ST CLAIR COUNTY EDUCATION ASSOCIATION v. ST CLAIR COUNTY INTERMEDIATE SCHOOL DISTRICT
Case Details
- Citation
- 245 Mich. App. 498
- Judge(s)
- Before: M. J. Kelly, P.J., and Whitbeck and Collins, JJ.; Collins, J., concurred.; M. J. Kelly, P.J., did not participate.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
- Circuit
- 6th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Court of Appeals affirmed MERC's decision on both the ISD's appeal and the union's cross-appeal. The ISD violated PERA §10(l)(a) by threatening to eliminate an employee's position if she pursued union membership and sought salary increases (plaintiff union win on this claim). However, the ISD and the public school academy did not violate §10(l)(e) by refusing to bargain for academy employees, as they were not joint employers (defendant ISD win on this claim).
Excerpt
ST CLAIR COUNTY EDUCATION ASSOCIATION v ST CLAIR COUNTY INTERMEDIATE SCHOOL DISTRICT Docket No. 218135. Submitted August 8, 2000, at Lansing. Decided May 1, 2001, at 9:00 AM. The St. Clair County Education Association (the union) brought an unfair labor practice charge against the St. Clair County Intermediate School District (isd), alleging that the ISD violated subsection 10(l)(a) of the public employment relations act (pera), MCL 423.210(l)(a), by interfering with a person’s rights to join the union and to seek the union’s assistance in obtaining a salary increase. A Michigan Employment Relations Commission (MERC) hearing referee agreed with the union and issued a decision and recommended order to that effect. The merc thereafter issued a decision and order adopting the hearing referee’s decision and recommended order. The union also brought an unfair labor practice charge against the ISD and the Academy for Plastics Manufacturing Technology (the academy), a public school academy formed by the isd, alleging violation of subsection 10(l)(e) of the pera, MCL 423.210(l)(e), as a result of the failure to bargain with the union with regard to the union’s request to represent the employees of the academy in collective bargaining. A merc hearing referee issued a decision and recommended order, finding no violation of subsection 10(l)(e) of the PERA. The referee determined that the academy and the ISD were not joint employers of the academy’s employees and recommended dismissal of the union’s petition for unit clarification. The merc adopted the hearing referee’s decision and recommended order in the same decision and order that addressed the union’s unfair labor practice charge regarding the alleged violation of subsection 10(l)(a) of the pera. The merc also denied the union’s motion to reopen the record with regard to the alleged violation of subsection 10(l)(e). The isd appealed from the decision and order with regard to the alleged violation of subsection 10(l)(a) and the union cross appealed from the decision and order regarding the alleged violation of subsection 10(l)(e), the dismissal of the petition for unit clarification, and the denial of the motion to reopen the record. The Court of Appeals held,: The decision and order must be affirmed with regard to both the isd’s appeal and the union’s cross appeal. 1. The hearing referee and the merc properly found that the isd’s conduct violated subsection 10(l)(a) when the isd attempted to coerce an isd employee while the employee was engaged in the exercise of her rights guaranteed in § 9 of the pera, MCL 423.209. 2. The merc correctly found that the isd and the academy did not violate subsection 10(l)(e) in refusing to bargain with the union with regard to the academy’s employees on the basis that the ISD and the academy did not jointly employ the academy’s employees. The merc correctly dismissed the union’s petition for unit clarification. 3. The additional evidence that the union sought to introduce by reopening the record would not prove that the isd and the academy were joint employers of the academy’s employees and thus would not have had any effect on the administrative proceedings. The merc did not err in denying the motion to reopen the record. ■Affirmed. Labor Relations — Collective Bargaining — Joint-Employer Doctrine. The joint-employer doctrine may be employed to enforce a labor agreement entered into through collective bargaining against a party that did not sign the agreement; characteristics to be examined to determine whether a party that did not sign the agreement exhibits the characteristics of an employer and may be deemed the employer under the agreement include the party’s power to select, engage, or dismiss the employees, the party’s power to control the employees’ conduct, and the party’s payment of the employees’ wages. Amberg, McNenly, Firestone and Lee, P.C. (by Joseph H. Firestone), for the St. Clair County Education Association. Scott C. Moeller, for the St. Clair County Intermediate School District. Fletcher DeGrow, P.C. (by Gary A. Fletcher and John D. Tomlinson), for the Academy for Plastics Manufacturing Technology. Before: M. J. Kelly, P.J., and Whitbeck and Collins, JJ. Whitbeck, J. The St. Clair Intermediate School District (isd) appeals as of right and challenges the decision of the Michigan Employment Relations Commission (MERC) to affirm one of two unfair labor practice charges brought by the St. Clair County Education Association (the union). The union cross appeals the merc’s decision to dismiss the second unfair labor practice charge, its petition for unit clarification, and its motion to reopen the record. We affirm the MERC decision with regard to the appeal and the cross appeal. I. BASIC FACTS AND PROCEDURAL HISTORY A. JANE JOHNSON’S UNFAIR LABOR PRACTICE CHARGE Jane Johnson has been a registered nurse at the ISD’s Woodland Development Center, a center for mentally and physically impaired students, for approximately seventeen years. She is the only registered nurse the ISD employs. Johnson repeatedly sought to have her position included among the positions for which the union would bargain in contract negotiations. The union shared Johnson’s goal of having her position added to the bargaining unit. The union’s efforts to bargain on this issue were, however, unsuccessful. According to isd Superintendent Joe Caimi, several years ago Johnson had asked him for teacher’s pay, but he denied her request. Johnson was always paid the same salary as teachers in the bargaining unit and had received all across-the-board pay increases that teachers in the unit received. However, Johnson, whose pay was equivalent to a teacher at step three, received no step increases in pay. Apparently, if Johnson had received these step pay increases, she would be paid at least $16,000 more a year. In May 1997, the union and the isd began negotiating a new collective bargaining agreement. The union presented its initial proposals to the isd, including a proposal to bring Johnson’s nursing position into the bargaining unit. Shortly thereafter, Caimi discussed the proposal with Janice Frederick, the isd’s director of special education and Johnson’s supervisor. Caimi assumed that Johnson wanted to join the bargaining unit because she believed that unit membership would bring her a teacher’s pay. Caimi told Frederick that Johnson needed to know that this was not necessarily true; Caimi evidently wanted to make sure that “no one was deluded into thinking’’ that the ISD was going to agree to pay Johnson the same salary as a teacher. Caimi also said that “if it became an issue,” the isd might have to terminate Johnson’s position and contract for services with a local hospital. Caimi asked Frederick to meet with Johnson to convey this information. According to Caimi and Frederick, there was no discussion between them about Caimi’s opinion of unions. In late May 1997, Frederick approached Kenneth Adams, who was then the president of the union. According to Adams, Frederick told him that Caimi said that if Johnson’s position were included in the bargaining unit, it would be “jobbed out” and that Johnson would be laid off. However, Frederick said, she told Adams that if Johnson were successful in her attempt to be admitted to the union and receive a teacher’s pay, her wage would be out of the range for registered nurses in the county and she might “place herself out of a position.” On the same day, Frederick also spoke directly with Johnson. According to Johnson, Frederick said that if Johnson continued to “pursue union membership” there was a possibility that she would be released and replaced. Johnson also claimed that Frederick stated that Caimi detested unions and that there was “no way in hell that he was going to allow one more member into the union.” Frederick, however, said that she told Johnson that if she thought union membership would bring her teachers’ pay, that this was a misperception and that her pay would be out of line with what other nurses make in the county and we couldn’t justify that sort of position for that pay and may need to terminate the position and contract it out. Frederick denied saying anything to Johnson about Caimi’s opinion of unions. The union and the isd finally agreed to a new contract that did not cover Johnson or her position. The union subsequently brought an unfair labor practice charge against the isd, alleging that the ISD violated subsection 10(l)(a) of the public employment relations act (pera) by telling Johnson that she would lose her job if she joined the union. Subsection 10(l)(a) of the pera makes it “unlawful for a public employer or an officer or agent of a public employer . . . to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9.” In turn, § 9 of the pera states: It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice. After a hearing, the merc hearing referee determined that the isd violated pera subsection 10(l)(a) by interfering with Johnson’s rights to join a union and to seek the union’s assistance for a salary increase when Frederick told Johnson that she would lose her job if she joined the union. The hearing referee found that Johnson was engaged in protected activity when she sought to become a member of the bargaining unit and when she sought the union’s assistance in obtaining a wage increase. The hearing referee did not give credit to Johnson’s version of the conversation about Caimi’s negative view of unions, but concluded that, even if Frederick’s testimony regarding her conversation with Johnson were believable, her statements to Johnson constituted “an unlawful threat.” The hearing referee then commented: The threat to terminate Johnson’s position was clearly conveyed. Although the threat to eliminate Johnson’s position is tied to her receiving teachers’ pay, not to her becoming part of the bargaining unit, Frederick made no effort to distinguish the two. The message which Caimi wanted Frederick to convey, and the message which apparently got through to both Johnson and Adams, was the same: stop pushing the issue of Johnson’s inclusion in the unit/salary increase, or Johnson will end up without a job. The hearing referee recommended that the ISD be ordered to do the following: 1. Cease and desist from interfering with its employees’ exercise of their rights under Section 9 of pera by threatening to subcontract their positions if they form, join or assist in labor organizations, or engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection. 2. Post the attached notice [promising that the isd will not interfere with employees engaging in protected activities under the pera or threaten that they will lose their jobs if they join the union] to employees in places on the Respondent’s premises where notices are commonly displayed for a period of 30 consecutive days. In late February 1999, the MERC issued a decision and order adopting the hearing referee’s decision and recommended order concerning the isd’s treatment of Johnson, stating: After carefully reviewing the record as a whole, we find that the totality of the evidence supports the [hearing referee’s] conclusion that the statement constituted a threat in violation of Section 10(l)(a) of pera. The clear import of the statement is that Johnson's position would likely be eliminated if she continued her efforts to become a member of the Union and seek the Union’s assistance in obtaining a salary increase. As noted by the [hearing referee], there is no evidence in the record to suggest that the Employer would be forced to terminate Johnson if she were to receive the same salary as a teacher, or that circumstances outside the isd’s control might cause the Employer to eliminate Johnson if her position was in fact included in the unit. See NLRB v River Togs, Inc, 382 F2d 198 (CA2, 1967). B. THE ACADEMY’S UNFAIR LABOR PRACTICE CHARGE The union’s cross appeal involves the isd’s decisions to form a public school academy for its defunct plastics manufacturing program and to prevent the union from bargaining on behalf of the employees at that public school academy. The isd created the plastics program in the 1980s and operated it at its Technical Educational Center (the tec) until 1992, when the isd discontinued the program because it could not produce graduates who were sufficiently trained to secure jobs in the industry. In early 1996, representatives of local plastics manufacturing companies approached the ISD about reinstating the program. The representatives informed the isd that they needed well-trained employees and were willing to commit time and money to work with the ISD to create a program that would achieve this goal. Caimi told the representatives that if they were interested in starting a plastics program, they should consider organizing a public school academy under the relevant part of the Revised School Code. In March 1996, the representatives from the plastics manufacturers submitted an application to the ISD seeking to establish a public school academy. The representatives and the ISD subsequently drafted a contract to create the Academy for Plastics Manufacturing Technology (the academy). In November 1996, the isd submitted the contract between the isd and the academy, along with supporting documentation, to the Michigan Department of Education for approval and authorization of state aid payment. The union, however, objected to the way the contract between the isd and the academy dealt with personnel. In terms of hiring personnel, the contract stated in pertinent part: All persons who perform services for the Academy shall be “at-will” employees or volunteers of the Academy. The District agrees that the Academy may select its personnel directly without prior authorization from the District, subject to compliance with all applicable federal and Michigan rules and regulations, including, without limitation, requirements concerning the recruitment of applicants and the use of background and criminal checks. The Academy shall inform the District’s Superintendent or designee of all personnel selected in order that their hiring may be approved by the District in accordance with Section 516 of the Act. Such approval shall not be unreasonably withheld. It is the intent of the parties hereto not to create a joint-employer relationship. The Academy may terminate the employment of any personnel so long as such employees are not terminated for constitutionally impermissible reasons or reasons prohibited by Applicable Law. All teachers and employees required to the certified, authorized or permitted if employed in a school district as defined in the Act, shall be required to be certified, authorized or permitted by the Academy as well, all in compliance with Part 22 of the Act. According to the referee’s findings, the contract between the ISD and the academy also set forth a variety of personnel policies for the academy, including: (1) when the academy makes personnel decisions, it must comply with all state and federal laws and the terms of the contract; (2) the academy must make all employment decisions, including prescribing employment duties and determining compensation and other benefits; (3) the academy has the final authority on all disciplinary matters, but could designate an individual or entity to perform the disciplinary functions; (4) the academy must provide the ISD with a quarterly report detailing its progress, policy development, student attendance and discipline information, and personnel matters; (5) the academy has the authority to design and implement its educational program, curriculum, and content standards consistent with the requirements that apply to area vocational-technical education programs; (6) the academy must adopt and enforce its own attendance policies, which must accommodate the attendance policies of the ISD and its component districts in a manner that permits the local districts to comply with state compulsory attendance laws, including day and hour requirements; (7) the academy must adopt and enforce its own student conduct policies, policies concerning student health and welfare, and policies governing work-based instruction; and (8) the academy has the authority to discipline students, but the academy board must make any disciplinary decision involving a suspension of ten or more days. Subsection 7(e) of the contract stated in part: The Academy shall be responsible for its own operations within the limitations of any funding provided through the District as fiscal agent to the Academy and other revenues derived by the Academy consistent with law, and shall have authority to independently exercise, also consistent with applicable law, the following powers: contract for goods and services; prepare a budget; select and direct personnel, evaluate their performance and determine their compensation and continued employment; procure insurance; own or lease facilities for school purposes; purchase, lease or rent furniture, equipment and supplies; and accept and expend gifts, donations or grants of any kind in accordance with such conditions prescribed by the donor as are consistent with law and all other powers provided by law, not contrary to any of the terms of this Contract. The District shall be given written notice of all accepted gifts, donations and grants, and any condition thereof, within ten (10) business days of receipt. As the hearing referee explained: As provided by statute, the isd is the fiscal agent for the Academy and has general oversight of the Academy’s fiscal status. The academy must submit to the isd a copy of its annual budget and a monthly revenue and expenditure report. The Academy receives state aid calculated on a per pupil basis, and has also obtained grants. The Academy pays the isd for a variety of business and administrative services the isd provides to it. The isd also pays the Academy for “educational services,” i.e., plastic manufacturing and metal machining instruction provided to students of the isd. The initial board of trustees of the academy consisted of five representatives from different local plastics manufacturing companies, including three chief operating officers. Under the articles of incorporation, the ISD could increase the number of trustees to a maximum of nine individuals. The articles of incorporation required the academy to submit a list of nominees for a trustee position to the isd, the district then had the task of appointing the new trustee from that list. Either the board of the isd or the board of the academy could remove a trustee by a two-thirds vote. In late 1996, the academy began its operations at the TEC facility with one instructor and six students. Pursuant to the contract between the academy and the isd, the academy hired the instructor, who did not become part of the union’s bargaining unit. Under the service contract attached to the main contract, the ISD provided the academy with a range of services and the academy reimbursed the ISD for those services. Fred Stanley oversaw operations at the academy and also became its director. In early 1997, the isd offered to transfer its existing metal machine tool program to the academy. The ISD told the academy that the academy would continue to control its own membership, set policy, and hire and direct its own staff. The academy accepted the proposal. Accordingly, the isd and the academy amended the existing contract to include the metal machine tool program. In late May 1997,
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