Michigan Employment Relations Commission v. Reeths-Puffer School District

215 N.W.2d 672, 391 Mich. 253, 1974 Mich. LEXIS 134, 86 L.R.R.M. (BNA) 2161

• Court: Michigan Supreme Court
• Decided: March 19, 1974
• Docket: 8 September Term 1973, Docket No. 54,450
• Status: Published

Opinions

Levin, J.

The question presented is whether the public employment relations act (PERA)¹ protects a public employee from discharge by his governmental employer for action taken by the employee in the prosecution of a grievance, filed with the employer, alleging a right under a collective bargaining agreement.

The defendant Reeths-Puffer School District, a public employer, appeals from a decision of the Court of Appeals enforcing an order of the Michigan Employment Relations Commission. The MERC order directs the school district to restore plaintiff Wilma Wilder, a public employee, to the status of a substitute bus driver and reimburse her back pay in a yet undetermined amount.

Mrs. Wilder was hired by the school district and in September, 1968, began work as a substitute school bus driver. She desired a permanent position. When other drivers, junior in seniority, were offered permanent positions, she complained and eventually filed a grievance asserting that such offers were in derogation of her seniority rights under the collective bargaining agreement.

During the pendency of her grievance, Mrs. Wilder communicated by telephone with the other drivers (whose appointment to permanent positions formed the basis for her grievance) seeking information which would enable her to prosecute her grievance effectively. The school district interpreted these communications as harassment of the other drivers and advised Mrs. Wilder that she would no longer be called as a substitute driver. She, in effect, was discharged.

Mrs. Wilder filed unfair labor charges against the union and the school district.² 2

The trial examiner found that Mrs. Wilder had been discharged for engaging in "lawful concerted activity”³ protected under § 9 and ordered reinstatement and back pay. He found that she had been discharged "not for having filed a grievance, but because of the telephone calls the charging party [Mrs. Wilder] made to other employees. In the opinion of the undersigned these telephone calls were inextricably related to the grievance that the charging party had filed relative to her treatment as a substitute bus driver.”

The examiner dismissed the grievance against the union on the ground that it did not state a cause of action under the act. Mrs. Wilder did not file exceptions to that determination.

The school district filed exceptions with MERC which adopted the pertinent findings of the examiner and issued an order incorporating his recommendations.

Upon MERC’s petition, the Court of Appeals ordered enforcement. We affirm.

I

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”.⁴ But an employee may not be discharged for exercising rights guaranteed by § 9 of the act.⁵

Section 10 of the act provides that it shall be unlawful for a public employer "to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9”.⁶ Section 9 provides 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

These provisions enlarging the rights of public employees were added to the Hutchinson Act⁸ by 1965 PA 379. They adopt word-for-word the analogous provisions of the National Labor Relations Act. Thereby, MERC was transformed into an agency akin to the NLRB and empowered for the first time to enter a remedial order for violation of the act.⁹

II

This appeal presents questions concerning the construction of the act not previously addressed by this Court. There are abundant decisions of the NLRB and the United States Courts of Appeals and the Supreme Court of the United States construing comparable provisions of the NLRA. The parties have relied on and we may appropriately look to the Federal precedents for guidance.¹⁰

The United States Supreme Court has applied the comparable provisions of the Federal Act to protect nonunion as well as union employees from interference for engaging in "concerted activity”.* ¹¹ Thus, it is not decisive whether Mrs. Wilder, who joined the union, was, as claimed by the school district, ineligible to join because she, a substitute driver, did not have "regularly scheduled hours” within the meaning of the collective bargaining agreement between the union and the school district.

The school district relies on Mushroom Transportation Co v National Labor Relations Board, 330 F2d 683, 685 (CA 3, 1964), where the Third Circuit held that an employee was not engaged in protected activity when he conversed with other employees about alleged employer failure to observe the union contract. In so holding the Court said that such activity is protected only if it is "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 of the employees”. The Mushroom Court carefully noted that the discharged employee had not filed a formal grievance and referred to his conversations with other employees as "mere 'griping.’ ”

The NLRB and United States Courts of Appeals have held, however, that the filing of a grievance by even a single employee constitutes protected concerted activity.¹² 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”.¹³

Since Mrs. Wilder had filed a formal grievance before she made the phone calls to the other drivers there is no need in this case to decide the extent of the protection provided employees who voice complaints or gripes which have not yet ripened into a formal grievance.¹⁴

Ill

Turning to the facts of this case, we consider MERC’s finding and conclusion that Mrs. Wilder’s telephone calls to other drivers were so "inextricably related” to the filing of her grievance that the telephone calls, too, constituted activity protected by the act.

The school district expected Mrs. Wilder, in accordance with its established practice, to remain on the substitute run assigned to her in September until the regular driver returned in November. The practice of not considering substitutes for permanent openings was adopted by the school district to avoid frequent shifting of drivers and resulting disruption of school bus schedules. Mrs. Wilder was advised that she would not be considered for a regular position even if one were to become available during her tenure as an assigned substitute. It was during this period that several drivers who had no prior service with the school district were given regular runs.

After Mrs. Wilder became a member of the union, she complained to Jack Moore, the bus supervisor for the school district, about her inability to secure a permanent position. Failing in this approach she spoke to Larry Duell, the Association’s president. Upon Duell’s recommendation, on November 8, following the procedure outlined in the collective bargaining agreement, she filed a written grievance requesting a regular run.

Duell presented Mrs. Wilder’s grievance to Moore, who did not then dispute her right to file a grievance, but dismissed it on the merits.

Under the terms of the collective bargaining agreement, rights accrue only to employees with "regularly scheduled hours”. The school district maintained that Mrs. Wilder’s hours as a substitute driver were not regularly scheduled and she did not enjoy rights under the agreement.

The union’s dissatisfaction with Moore’s response resulted in a meeting on November 18 with the school grievance committee. The grievance was not resolved at this meeting, but it was agreed that there would be further discussions regarding the status of substitute drivers under the collective bargaining agreement.

During the meeting, both Moore and Duell discussed complaints they had received from other drivers regarding Mrs. Wilder’s telephone calls. Nevertheless, Moore said that Mrs. Wilder would continue to be called as a substitute driver. Yet on December 2, Moore informed Mrs. Wilder that she would no longer be called because of complaints from other drivers about her telephone calls.

The trial examiner found that the calls were made by Mrs. Wilder "when preparing her grievance” and concluded that the cedis were "protected concerted activity”.

To effectively prosecute her grievance, Mrs. Wilder needed certain information: when were these other drivers hired, what had been their prior work experience for the district, the procedures followed in hiring them for permanent positions. She obtained this information by telephoning the other drivers, some of whom she had known for a number of years.

It would be incongruous to hold that Mrs. Wilder had a protected right to file a grievance, but was subject to summary discharge for seeking information which would enable her effectively to present the grievance. An employee may, in connection with the prosecution of a good faith grievance, employ reasonable, nonabusive, methods of obtaining information necessary to prosecute the grievance.

The school district argues that Mrs. Wilder, who avowedly sought the jobs of the other drivers, could not by telephoning them engage in "lawful concerted activities”. These other drivers, the "target” of Mrs. Wilder’s grievance, were against, if not hostile to, her position.

The school district asserts that Kathy Stolzman, one of the bus drivers telephoned by Mrs. Wilder, felt her job "threatened” by Mrs. Wilder’s telephone call. We discern no distinction between this "threat” and the threat inherent in any similar grievance asserting that someone was granted preferred status in derogation of another’s seniority rights. We would view the situation differently if MERC had found that Mrs. Wilder had threatened physical violence.¹⁵

Every employee who alleges a violation of his seniority rights asserts basically that someone else has obtained a benefit that belongs to him. An employee has protected access to the grievance machinery without regard to the disinterest or opposition of other employees.¹⁶

We hold that an employee may not be discharged for attempting in good faith to enforce a right claimed under a collective bargaining agreement.

IV

The school district asserts as a defense that Mrs. Wilder was not entitled to a regular bus run.

If an employee could be discharged for filing an unsuccessful grievance, filing would become hazardous indeed. Grievants who fail in the prosecution of their grievances are protected from discharge,¹⁷ except, possibly, if the grievance is without arguable merit or is advanced in "bad faith” or with "malice.”¹⁸

Mrs. Wilder had a reasonable basis in the collective bargaining agreement for asserting her grievance. The agreement covers nonteaching employees, including bus drivers, who have "regularly scheduled hours”. Mrs. Wilder during her stint as a substitute driver did have definite hours —a certain time each morning, a time each afternoon, five days a week. The union’s request that she become a member and acceptance of her dues indicates that it thought she had "regularly scheduled hours”. Article IV of the collective bargaining agreement states:

"Seniority. All job openings will be posted for three days, and bid on according to qualifications and seniority. Seniority will take precedence when the qualifications are equal or better.”

V

The school district’s good faith is not a defense. In National Labor Relations Board v Burnup & Sims, Inc, 379 US 21, 23-24; 85 S Ct 171; 13 L Ed (1964), the employer had discharged two employees who were organizing the other employees in the erroneous but good faith belief that the two had threatened violence to achieve their goals. The Supreme Court said:

"A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8(a)(1) right that is controlling.”¹⁹

VI

The school district maintains that Mrs. Wilder’s failure to refer specifically to "concerted activity” in her complaint deprived it of notice of the charge it was called upon to defend. The school district asserts further that the issue of Mrs. Wilder’s concerted activity was not litigated at the hearing but evolved "strictly as an afterthought” by the trial examiner.

The charge filed by Mrs. Wilder with MERC alleged that the school district engaged "in unfair labor practices within the meaning of Section(s) 10 & 11 of said Act”.²⁰ Although § 10 refers to § 9 rights, we agree that the wording of the charge is not enlightening as to the particular conduct charged against the school district. If the reason for Mrs. Wilder’s discharge were in dispute, her failure to frame the charge with greater particularity might require reversal or a remand to MERC for the taking of additional evidence.

However, the school district justified Mrs. Wilder’s discharge on the ground that she had made harassing phone calls to other drivers. There is no factual dispute concerning the reason for her discharge.²¹ The fuzziness of the wording in her complaint did not prejudice a full and fair presentation of the facts and the issues.

The trial examiner’s decision was not an afterthought. The examiner stated at the outset of the hearing that the charge alleged on its face a discriminatory action by the school board "apparently because [Mrs. Wilder] attempted to exercise some concerted activity guaranteed by the act in regard to the contractual provision”.

VII

In this case the Court of Appeals ordered MERC’s order enforced without formal submission or opinion following submission on the Court’s weekly motion docket of MERC’s petition and the school district’s response.

The school district moved for a rehearing on the ground that the procedure followed did not comply with this Court’s decision in Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 387 Mich 424; 196 NW2d 763 (1972). The application for rehearing was denied.

In Detroit Symphony, this Court pointed out that a petition for enforcement filed by MERC pursuant to § 423.23(e)²² is an original proceeding in the Court of Appeals and indicated that such petitions are to be considered by the Court of Appeals with the due deliberation of a calendared case, including opinion of the panel of the Court to which the case is assigned:

"By virtue of its original importance, it deserves as suggested in the cases cited below a compendious if not formal opinion of the legislatively appointed court of original jurisdiction. The need for such an opinion is apparent, for as said in one of the earlier Supreme Court cases (Virginian R Co v United States, 272 US 658, 675; 47 S Ct 222; 71 L Ed 463, 472 [1926]):

" 'The failure to accompany the decree by an opinion may thus deprive litigants of the means of exercising a sound judgment on the propriety of an appeal. And the appellate court, being without knowledge of the grounds of the decision below, is denied an important aid in the consideration of the case, and will ordinarily be subjected to much unnecessary labor.’ ” Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, supra, p 429.

A petition for enforcement under § 423.23(e)²³ invokes the jurisdiction of the Court of Appeals as of right. In contrast with a complaint for mandamus or superintending control, which original proceedings are considered by the Court of Appeals at least initially as motions, a petition for enforcement is not addressed to the discretion of the Court of Appeals.

The act provides that, upon the filing of such petition,²⁴ the Court of Appeals "shall” have jurisdiction of the proceeding and "shall” grant such relief as "it deems just and proper, enforcing, modifying, enforcing as so modified, or setting aside” the MERC order. It was not intended that this reviewing power would be exercised summarily without formal submission, oral argument and opinion.

While in this case we have reached and decided on the merits the school district’s assignments of error without formal submission, oral argument and opinion by the Court of Appeals, we anticipate-in future cases there will be full consideration by the Court of Appeals before consideration by this Court on the merits.

Affirmed. No costs, a public question.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Levin, J.

1 MCLA 423.201 et seq.; MSA 17.455(1) et seq.

2 The charges were filed with MERC’s predecessor, the Labor Mediation Board.

3 MCLA 423.209; MSA 17.455(9).

4 National Labor Relations Board v Century Broadcasting Corp, 419 F2d 771, 778 (CA 8, 1969).

Of course a discharge lawful under PERA may violate other rights of an employee, e.g. under the collective bargaining agreement or under the Fair Employment Practices Act, MCLA 423.301 et seq.; MSA 17.458(1) et seq.

⁵

6 MCLA 423.210; MSA 17.455(10).

7 Section 11 provides that "any individual employee at any time may present grievances to his employer and have the grievances adjusted, without the intervention of the bargaining representative, if the adjustment is not inconsistent” with the collective bargaining agreement and the bargaining representative has been given an opportunity to be present at the adjustment. MCLA 423.211; MSA 17.455(11).

This section has been held to permit an employer to negotiate directly with an individual grievant without violating MCLA 423.210, 423.215; MSA 17.455(10), 17.455(15), which proscribe unfair labor practices and evasion of collective bargaining agreements, but not to obligate an employer to process such a grievance. See Mellon v Board of Education of the Fitzgerald Public Schools, 22 Mich App 218; 177 NW2d 187 (1970).

8 1947 PA 336; MCLA 423.201 et seq.; MSA 17.455(1) et seq.

9 See Kahn, Labor Law: A Michigan Practitioner’s Guide § 2.2, pp 100-101; Walsh, Michigan Labor-Management Relations Law Past and Present, 44 J Urban L 89, 93-94 (1966).

10 See Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), where this Court, noting the similarity in language between provisions of PERA and provisions of NLRA, relied on Federal precedents.

11 National Labor Relations Board v Washington Aluminum Co, 370 US 9; 82 S Ct 1099; 8 L Ed 2d 298 (1962). Similarly, see Hugh H Wilson Corp v National Labor Relations Board, 414 F2d 1345, 1347 (CA 3, 1969); National Labor Relations Board v Schwartz, 146 F2d 773, 774 (CA 5, 1945); Joanna Cotton Mills Co v National Labor Relations Board, 176 F2d 749, 752 (CA 4, 1949); National Labor Relations Board v Serv-Air, Inc, 401 F2d 363, 365 (CA 10, 1968).

12 New York Trap Rock Corp, 148 NLRB 374, 375-376 (1964); National Labor Relations Board v Bowman Transportation, Inc, 314 F2d 497, 498 (CA 5, 1963); Socony Mobil Oil Co v National Labor Relations Board, 357 F2d 662, 663-664 (CA 2, 1966); Crown Central Petroleum Corp v National Labor Relations Board, 430 F2d 724, 729 (CA 5, 1970); National Labor Relations Board v Selwyn Shoe Manufacturing Corp, 428 F2d 217, 221 (CA 8, 1970).

13 National Labor Relations Board v Selwyn Shoe Manufacturing Corp, supra.

Similarly:

"When an individual employee attempts to enforce a provision of a collective bargaining agreement, he is asserting a 'collective’ right under a collective contract. Although an individual employee, in processing his complaint based upon a contractual provision, might be concerned primarily with accomplishing a result which will benefit him personally, his success will redound to the direct benefit of all employees similarly situated. In the instant case, Davis [the discharged employee] was concerned primarily with convincing Rose [employer’s representative] that he was entitled to the holiday pay under the collective bargaining agreement. However, Davis was, in effect, representing all other probationary employees (both present and future) for, if successful, his efforts would benefit this class of persons.” (Emphasis by author.) National Labor Relations Board v Northern Metal Co, 440 F2d 881, 888 (CA 3, 1971), per Biggs, J., dissenting.

14 See C & I Air Conditioning, Inc, 193 NLRB 911 (1971), where the Board found that an individual’s complaint seeking to implement a right claimed under a collective bargaining agreement was protected activity even though a formal grievance was not filed. See, also, Note, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro Split, 121 U Pa L Rev 152 (1972); Case Note, 13 B C Ind & Com L Rev 176 (1971).

15 Cf. Corriveau & Routhier Cement Block, Inc v National Labor Relations Board, 410 F2d 347 (CA 1, 1969), where the Court denied enforcement of the Board’s order to reinstate workers who had made threats of violence against a fellow employee.

See, also, Falcon Plastics — Division of B-D Laboratories, Inc v National Labor Relations Board, 397 F2d 965, 967 (CA 9, 1968); National Labor Relations Board v Hartmann Luggage Co, 453 F2d 178, 184-185 (CA 6, 1971); Hugh H Wilson Corp v National Labor Relations Board, 414 F2d 1345, 1355-1356 (CA 3, 1969): "[A]s long as the activities engaged in are lawful and the character of the conduct is not indefensible in the context of the grievance involved, the employees are protected” (emphasis by the Court); National Labor Relations Board v Leece-Neville Co, 396 F2d 773, 774 (CA 5, 1968); National Labor Relations Board v Ben Pekin Corp, 452 F2d 205, 207 (CA 7, 1971).

"[N]ot every impropriety committed during such [protected] activity places the employee beyond the protective shield of the act. The employee’s right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain order and respect.” National Labor Relations Board v Thor Power Tool Co, 351 F2d 584, 587 (CA 7, 1965).

16 Cf. National Labor Relations Board v Interboro Contractors, Inc, 388 F2d 495, 500 (CA 2, 1967).

17 See National Labor Relations Board v Halsey W Taylor Co, 342 F2d 406, 408 (CA 6, 1965), where the Court enforced the Board’s reinstatement of an employee discharged for asserting a grievance: "We are not concerned in this case with the merit or lack of merit of [the employee’s] grievance.” See, also, National Labor Relations Board v John Langenbacher Co, 398 F2d 459, 462-463 (CA 2, 1968); National Labor Relations Board v Ben Pekin Corp, 452 F2d 205, 206 (CA 7, 1971).

18 Cf. Socony Mobil Oil Co v National Labor Relations Board, 357 F2d 662, 663-664 (CA 2, 1966) (grievance asserted in good faith and not out of malice is protected activity); Joanna Cotton Mills Co v National Labor Relations Board, 176 F2d 749, 753 (CA 4, 1949) (Court held circulation of petition enumerating grievances not protected because purpose of grievance had "no relations to collective bargaining, hours, or conditions of work”).

19 Section 10 of PERA corresponds to § 8(a)(1) of the NLRA.

Similarly, see Welch Scientific Co v National Labor Relations Board, 340 F2d 199, 203 (CA 2, 1965); National Labor Relations Board v Serv-Air, Inc, 401 F2d 363, 366 (CA 10, 1968); Crown Central Petroleum Corp v National Labor Relations Board, 430 F2d 724, 729 (CA 5, 1970).

20 LMB and now MERC’s policy with respect to the filing of an unfair labor charge differs from the Federal counterpart. MERC sets the case for hearing upon the individual’s filing of the charge unless it is patently frivolous or fails to state a cause of action. MERC does not, as does the national board, first investigate and then decide whether to dismiss the charge or issue a complaint. The charging party, and not MERC, has the burden of establishing the unfair labor practice. Howlett, Michigan’s New Public Employment Relations Act, 45 Mich State B J 12, 16 (1966).

21 The school district asserts that to establish an unlawful discharge the employee must prove that the employer definitely knew the employee was engaged in a protected activity and discharged the employee for that reason.

The employer’s knowledge of the employee’s activities is relevant where there is an issue concerning the reason for the employee’s discharge. See, e.g., National Labor Relations Board v Century Broadcasting Corp, 419 F2d 771, 777 (CA 8, 1969); National Labor Relations Board v Office Towel Supply Co, 201 F2d 838, 840 (CA 2, 1953). Here there is no factual dispute concerning the reason for Mrs. Wilder’s discharge.

The protection of the employee’s right to engage in lawful concerted activity is not dependent on the employer having absolute knowledge that the activity is protected. See Texas Aluminum Co v National Labor Relations Board, 435 F2d 917, 919 (CA 5, 1970) (employer’s knowledge of employee’s concerted activity "may be inferred from circumstantial evidence”); National Labor Relations Board v Office Towel Supply Co, supra ("[I]f an employer, having knowledge of the pertinent facts, violates the Act, his motives are irrelevant.” [Emphasis supplied.])

22 MCLA 423.23(e); MSA 17.454(25) (e).

23 And, similarly, upon filing of a complaint for review under MCLA 423.23(f); MSA 17.454(25)(f).

24 Or upon filing of a complaint for review (see fn 23).