COUNTY OF WAYNE V AFSCME COUNCIL 25
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STATE OF MICHIGAN
COURT OF APPEALS
COUNTY OF WAYNE,
UNPUBLISHED
March 22, 2011
Charging Party-Appellant,
v
AFSCME COUNCIL 25, AFSCME LOCAL 25,
LOCAL 101, LOCAL 49 and LOCAL 1659,
No. 295536
MERC
LC Nos. 07-000050; 07-000051;
07-000052; 07-000053;
07-000054
Respondents-Appellees.
Before: SHAPIRO, P.J., and HOEKSTRA and TALBOT, JJ.
PER CURIAM.
Charging party-appellant, county of Wayne (the county), appeals as of right from the
order of the Michigan Employment Relations Commission (MERC), dismissing its unfair labor
practices (ULP) charges. The charges were brought pursuant to the Public Employment
Relations Act (PERA), against respondents-appellees, AFSCME Council 25 and AFSCME
Locals 25, 101, 409, and 1659 (collectively, “respondents”). On appeal, the county argues that
the MERC’s decision must be reversed because it is based on improperly assumed facts and
contains a substantial and material error of law, and that a remand is required because the county
was denied the opportunity to present an oral argument on issues of law and policy. We affirm.
This appeal arises from the MERC’s dismissal, upon the recommendation of an
administrative law judge (ALJ), of ULP charges the county filed against respondents. The
charges alleged that respondents were engaging in unfair labor practices in their conduct in
connection with a breach of contract action filed in April 2007 in the Wayne Circuit Court (the
circuit court action). The complaint in the circuit court action, which was initially brought by
respondents and three individual plaintiffs and contemplated as a class action, alleged that the
defendants, the county and the Wayne County Retirement Board, had violated the county’s
collective bargaining agreement with respondents and the vested rights of the individual
plaintiffs, who are retired former county employees, by changing the premium structure for
supplemental life insurance (SLI) benefits. The circuit court eventually removed respondents
from the caption, thus dismissing them as parties, and limited the class of plaintiffs to “those
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retired members of AFSCME Council 25, and its Locals 25, 101, 409 and 1659 who have
purchased SLI.” The three individual, named plaintiffs served as class representatives.1
In the instant MERC proceedings, the county alleged that respondents’ conduct in filing
and pursuing the circuit court action amounted to an unfair labor practice under the PERA:
The Union/Labor Organization, in concert [with] affiliate locals and
private individuals, filed a class action lawsuit in the Wayne County Circuit Court
. . . in which the Union/Labor Organization: (1) unlawfully purports to represent
persons outside the defined bargaining unit; (2) is unlawfully coercing the
Employer to deal with the Union/Labor Organization and affiliate locals acting on
behalf of such persons, including retirees/former employees who when employed
were exempt from union membership or members of other unlawfully recognized
bargaining units; and (3) is coercing the Employer, without negotiation or
agreement, to involuntarily subsidize supplemental life insurance for retirees. The
lawsuit was filed on April 2007, and is ongoing.
Without scheduling arguments or a hearing, the ALJ issued a show cause order, directing
the county to show cause why the charges should not be dismissed for failure to state a claim
upon which relief could be granted. The county responded and the ALJ issued his decision and
recommendation in December 2008. He concluded that the county’s charges failed to state a
claim under the PERA and recommended dismissal. In its November 2009 decision, the MERC
agreed with the ALJ and dismissed the county’s ULP charges.
On appeal, the county argues that the MERC improperly relied on four “factual premises”
in determining that the county’s ULP charges failed to state a claim upon which relief could be
granted and that the MERC erred in concluding that the ULP charges amounted to an improper
collateral attack on the circuit court action.
The four “factual premises” challenged by the county are:
1. While AFSCME was a named party in the Class action, it was not the
class representative.
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The circuit court ultimately ruled in favor of the plaintiffs, ordering the defendants to make SLI
available for purchase by the plaintiffs under the former, flat-rate premium structure, but this
Court reversed and remanded for entry of an order permitting the defendants to change to an agerated SLI premium structure. The panel concluded that “there was no express contractual right
or past practice that amended the collective bargaining agreement to provide a right to a flat-rate
premium structure in perpetuity and, therefore, nothing that could have vested.” Because there
was no vested right, the defendants could modify the rate structure without the plaintiffs’
consent. Butler v Wayne County, ____ Mich App ____; ____ NW2d ____ (2010), slip op, p 12.
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2. AFSCME has an interest in the outcome of the litigation over the
amount of insurance premium paid by retirees since AFSCME bargained for and
entered the contract providing for insurance.
3. In actions to enforce the collective bargaining agreement, AFSCME
may certainly represent those retirees who gave their consent.
4. Retirees may, with or without union assistance, take action on their
own to pursue the enforcement of their contractual rights under the collective
bargaining agreement.
However, we need not address the county’s challenge to these “findings” because the county’s
objections to each of the four “factual premises” are moot.
Appellate courts will sua sponte refuse to decide moot cases. In re MCI Telecom
Complaint, 460 Mich 396, 434 n 13; 596 NW2d 164 (1999), citing Ideal Furnace Co v Int’l
Molders’ Union of North America, 204 Mich 311; 169 NW 946 (1918). Mootness is a
preliminary issue that a court addresses before it reaches the merits of the case. Id. A case is
moot when it involves “nothing but abstract questions of law, which do not rest upon existing
facts or rights.” Gildemeister v Lindsay, 212 Mich 299, 302; 180 NW 633 (1920). In addition,
“[a]n issue is moot if an event has occurred which renders it impossible for the court to grant
relief,” or “when a judgment, if entered, cannot have, for any reason, any practical legal effect on
the existing controversy.” Gen Motors Corp v Dep’t of Treasury, ___ Mich App ___; ___
NW2d ____ (2010), slip op, p 15, 16.
The county’s arguments pertain to the propriety of respondents’ alleged representation, in
the circuit court action, of a class that included retirees who had never been covered under the
AFSCME collective bargaining agreement and who did not consent to representation by
respondents. These arguments are moot in light of the circuit court’s orders of April 10, 2008,
and May 16, 2008, which removed respondents as parties to the circuit court action, limited the
class to “those retired members of AFSCME Council 25, and its Locals 25, 101, 409 and 1659
who have purchased SLI,” and amended an existing preliminary injunction to apply only to that
class. There is no question that, since at least April 10, 2008, respondents were not the class
representatives. The county essentially acknowledges that this whole line of argument is moot
when it points out, in its brief on appeal, that “during the course of the litigation the County
actually proved its position on this point and secured court orders narrowing the class and
modifying the preliminary injunction to only include AFSCME members.” Accordingly, the
arguments on appeal do not rest upon existing facts and it is unclear what practical legal effect a
decision by this Court to remand to the MERC could have.
The county also argues on appeal that the MERC erred in concluding that the county’s
ULP charges were an improper collateral attack on the circuit court action. Citing BE & K Const
Co v NLRB, 536 US 516; 122 S Ct 2390; 153 L Ed 2d 499 (2002), and Bill Johnson’s
Restaurants, Inc v NLRB, 461 US 731; 103 S Ct 2161; 76 L Ed 2d 277 (1983), the county argues
that “it has been recognized that[,] in an exceptional case, a party’s conduct in bringing litigation
may give rise to an actionable ULP charge.” In Bill Johnson’s, 461 US at 748-749, the Court
held that the National Labor Relations Board (NLRB) “may not halt the prosecution of a state-3-
court lawsuit, regardless of the plaintiff’s motive, unless the suit lacks a reasonable basis in fact
or law. Retaliatory motive and lack of reasonable basis are both essential prerequisites to the
issuance of a cease-and-desist order against a state suit.” In BE & K, 536 US at 529-530, 536537, the Court held that the NLRB may not declare that an unsuccessful but reasonably based
lawsuit filed with a retaliatory purpose violates the National Labor Relations Act. Id. at, 563537. The Court declined to “decide what our dicta in Bill Johnson’s may have meant by
‘retaliation.’” Id. at 537.
In this case, the county fails to allege that the plaintiff’s lawsuit lacked a reasonable basis.
In its reply brief, the county impliedly argues that it need not allege that the circuit court action
lacked a reasonable basis because respondents were using the lawsuit to repudiate a contract by
seeking to “confer AFSCME contract benefits on persons never covered an AFSCME contract.”
This repudiation argument is another permutation of the county’s argument concerning
respondents’ purported representation of non-union, individual plaintiffs in the class action, and
does not establish that the filing and pursuit of the circuit court action was, in itself, an unfair
labor practice. In any event, this argument is also moot because it is unclear what relief we could
grant the county at this stage. Throughout the MERC proceedings, the only relief the county
sought was an order directing respondents to cease and desist from the alleged unfair labor
practices—that is, from their conduct of the circuit court proceedings. Respondents have already
“ceased and desisted” from the conduct complained of because they are no longer part of the
circuit court action. Consequently, a remand to the MERC for further proceedings would be
futile.
The county, relying on Smith v Lansing School Dist, 428 Mich 248; 406 NW2d 825
(1987), contends that a remand to the MERC is required because the county was not afforded the
opportunity to present an oral argument in opposing summary disposition. In Smith, the Court
held that “the MERC has the procedural authority to dismiss an unfair labor practice charge for
failure to state a claim, consistent with the PERA, the MAPA, and its own administrative rules.”
Id. at 250. It further held that, although the parties to a MERC proceeding must only be given
the opportunity to present evidence on issues of fact when issues of fact exist, they must be
afforded an opportunity to present oral arguments on issues of law and policy. Id. at 251, 257259.
We conclude that this argument is not preserved for appeal because, although the county
requested an evidentiary hearing, it failed to request an oral argument before an ALJ or the
MERC. See Goolsby v City of Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984) (“[T]hat
issue has not been preserved for appeal because plaintiffs did not raise it before the MERC . . .
.”). Although an appellate court may disregard preservation rules, Polkton Charter Twp v
Pellegrom, 265 Mich App 88, 95-96; 693 NW2d 170 (2005), we decline to do so here in light of
the mootness of the county’s ULP charges.
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Finally, although respondents’ brief on appeal requests damages for having to defend a
vexatious appeal, they did not file the required motion under MCR 7.211(C)(8). We have
nevertheless considered the issue and have concluded that the appeal was not vexatious and
therefore decline to award sanctions under MCR 7.216(C).
Affirmed.
/s/ Douglas B. Shapiro
/s/ Joel P. Hoekstra
/s/ Michael J. Talbot
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