Demings v. City of Ecorse

377 N.W.2d 275, 423 Mich. 49

• Court: Michigan Supreme Court
• Decided: November 7, 1985
• Docket: 72407, (Calendar No. 6)
• Status: Published

Opinions

Levin, J.

The issue is whether the Michigan Employment Relations Commission has exclusive jurisdiction of fair representation actions brought under the public employment relations act. We hold that the circuit court has concurrent jurisdiction with the merc.

The pera was modeled on the National Labor Relations Act. Under the nlra, courts have concurrent jurisdiction with the National Labor Relations Board of fair representation actions. There are a number of reasons for concurrent jurisdiction. The right of fair representation was developed judicially by the United States Supreme Court. The right concerns substantive matters not within the expertise of the nlrb or the merc and individual rights that might be better protected by the courts. The right is intertwined in the judicial enforcement of collective bargaining agreements.

We are not persuaded that an adequate reason for departing from the federal model in fair representation cases has been advanced. We hold that the circuit court has concurrent jurisdiction with the merc and, thus, that the merc does not have exclusive jurisdiction, and affirm the judgment of the Court of Appeals.

The Court of Appeals affirmed the decision of the circuit court vacating the arbitration award, that the plaintiff, Alvin Demings, challenged in this action. That arbitration award may not properly be vacated unless the defendant Police Officers Association of Michigan breached its duty of fair representation. Because the fair representation issue has not been tried, and the Court of Appeals addressed the questions presented on appeal in the context only of its review of the injunctive relief granted Demings and the denial of the poam’s motion for summary judgment, we remand the cause to the circuit court to determine whether the poam’s conduct violated the standards applicable in fair representation cases. See Goolsby v Detroit, 419 Mich 651, 682; 358 NW2d 856 (1984).

I

The Ecorse Police and Fire Commission promoted Demings to the position of detective on May 5, 1980. At the time, Demings was the patrolman with the highest seniority. Corporal Frank Chirillo, however, had more departmental seniority, and he filed a grievance, claiming that the promotion of Demings violated the terms of the collective bargaining agreement between Ecorse and the poam. The poam was the exclusive bargaining agent for both Demings and Chirillo.

The poam pursued Chirillo’s grievance to arbitration, contending that Demings’ promotion violated the collective bargaining agreement because of Ecorse’s failure to post and fill the job opening as required in the agreement. In February, 1981, Chirillo’s grievance was submitted to arbitration. Demings attempted to appear at the hearing with his attorney, but the poam succeeded in having him excluded. Demings was allowed to submit his arguments in writing. In March, 1981, the arbitrator ruled in Chirillo’s favor. The award stated that "[t]he employer shall reconsider the promotion of Officer Demings by offering the Detective position filled by Demings to the most senior qualified member of the bargaining unit, if other than Demings.” In June, 1981, Ecorse rescinded plaintiff’s promotion and resolved to keep the detective position vacant.

Following his demotion, Demings requested that the poam employ the grievance arbitration procedure in his behalf, but the poam refused. The contract allows only the poam to invoke the grievance arbitration procedure. Demings filed an action in circuit court, alleging that the poam had breached its duty of fair representation by having him excluded from the Chirillo arbitration, by refusing to file his grievance, and by challenging his promotion, but not others in the same position. An injunction "to preserve the status quo by restraining [Ecorse] from demoting” him was sought. Demings also claimed that Ecorse violated the collective bargaining agreement by demoting him and that Ecorse and the poam discriminated against him on the basis of race. The breach of contract and racial discrimination claims are not involved in this appeal. The poam filed an answer to the motion for injunction and moved for "accelerated and/or summary judgment” claiming that the circuit court lacked jurisdiction.

The circuit court denied the poam’s motion for accelerated and summary judgment, issued a temporary injunction, subsequently entered as a final order, and set aside the arbitration award, finding that the exclusion of Demings was arbitrary and capricious and, therefore, a violation of due process. The order restored Demings to the position of detective, retroactive to the date of his demotion.

The Court of Appeals concluded that the merc did not have exclusive jurisdiction and affirmed.

II

Goolsby v Detroit, 419 Mich 660-661, n 5, summarizes the relationship between the nlra and the pera in general, and provisions of the two acts governing the right of fair representation in particular:

The rights and responsibilities imposed on labor organizations representing private sector employees by statutes like the National Labor Relations Act, 29 USC 151 et seq., and the Railway Labor Act, 45 USC 151 et seq., and by the national labor policies which those statutes implement impliedly impose on labor organizations representing private sector employees a duty of fair representation.

Similarly, our labor mediation act, MCL 423.1 et seq., MSA 17.454(1) et seq., and public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., are patterned after the nlra. Thus, this Court has stated that in construing our state labor statutes we look for guidance to "the construction placed on the analogous provisions of the nlra by the [National Labor Relations Board] and the Federal courts.” Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 636; 227 NW2d 736 (1975).

. . . Consequently, since the rights and responsibilities imposed on labor organizations representing public sector employees by pera . . . are similar to those imposed on labor organizations representing private sector employees by the nlra, it must be concluded that pera impliedly imposes on labor organizations representing public sector employees a duty of fair representation which is similar to the duty imposed by the nlra ....

It is not suggested that the Legislature has, in defining the origin and nature of the substantive right of fair representation, departed from the federal model. The pera provisions that give rise to the right of fair representation are replicas of the federal provisions. The nature of the right of fair representation, as developed by the Michigan and federal courts, also appears to be substantially the same. It does not appear that the Legislature intended to depart from the federal approach in respect to, and only in respect to, the jurisdiction of the courts in fair representation actions brought by public employees.

Ill

The general rule is that the nlrb has exclusive jurisdiction of unfair labor practice charges.¹ The federal courts and the states must defer to the administrative agency. This "preemption doctrine was created to permit administrative agencies to develop rules within their area of expertise which would be enforced uniformly.”²

Nevertheless, exceptions to the rule of exclusive agency jurisdiction of unfair labor practices have developed. In Vaca v Sipes, 386 US 171, 188; 87 S Ct 903; 17 L Ed 2d 842 (1967), the United States Supreme Court held that "the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the . . . pre-emption doctrine inapplicable.” The courts, both state and federal, have concurrent jurisdiction of fair representation actions.

A

The plaintiff in Vaca, Benjamin Owens, had been refused reemployment after a long sick leave. When the union decided not to take Owen’s grievance to arbitration, he filed an action in a Missouri court, alleging that he had been discharged from his employment in violation of the collective bargaining agreement and that the union had breached its duty of fair representation. Included in the union’s answer was the defense that the Missouri courts lacked jurisdiction because Owens was essentially claiming that the union had engaged in unfair labor practices within the exclusive jurisdiction of the nlrb.

The United States Supreme Court elaborated at least four reasons for rejecting exclusive agency jurisdiction and distinguishing the right of fair representation from other unfair labor practices. First, "[t]he doctrine was judicially developed” and "the board adopted and applied the doctrine as it had been developed by the federal courts.”³ Second, fair representation actions involve review of substantive areas not within the field of expertise of the board.⁴ Third, the courts are the best protectors of individual rights including enforcement of the right to fair representation.⁵ Finally, the right of fair representation figures prominently in breach of contract actions under § 301, and it would be incongruous for "a court that has litigated the fault of the employer and union to fashion a remedy only with respect to the employer.”⁶

The Court’s reliance on the judicial origin of the right of fair representation should not be misunderstood. The Court was not saying that the right is purely a common-law right. The right is "the product of a federal common law of statutory origin.”⁷ How this hybrid is classified is not of critical importance. It does not appear that the Court was concerned with whether the right of fair representation is a pure common-law right or a common-law right statutorily derived. What was important is that the right was originally devised and enforced by courts.⁸ The nlrb had no involvement in the creation or early enforcement of the right of fair representation; the board merely "adopted and applied” the judicial doctrine.

The early history of the enforcement of the right of fair representation in Michigan is similar. Albeit in cases arising under the nlra, the right of fair representation was recognized in this state before 1973, when unfair labor practices by unions were brought under the jurisdiction of the merc.⁹ As a result, trial and appellate courts of this state had experience adjudicating fair representation claims before the merc obtained any jurisdiction.

The Court, adverting to the judicial origin of the right of fair representation, concluded that when the nlrb is enforcing a judicially developed doctrine, "it is safe to presume that judicial supervision will not disserve the interests promoted by the federal labor statutes.”¹⁰ A primary justification for preemption is undoubtedly to avoid conflicting rules of law. The Court noted in Vaca that this concern is not "applicable” to fair representation actions.¹¹ The reason is that a court, not an agency, defined the extent of the obligation, and the agency had not altered the original formulation.¹²

The agency’s lack of expertise concerning the matters at issue in a fair representation action is the second reason the Court gave for allowing the courts concurrent jurisdiction. Agency expertise has been a primary justification for exclusive jurisdiction of other unfair labor practices. Fair representation actions, however, involve review of the union’s administration of the grievance machinery. "[A]s these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.”¹³

The Court’s analysis of the absence of administrative expertise in fair representation actions is as applicable to the merc as it is to the nlrb. Where deference is accorded the merc, it is based on the expertise the agency has developed in the area.¹⁴ But like the nlrb, the merc has no more expertise than the courts in fair representation cases. As the Court of Appeals noted, these "rights are usually enforced by courts, not by administrative agencies. There is no reason to believe that merc’s expertise in handling fair representation claims exceeds that of the courts.”¹⁵

The Court’s third reason for rejecting exclusive jurisdiction also relates to the institutional capacities of the two forums. The Court suggested in Vaca that courts are better able to protect the rights of individual employees than agencies: "The collective bargaining system as encouraged by Congress and administered by the nlrb of necessity subordinates the interests of an individual employee to the collective interests of all employees in the bargaining unit.”¹⁶ In terms of protecting individual employee rights, "the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.”¹⁷ The Court concluded that it is not enough to have this right enforced by the board. "Were we to hold, as petitioners and the Government urge, that the courts are foreclosed . . . from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.”¹⁸

While this passage can be interpreted more narrowly, we believe its full import was elucidated by this Court in Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 249, n 7; 253 NW2d 633 (1977). After quoting the relevant section in Vaca, this Court noted: "In other words, the structure of the nlra quite properly emphasizes the protection of the collective interest of workers. The courts must remain a forum where the employee can present, complaints of abuse of his individual rights by the union.” The Court in Vaca recognized the institutional differences between courts and an administrative agency and concluded that courts were more concerned with individual rights. This factor figured prominently in the Vaca decision that there was concurrent jurisdiction, and should be accorded similar consideration in our decision. The institutional argument is as applicable to the merc as it is to the nlrb. Once again, we agree with the observation of the Court of Appeals: "merc’s resources may be allocated in such a way that fair representation claims are not accorded the same attention or priority that claims affecting a bargaining unit at large are.”¹⁹

The United States Supreme Court also considered the congruity of allowing an employee to maintain a complaint against the employer in the courts and against the union before only the board where the factual predicate is essentially the same, and concluded:

JXJt is obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. . . . What possible sense could there be in a rule which would permit a court that has litigated the fault of the employer and union to fashion a remedy only with respect to the employer? Under such a rule, either the employer would be compelled by the court to pay for the union’s wrong — slight deterrence, indeed, to future union misconduct — or the injured employee would be forced to go to two tribunals to repair a single injury.[²⁰]

This scenario describes exactly what happened in the instant case. Demings combined a breach of contract action against the employer with a breach of the duty of fair representation action against the union. This combination is quite common and is another reason for allowing the courts concurrent jurisdiction both in private and public sector breach of fair representation claims.

B

The foregoing examination of the Vaca opinion reasoning, and our conclusion that the reasoning of that opinion is equally valid in the context of the pera (which was modeled on the nlra), leads us to conclude that the courts have concurrent jurisdiction. This is consistent with this Court’s opinion in Goolsby. In the course of that decision defining the substance of the right of fair representation, this Court made the following observations concerning jurisdiction:

In this state, a person claiming that a labor organization has breached its duty of fair representation can institute an administrative or a judicial proceeding, the former by filing an unfair labor practice charge with the nlrb or the merc, the latter by filing a complaint with a federal district or state circuit court.[²¹]

IV

The dissenting justices rely on "significant” differences between the private sector and public sector employee labor law under the pera to justify the conclusion that the merc has exclusive jurisdiction of unfair representation claims.

The dissenting justices maintain that the Congress did not express an intent that the nlrb’s exclusive jurisdiction extend to unfair representation claims because when Congress, in 1947, gave the nlrb exclusive jurisdiction of unfair labor practices by unions, unfair representation had not yet been recognized by the nlrb as an unfair labor practice. In contrast, legislative intent to extend to the merc exclusive jurisdiction of union unfair representation actions can be inferred because the Legislature made unlawful unfair union labor practices in 1973, eleven years after the nlrb recognized unfair representation as an unfair labor practice.

The Court in Vaca did indeed note that when the nlrb was given exclusive jurisdiction of unfair labor practices, the nlrb had not yet considered breach of the duty of fair representation to be an unfair labor practice.²² The Court, however, used the timing of the various provisions to show that a mechanistic reading of the statutory language must be avoided. Because, in 1947, the breach of the duty of fair representation had not been recognized as an unfair labor practice, and could not be so recognized on the basis of the language enacted,one could not sensibly infer that the Congress had intended that the nlrb have exclusive jurisdiction of right of fair representation cases. The Court did not advance the timing argument as proof of legislative intent, but rather to show that a mechanistic reading of the statute would not resolve the question whether the Congress intended the right of fair representation to be within the exclusive jurisdiction of the nlrb. To answer that question, the Court looked to the reasons for exclusive jurisdiction of other unfair labor practices and concluded these reasons did not apply to the right of fair representation. The timing argument is the beginning, not the end, of the Court’s analysis.

The dissenting justices argue that because breach of the duty of fair representation was recognized by the United States Supreme Court as an unfair labor practice before, not after, the nlrb was given jurisdiction of unfair labor practices, it is proper to infer that the Legislature in enacting the pera did intend to treat all unfair practices alike. This, we believe, misconstrues Vaca. The Court was not there suggesting that but for the timing problem the Congress should be presumed to have intended to have included the right of fair representation in the grant to the nlrb of exclusive jurisdiction of unfair labor practices. To resolve the question of legislative intent, the Court examined the underlying reasons for exclusive jurisdiction.

The timing argument, in the dissenting opinion, is flawed for other reasons including the omission of an important date. Between the time breach of the duty of fair representation was found by the United States Supreme Court to be an unfair labor practice and the time when the merc was given jurisdiction of unfair labor practices by unions, the United States Supreme Court decided in Vaca that the fair representation claims were an exception to the general rule that the nlrb has exclusive jurisdiction. In drafting the pera, the Legislature, as this Court has often noted, indicated an intent to follow the federal model.²³ The provisions of the act were replicas of the nlra, and it is fair to conclude that the Legislature intended them to be interpreted similarly.²⁴

The dissenting justices also deem it to be a "significant” reason for departing from the federal framework that "the Vaca Court noted that the nlrb’s general counsel has unreviewable discretion in choosing to institute an unfair labor complaint and [that] there is no assurance that aggrieved employees would obtain review for their complaints,” while the pera provides for review of a merc decision "under the competent, material and substantial evidence standard.”

The Court in Vaca did say that if courts were foreclosed from review of right of fair representa tion actions, "the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review . . . since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.”²⁵ This statement was part of a larger argument in which the Court suggested that courts can be more safely trusted with protecting individual rights than a labor board, because the "principal concern” of the nlrb is the "public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee . . . .”²⁶

The argument in the dissenting opinion shows only that according exclusive jurisdiction to the merc would not be as inappropriate as according the nlrb exclusive jurisdiction, but it does not address the arguments set forth in the Court’s Vaca opinion that the courts are the better and more appropriate forum for adjudicating fair representation claims.

C

The dissenting opinion states, "We have repeatedly interpreted this section [§ 16 which states that violations of § 10 shall be deemed to be unfair labor practices remediable by the commission] as vesting the merc with exclusive jurisdiction.” The cases cited do indeed state that "[t]he Michigan Employment Relations Commission has exclusive jurisdiction of unfair labor practices.”²⁷ None of the cases cited, however, concern fair representation claims. The right of fair representation is not discussed even in dicta. Undoubtedly, the merc has exclusive jurisdiction of unfair labor practice claims in general. Fair representation claims are, however, a well-recognized exception.

V

A disturbing consequence of departing from the federal model, would be that the only unionized workers limited to an agency remedy and denied the opportunity to maintain an action in court would be those in the public sector. Employees employed in the private sector under the nlra can file a petition with the nlrb or an action in a United States district court or a state trial court. Employees in the private sector not covered by the nlra may file an unfair representation claim in the circuit court. Only public employees would be limited to a merc proceeding.

There is no reason to suppose that the unions that represent public employees are different from those representing private sector employees in terms of the need or desirability of providing a judicial remedy as an alternative to a petition with the merc asserting an unfair labor practice. There is no reason to suppose that the merc more so than the nlrb can be entrusted with exclusive responsibility of protecting the individual rights of union members.

The Legislature did not intend that public employees be treated differently under the pera, a statute modeled on the nlra, from private employees in fair representation cases. The pera requires, rather, that they be treated the same.

In sum, we hold that the merc does not have exclusive jurisdiction of fair representation claims arising under the pera. The pera is based on a federal model that allows concurrent jurisdiction of fair representation actions. There is no indication that the Legislature intended to depart from the federal model.

The judgment of the Court of Appeals is, therefore, affirmed on this issue.

VI

The final issue is the validity of the circuit court’s decision to vacate the arbitration award on the ground that it was arbitrary and capricious to exclude Demings from the proceeding that would eventually result in the rescission of his promotion. If the poam violated the right of fair representation, the circuit court might vacate the arbitration award.²⁸ If the poam did not violate Demings’ right of fair representation, the arbitration award must stand. The fair representation issue has not, however, been tried.

At a hearing on Demings’ request for a preliminary injunction, the circuit court said, "[Wjhen you bar a man [from a proceeding] in which his job and his livelihood is [sic] involved, and he is demoted as a result of a decision, you will never convince me he hasn’t been deprived of his fundamental due process of law.” A temporary injunction was then issued and the arbitration set aside "for the reason that the same is arbitrary and capricious in that the plaintiff, Alvin Demings, and his attorney were excluded from the hearing . . . in violation of plaintiffs fundamental rights to due process and legal counsel.” The circuit court entered the provisions of the preliminary injunction as a final order. At the same time, it denied the poam’s motions for accelerated and summary judgment.

The Court of Appeals, examining the right of fair representation issue only in the context of the injunctive relief granted Demings and the accelerated and summary judgment motions, affirmed and said: "[Taking] [e]very well-pleaded allegation ... as true . . ., factual development can possibly justify a right to recovery” on an unfair representation claim. The "factual development” referred to by the Court of Appeals has not, however, taken place._

In this Court, Demings seeks to have us adopt, as a matter of law, a rule that exclusion from an arbitration hearing constitutes a violation of the right of fair representation, "[wjhen an exclusive representative takes a position at arbitration in direct conflict with the critical interests of a lone employee . . . .”²⁹ We decline to adopt a per se rule.

As noted earlier, the Legislature adopted the federal model in right of fair representation actions. See Goolsby v Detroit, 419 Mich 660-661, n 5. The United States Supreme Court has concluded that per se rules have no place in this peculiarly fact-bound inquiry. In Vaca the Court rejected a per se rule that would grant an employee an absolute right to have his grievance taken to arbitration, because, for the grievance machinery to work properly, the union must be given considerable discretion to determine which grievances to press and which to abandon. Vaca v Sipes, 386 US 190-191.³⁰ In an earlier case, the Court also said that there was no per se rule against a union taking a position in direct conflict with the interests of one of the employees it represents:

[W]e are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another. [Humphrey v Moore, 375 US 335, 349; 84 S Ct 363; 11 L Ed 2d 370 (1964).]

The cause is remanded to the circuit court to determine whether the poam’s conduct violated the standards in fair representation actions. See Goolsby v Detroit, 419 Mich 682.

VII

We affirm the Court of Appeals decision that the circuit court has concurrent jurisdiction with the merc. We remand the cause to the circuit court to determine whether there has been a violation of Demings’ right of fair representation.³¹

Williams, C.J., and Ryan and Brickley, JJ., concurred with Levin, J.

1 San Diego Bldg Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959); Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 241; 253 NW2d 633 (1977).

2 Morris, The Developing Labor Law, p 1316.

3 Id. at 181.

4 Id.

5 Id. at 182.

6 Id. at 187.

7 Morris, n 2 supra at 1285.

8 Vaca, 386 US 181; Bebensee, 400 Mich 249 ("fair representation doctrine was judicially developed”); Gorman, Labor Law, p 704.

9 See Cortez v Ford Motor Co, 349 Mich 108, 123; 84 NW2d 523 (1957), stating "that individual members of the union may under certain circumstances enforce fair and proper representation of their interests on the part of their union representatives by legal action.” See also Field v Local 652 UAW AFL-CIO, 6 Mich App 140, 147; 148 NW2d 552 (1967), where an employee alleged that he had not been fairly represented by the union, and the Court of Appeals held, "State courts have jurisdiction over the subject matter of this suit. . . .”

10 Motor Coach Employees v Lockridge, 403 US 274, 297-298; 91 S Ct 1909; 29 L Ed 2d 473 (1971). Bebensee, 400 Mich 249.

11 Vaca, 386 US 181.

12 See Bebensee, 400 Mich 249, stating that "[t]he fact that both a court and the nlrb would look to the same body of Federal law would significantly reduce the potential for conflict.”

13 Vaca, 386 US 181. The duty or right of fair representation was first recognized in Steele v Louisville & N R Co, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944). See also Harrison v Arrow Metal Products Corp, 20 Mich App 590, 626; 174 NW2d 875 (1969); Gorman, supra at 699, 704.

14 See Rockwell v Crestwood School Dist, 393 Mich 616, 630; 227 NW2d 736 (1975).

15 Demings v City of Ecorse, 127 Mich App 608, 622; 339 NW2d 498 (1983).

16 Vaca, 386 US 182.

¹⁷

¹⁸

19 Demings, 127 Mich App 622.

20 Vaca, 386 US 187.

21 Goolsby, 419 Mich 665, n 6.

22 Vaca, 386 US 177.

23 Rockwell v Crestwood School Dist Bd of Ed, n 14 supra, 636, where the Court said that it will look for guidance to "the construction placed on the analogous provisions of the nlra by the nlrb and the Federal courts.”

²⁴

²⁵

26 Id. at 182, n 8.

27 Detroit Bd of Ed v Parks, 417 Mich 268, 283; 335 NW2d 641 (1983).

28 See Saginaro v Attorney General, 87 NJ 480, 488-489; 435 A2d 1134 (1981).

29 In this Court, Demings, although adverting in his statement of the issue to an alleged due process right, does not present a traditional due process analysis, i.e., whether there is state action, whether he has a property right warranting constitutional protection, and whether available procedures are adequate. He relies rather on cases where unions were found to have violated their duty of fair representation.

30 See Saginaro v Attorney General, n 28 supra at 488 ("Nowhere does Vaca suggest that the employee be allowed to intervene in the arbitration procedure.”).

31 The question whether there should be any modification of the orders that have been entered by the circuit court will depend on the outcome of the trial on the fair representation issue. Demings’ present status is unclear; the question whether the orders previously entered should be continued or modified during the further pendency of their proceedings is for the circuit court to decide. We intimate no opinion thereon.