WASHTENAW COUNTY V MICHAEL SCHILS
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STATE OF MICHIGAN
COURT OF APPEALS
AFSCME COUNCIL 25 AND LOCAL 2733,
UNPUBLISHED
February 28, 2008
Respondent-Appellee,
v
No. 273103
MERC
LC No. 04-000042
MICHAEL SCHILS,
Charging Party-Appellant.
WASHTENAW COUNTY,
Respondent-Appellee,
v
No. 273128
MERC
LC No. 04-000213
MICHAEL SCHILS,
Charging Party-Appellant.
Before: Wilder, P.J., and Saad, C.J., and Smolenski, J.
PER CURIAM.
Charging party appeals as of right the order of the Michigan Employment Relations
Commission (MERC) dismissing his charges of unfair labor practices in violation of the Public
Employment Relations Act, MCL 423.201 et seq. (PERA), as untimely, and for failure to state a
claim upon which relief can be granted. We affirm.
Charging party asserts two arguments on appeal. First, he contends that MERC
dismissed his charges as untimely in error, because the relation back doctrine of FRCP 15(c)
permitted him to raise them. Charging party claims that at a hearing on previous cases he filed,
Case Nos. C03 C-061 and CU03 C-017, the arbitrator accepted the March 7, 2003, filing date (as
opposed to the March 18, 2003 date resulting from errors in charging party’s first filing of the
charges) as timely. According to charging party, however, this ruling was ignored in later
proceedings, by both the arbitrator and MERC, resulting in what charging party considers a
manifest injustice. According to charging party, the failure of MERC and respondents to address
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both this evidence, and his so-called (and unexplained) “bound by contract” argument, is
indicative of their bad faith.
Charging party argues that because the charges in Case No. CU03 C-017 were allegedly
timely filed, the relation back doctrine of Federal Rule of Civil Procedure (FRCP) 15(c) allows
him to present the same allegations he raised in that case in the cases now on appeal, Case Nos.
C04 H-213 and C04 J-051. According to charging party, despite the fact that the cases on appeal
were not filed within the six-month statute of limitations period of the alleged PERA violations,
Case Nos. C04 H-213 and C04 J-051 are considered timely, based on FRCP 15(c), since the
current charges are “related” to the earlier case. Section 16 of PERA provides, in pertinent part,
that
[n]o 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,
unless the person aggrieved thereby was prevented from filing the charge by
reason of service in the armed forces, in which event the 6-month period shall be
computed from the day of his discharge. [MCL 423.216(a).]
Charging party’s argument is without merit, for several reasons.
First, the arbitrator did not find that the charges in Case No. CU03 C-017 were timely
filed. In his opinion, the administrative law judge stated: “I agree with Respondents’ assertions
that the charges were not filed within six months of the alleged violation as required by Section
16(a).” The opinion further states that although the charges “refer[] to a date, September 30,
2002, that is within six months of March 8, 2003, when Charging party claims that AFSCME
received the charge, it also contains earlier dates that demonstrate that he knew of the alleged
violations prior to September 30, 2002. . . . Clearly, the charge was filed more than six months
after Charging party first brought these matters to AFSCME’s attention.” Thus, while the
arbitrator may have accepted charging party’s earlier filing date, he did not find that the charges
filed on this date were timely.Second, in a proceeding in a Michigan court concerning state-law
claims, relation back of amendments is governed by the Michigan Court Rules, not by the
Federal Rules of Civil Procedure. MCR 2.001; see Erie R Co v Tompkins, 304 US 64, 78; 58 S
Ct 817; 82 L Ed 1188 (1938) (state and federal courts may utilize their own procedural rules).
MCR 2.118(D) corresponds most closely to FRCP 15(c), and provides that “[a]n amendment that
adds a claim or a defense relates back to the date of the original pleading if the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or
attempted to be set forth, in the original pleading.” Charging party argues that because the
charges in Case No. CU03 C-017 were timely, and his current charges relate to the earlier
charges, his current charges should also be considered timely. As previously noted, the charges
in Case No. CU03 C-017 were not found to be timely by the ALJ. In addition, charging party
misinterprets the court rule. The rule allows amendments that add a claim or defense to a
pleading to be considered timely if the amendments meet the conditions set forth in the rule.
Charging party seeks to have a new case considered timely because it addresses the same issues
that his earlier case addressed, a purpose outside the scope of the court rule. MCR 2.118(D).
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Next, charging party argues that MERC erred by ruling that respondents were not
required to give him certain information under PERA, which was contrary to public policy.
MERC’s written decision mentions PERA only in passing, stating that charging party failed to
state a claim upon which relief can be granted under the statute. MERC further stated that
charging party failed to point to any case law or provision of PERA that would require either
respondent to provide him with the (unspecified) information he requested.
According to charging party, MERC has “provid[ed] a means for employers and unions
to engage in conspiratorial acts against public employees, in violation of PERA.” Charging party
neither specifies which provision of PERA he relies upon, nor adequately describes what
conspiratorial acts respondents allegedly committed. Therefore, this issue is not preserved. “It is
not enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position. The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow.” Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998),
quoting Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Affirmed.
/s/ Kurtis T. Wilder
/s/ Henry William Saad
/s/ Michael R. Smolenski
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