The Michigan Employment Relations Commission (“MERC”) released two decisions of note in July. Both cases were dismissed in full – one adopting the Administrative Law Judge’s (“ALJ”) decision and the other overruling the ALJ’s order. Summaries of these decisions are as follows:
Birmingham Public Sch., Case No. C16 I-098. Lusk Albertson is pleased to share the good news in this case, in which Lusk Albertson’s own Bob Schindler represented, and argued on behalf of, the District.
The Union filed an unfair labor practice charge alleging the District engaged in unlawful discrimination and intimidation against an employee and union member, in violation of Sections 10(1)(a) and (c) of the Public Employment Relations Act (“PERA”). The basis for the charge involved the teacher’s previous grievance. In a past case, the teacher filed a grievance after she was verbally reprimanded for discussion of topics in her second‑grade class deemed inappropriate for the students’ ages. A June 2014 arbitrator decision resulted in an award in her favor, and the District was ordered to discontinue its restrictions on what news topics could be discussed in her classroom. The following school year, the teacher continued to teach second grade and the evaluation process significantly changed. Thereafter, the teacher was assigned to third grade and then to kindergarten, where the teacher alleged she could not continue her news program due to the students’ ages. During this time period, the District continued to evaluate the teacher’s performance with an overall rating of “effective.” In June 2017, the teacher sought a transfer to another school with an open second grade position. Due to an oversight by the District, the position was filled prior to receiving the teacher’s application. The Union subsequently filed its unfair labor practice charge.
The ALJ determined that neither the teacher’s reassignment to kindergarten nor the District’s failure to allow her to transfer to another school had constituted adverse employment actions, thus the District had not violated the PERA. Although the ALJ found that the teacher’s evaluations constituted adverse employment actions under the PERA, there was no evidence that the District was motivated by hostility towards the teacher for filing her complaint. The MERC agreed and added that, given the District’s legitimate non-discriminatory basis for the evaluations, no violation of the PERA occurred.
The MERC did not agree with the ALJ completely, however. While the ALJ determined that the teacher’s reassignment to kindergarten was a threat directed at her for filing a complaint, and thus the District had violated the PERA, the MERC reversed the ALJ. The MERC reasoned that the District did not communicate an intent to suspend or discharge the teacher by assigning her to kindergarten, nor did the District’s oversight in her transfer application expressly or impliedly threaten to penalize her without indication that the Human Resources Dean had a discriminatory motive. Therefore, the unfair labor practice charge was dismissed in its entirety. The opinion may be accessed here.
City of Detroit Water & Sewerage Dept., Case No. C15 K-144. The case involved former unit employees’ unfair labor practice charge against the City of Detroit Water & Sewage Department (“DWSD”) for its decision not to select or recommend officers of the bargaining unit represented by the Union for the new chemist positions because the Union officers engaged in protected activities.
The ALJ concluded that DWSD did not violate the PERA, and the MERC agreed. The ALJ based this decision on the evidence presented to determine that no collective bargaining agreement existed between the parties; thus, DWSD’s refusal to arbitrate a grievance was not a breach of the Employer’s duty to bargain. Furthermore, the ALJ noted that the Union did not make a timely demand nor give adequate notice to trigger DWSD’s duty to bargain over the impact of its reorganization decision prior to the layoffs.
Similarly, the ALJ found that DWSD did not violate the PERA when it did not select the Union’s officers. Further, the ALJ determined that the Union did not establish that DWSD acted based on antiunion animus or hostility towards the Union’s members’ PERA rights. The MERC agreed, noting that the Union failed to prove that DWSD’s actions tended to interfere with the free exercise of protected employee rights. More specifically, because the person who made the decision on behalf of DWSD did not participate in bargaining with the Union there was no evidence that his decision was adversely affected by the officers’ union activity. Overall, the MERC determined that the exceptions filed by the Union were without merit, and accordingly, DWSD did not violate Section 10(1)(a)(c) or (e) of the PERA. The opinion may be accessed here.