MacOmb County v. John P Greiner
334264
| Mich. Ct. App. | Dec 26, 2017Background
- John Greiner, a Macomb County employee, was terminated on Nov 7, 2012 for alleged incompetence and insubordination based on incidents from Sept 26–27, 2012.
- Greiner claimed he had reported an overtime-fraud scheme to county management and the union (AFSCME), and asserted his termination was retaliation to prevent disclosure.
- AFSCME’s staff rep, Paul Long, attended a Loudermill pretermination hearing; Greiner contends AFSCME asked to continue the hearing for additional evidence but the county refused and then terminated him.
- Greiner grieved his termination; AFSCME submitted the grievance to the union’s Arbitration Review Department, which rejected arbitration (citing past discipline and a 2010 last-chance agreement). Greiner’s appeals were denied.
- Greiner filed unfair-labor-practice charges against Macomb County (retaliation under PERA) and AFSCME (breach of duty of fair representation). An ALJ recommended dismissal; MERC affirmed. Greiner appealed to the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud on the court / perjured testimony by union rep | Long perjured himself about receiving and discussing a harassment complaint; this concealed material facts | Any inconsistent testimony was presented at the hearing; no material fact was concealed and the ALJ assumed Greiner’s version where disputed | No fraud on the court; allegation fails because testimony was before the ALJ and no material concealment shown |
| Duty of fair representation: failure to secure continuance of Loudermill hearing | AFSCME failed to insist on or secure a continuance so Greiner could present witnesses and evidence, breaching its duty | AFSCME requested a continuance and requested supporting evidence; decision to continue was solely the employer’s prerogative; AFSCME continued to represent Greiner afterward | MERC/ALJ: no breach — AFSCME requested continuance and had no control over county’s refusal; continued representation and arbitration submissions occurred |
| Duty of fair representation: failure to forward ten-day suspension grievance to arbitration review | Greiner says AFSCME never forwarded the ten-day suspension grievance (no rejection notice received) | AFSCME submitted all grievances; arbitration dept. considered grievances together; Greiner offered no evidence beyond speculation | MERC/ALJ: no breach — record evidence showed submission; plaintiff’s speculation insufficient |
| PERA discrimination / retaliation by Macomb County | Termination was retaliation for Greiner’s protected activity (reporting overtime fraud and filing grievances); progressive discipline was fabricated to justify discharge | County argues reporting fraud was not concerted/protected activity under PERA; no evidence of antiunion animus or that protected activity motivated discharge; last-chance agreement authorized discharge for misconduct | MERC/ALJ: no prima facie PERA violation — plaintiff failed to show protected concerted activity, employer animus, or causal link; last-chance agreement permitted termination |
Key Cases Cited
- Tomiak v Hamtramck Sch Dist, 426 Mich 678 (Loudermill due process requires pretermination opportunity to respond)
- Plymouth-Canton Cmty Sch v State Tenure Comm, 435 Mich 76 (purpose of Loudermill is an initial check for reasonable grounds)
- Cleveland Bd of Ed v Loudermill, 470 US 532 (pretermination hearing requirement under due process)
- Matley v Matley, 242 Mich App 100 (fraud on the court defined as concealment or material misrepresentation)
- Polkton Twp v Pellegrom, 265 Mich App 88 (preservation of issues for appeal)
- Goolsby v Detroit, 419 Mich 651 (PERA implies union duty of fair representation)
- Taylor Sch Dist v Rhatigan, 318 Mich App 617 (elements of union duty of fair representation; PERA discrimination test elements)
- Calhoun Intermediate Sch Dist v Calhoun Intermediate Ed Ass’n, 314 Mich App 41 (standard of review for MERC decisions)