Fire Dep't and Detroit Firefighters Ass'n, Docket No. C87 I-231, 2 MPER
(LRP) P20,012; 1988 MPER (LRP) LEXIS 137 (1988), quoting Michigan State Univ, 1986
MERC Lab Op 407, 409 (1986).
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this case may arguably be devoid of sensitive or confidential information does not alter the fact
that Detective Siegrist violated department rules in releasing the document to an outside party
without any opportunity for the sheriff 's oversight of its dissemination. A law enforcement
agency must be able to control the distribution of its internal documents to maintain its effective
operation. As the county and the sheriff point out, allowing members of a law enforcement
organization to release internal documents without authorization in the hopes that they can later
justify their actions by invoking their rights to engage in union activity would impermissibly
threaten public safety, officer safety, and jail security. Once the information is released, the bell
has been rung and the damage suffered may be grave. Given these risks, we cannot expect the
sheriff to assess its employee's conduct in hindsight. Employees cannot be expected to discern
which types of documents are acceptable for release and which are not—that is the sheriff 's job
to execute with the benefit of foresight on how the release of such information will bear on the
sensitive interworkings of the law enforcement agency.
Again addressing the union's argument that it is not a member of "the public," we find
that the sheriff 's interest in preserving the security of its internal communications prohibits an
employee from releasing internal documents even to a union's attorney where the documents are
protected under the rule of confidentiality. The union is under no legal compulsion to keep
sheriff 's department information out of the public's hands, and the document could later become
public through the litigation of a labor dispute and could compromise the sheriff 's sensitive
procedures or other information appropriately kept confidential.
We last note that we are fully cognizant of the obvious shortcoming of rule 106: that it
does not preclude an employee from verbally communicating, even verbatim, the contents of any
internal document to members of the public. However, we reiterate that it is not our place, in
this case, to question the validity or logic of rule 106; we are merely approving application of the
rule, which we must presume valid, under the present set of circumstances.
The sheriff has a paramount interest in ensuring that its internal documents are not
released without authorization. Thus, even assuming that Detective Siegrist's release of the
memorandum was a protected activity under PERA, the sheriff had a legitimate business interest
justification for restricting unauthorized dissemination of its internal documents. Thus, we
conclude that the county and the sheriff 's interest in keeping all internal documents out of the
public forum absent department authorization for release outweighs Detective Siegrist's right to
engage in protected activity under PERA.
E. Constitutional Issues
The union claims that to force Detective Siegrist to file under FOIA for the release of the
memorandum would deprive her of the fundamental right to due process and would impinge on
her First Amendment right to freedom of speech. However, the union cites no legal authority
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and provides no reasoning to support either of these claims. Thus, the union has effectively
abandoned its due process argument by failing to meaningfully argue its merits.29
III. Conclusion
We recognize that "'[it] is the primary responsibility of the Board and not of the courts
"to strike the proper balance between the asserted business justifications and the invasion of
employee rights in light of the Act and its policy."'"30 However, in reviewing MERC's decision
de novo, we conclude that MERC erred in its legal conclusions that the county and the sheriff
adversely affected Detective Siegrist's right to engage in lawful concerted activity and that the
county and the sheriff failed to establish a legitimate and substantial business justification for
applying the rule to Detective Siegrist's conduct. We conclude that Detective Siegrist's right to
engage in lawful concerted activity was not adversely affected when she knowingly violated a
work rule that the sheriff created and enforced with the legitimate and substantial business
justification of protecting the sensitive interworkings of the law enforcement agency.
Reversed.
Bandstra, J., concurred.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
29
See Badiee v Brighton Area Schools, 265 Mich App 343, 359; 695 NW2d 521 (2005) ("A
party waives an issue when it gives the issue cursory treatment on appeal.").
30
Jeannette Corp, supra at 918, quoting Fleetwood Trailer, supra at 378, quoting Great Dane
Trailers, supra at 33-34.
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