DEMINGS v CITY OF ECORSE
Docket No. 72407
Supreme Court of Michigan
Argued April 3, 1985. Decided November 7, 1985.
423 Mich 49
Calendar No. 6
Docket No. 72407. Argued April 3, 1985 (Calendar No. 6). — Decided November 7, 1985.
Alvin Demings was promoted from the rank of patrolman to the rank of detective by the City of Ecorse Police and Fire Commission. Thereafter, Frank Chirillo, a fellow police officer with more departmental seniority than the plaintiff filed a grievance, claiming that the promotion of the plaintiff violated the terms of the collective bargaining agreement between the city and the Police Officers Association of Michigan, the exclusive bargaining agent both for the plaintiff and Chirillo. An arbitrator granted the union‘s request that the plaintiff and his attorney be excluded from the hearing, but permitted the plaintiff to submit written arguments, and subsequently ruled that the promotion be reconsidered. The city rescinded the plaintiff‘s promotion and returned him to the rank of patrolman. Following refusal by the union to pursue a grievance in the plaintiff‘s behalf, he brought an action in the Wayne Circuit Court against the City of Ecorse and the Ecorse Police and Fire Commission, alleging breach of contract and discrimination on the basis of race, and against the union, alleging breach of its duty of fair representation by excluding the plaintiff and his attorney from the Chirillo arbitration and by refusing to file a grievance on his behalf. In addition, the plaintiff sought a temporary injunction to restrain the city from demoting him and monetary damages. The court, Robert J. Colombo, J., set aside the arbitration award, holding that the plaintiff‘s exclusion from the grievance proceeding was arbitrary and capricious and constituted a denial of due process. Arbitration was ordered in which the plaintiff and his attorney were to have full opportunity to participate, and the plaintiff was restored to the rank and pay of detective, retroactive to the date of his demotion. The court also denied the union‘s motion for accelerated or summary judgment which asserted that the
REFERENCES FOR POINTS IN HEADNOTES
[1-4] Am Jur 2d, Labor and Labor Relations §§ 398 et seq.
What constitutes unfair labor practice under state public employee relations acts. 9 ALR4th 20.
In an opinion by Justice LEVIN, joined by Chief Justice WILLIAMS, and Justices RYAN and BRICKLEY, the Supreme Court held:
The circuit court has concurrent jurisdiction with the Michigan Employment Relations Commission of actions alleging breach by a union of its duty of fair representation brought under the public employment relations act.
- The public employment relations act 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. 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. In this case, no adequate reason for departing from the federal model in fair representation cases has been advanced. The provisions of the PERA 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.
- The general rule that the NLRB has exclusive jurisdiction of unfair labor practice charges and that the states must defer to the administrative agency was created to permit administrative agencies to develop rules within their areas of expertise which would be enforced uniformly. Nevertheless, exceptions to the rule of exclusive agency jurisdiction of unfair labor practices have developed. Federal case law has held that the unique role played by the fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements, render preemption inapplicable and, thus, both state and federal
courts have concurrent jurisdiction of fair representation actions. Rejection of exclusive agency jurisdiction in fair representation actions is justified because the fair representation doctrine was judicially developed, fair representation actions involve review of substantive areas not within the field of expertise of the NLRB, the courts are the best protectors of individual rights including enforcement of the right to fair representation, and the right of fair representation figures prominently in breach of contract actions under the NLRA. It would be incongruous for a court that has litigated the fault of an employer and a union to fashion a remedy only with respect to the employer. Like the NLRB, the MERC has no greater expertise than the courts in fair representation cases. In addition, in cases such as the instant case, breach of contract actions against the employer are combined with actions claiming breach of the duty of fair representation against the union, providing another reason for allowing the courts concurrent jurisdiction of private and public sector claims involving breach of fair representation. - The arbitration award at issue could have been vacated only if the union 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 the plaintiff and the denial of the union‘s motion for summary judgment, remand to the trial court is required to determine whether the union‘s conduct violated the standards applicable in fair representation cases.
Affirmed in part and remanded.
Justice RILEY, joined by Justices CAVANAGH and BOYLE, dissenting, stated: Under the public employment relations act, the Michigan Employment Relations Commission has exclusive jurisdiction to decide claims of breach by a union of the duty of fair representation where breach of a collective bargaining agreement is pled against the employer. A union‘s duty to fairly represent public employees in the processing of grievances is derived from its power under the public employment relations act to act as the exclusive representative of the employees. The exclusion of the plaintiff from an arbitration hearing of a fellow officer‘s claim did not, as a matter of law, violate the plaintiff‘s right to fair representation.
- A breach of the duty of fair representation by a union is an unfair labor practice under the public employment relations act. Case law has repeatedly interpreted this provision as vesting the Michigan Employment Relations Commission with
the exclusive jurisdiction to determine claims of unfair labor practices. The Legislature has, through the PERA, enumerated both the rights and privileges of public employees and the means of enforcing those rights. The consistent construction of the act as the dominant law in public employee labor relations is persuasive that the act‘s jurisdictional provision for resolution of disputes such as that in this case is controlling. - The public employment relations act impliedly imposes on labor organizations representing public employees a duty of fair representation. The duty arises from the right of the union, conferred by the act, to exclusively represent its members, not from a contractual relation between the union and the members. The duty applies not only in contract negotiation, but also in matters of contract administration, including the processing of grievances.
127 Mich App 608; 339 NW2d 498 (1984) affirmed in part.
OPINION OF THE COURT
1. LABOR RELATIONS — PUBLIC EMPLOYEES — FAIR REPRESENTATION — JURISDICTION.
The circuit court has concurrent jurisdiction with the Michigan Employment Relations Commission of actions alleging breach by a union of its duty of fair representation brought under the public employment relations act.
DISSENTING OPINION BY RILEY, J.
2. LABOR RELATIONS — PUBLIC EMPLOYEES — FAIR REPRESENTATION.
A union‘s duty to fairly represent public employees in the processing of grievances is implied from its power under the public employment relations act to act as the exclusive representative of the employees; under the act, the Michigan Employment Relations Commission has exclusive jurisdiction to decide claims of breach by a union of the duty of fair representation where breach of a collective bargaining agreement is pled against the employer (
3. LABOR RELATIONS — PUBLIC EMPLOYEES — FAIR REPRESENTATION — GRIEVANCES.
The duty of a public employees’ union to fairly represent its members arises from the right of the union, conferred by the public employment relations act, to exclusively represent its members, not from a contractual relation between the union and the members; the duty applies not only in contract negotiation, but also in matters of contract administration, including
4. LABOR RELATIONS — PUBLIC EMPLOYEES — FAIR REPRESENTATION — UNFAIR LABOR PRACTICE.
A breach of the duty of fair representation by a union is an unfair labor practice under the public employment relations act; the Michigan Employment Relations Commission has exclusive jurisdiction to determine claims of unfair representation by public employees, and the procedures of the act are adequate to fully resolve such claims (
Hurwitz, Karp, Hirschman & Wallach (by Martin Hirschman) for the plaintiff.
Law Offices of Howard & Guido (by Barry L. Howard) for defendant Police Officers Association of Michigan.
Amicus Curiae:
Hiller, Larky & Hoekenga (by Daniel J. Hoekenga) for Michigan Education Association/NEA.
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
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.
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 “accel-
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.
III
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
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 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
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 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,
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:
[I]t 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.
A
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
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
B
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 representation 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
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
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, “[W]hen 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 plaintiff‘s 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, “[w]hen 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 U.S. 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 U.S. 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.
RILEY, J. (dissenting).
I
We dissent from the majority holding that the circuit court has concurrent jurisdiction with the MERC of public employees’ fair representation claims. The Court reaches that conclusion by noting that the
Public employee labor relations in Michigan are governed by the
AN ACT to prohibit strikes by certain public employees; to provide review from disciplinary action with respect thereto; to provide for the mediation of grievances and the holding of elections; to declare and protect the rights and privileges of public employees; and to prescribe means of enforcement and penalties for the violation of the provisions of this act. [Emphasis added.]
Thus, the Legislature has, through the
Bearing in mind this Court‘s consistent construction of the
A
Section 16 of the
One of the practices proscribed in § 10,
(3) It shall be unlawful for a labor organization or its agents (a) to restrain or coerce: (i) public employees in the exercise of the rights guaranteed in section 9: Provided, That this subdivision shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of membership therein.
The rights guaranteed in
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.
Defendant in the instant case argues, and we agree, that a union‘s breach of the duty of fair representation is an unfair labor practice under
The majority suggests that the following statement in Goolsby, supra, 665, n 6, indicates that
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.
Since the issue of jurisdiction over fair representation claims was not before us in Goolsby, the statement was dictum and was not intended as an absolute ruling on the jurisdictional issue.
B
As the majority correctly notes, the NLRB has exclusive jurisdiction over most unfair labor practices. In Vaca v. Sipes, 386 U.S. 171, 188; 87 S. Ct. 903; 17 L. Ed. 2d 842 (1967), a closely divided United States Supreme Court held, however, that courts have concurrent jurisdiction of fair representation actions even though the conduct complained of is arguably subject to the
The majority suggests that because Michigan courts had similarly recognized the right of fair representation in cases arising under the
We do not dispute that the substantive doctrine was judicially developed. It must be remembered, however, that the doctrine has always been grounded upon a union‘s statutorily imposed duty conferring its right to act as the exclusive bargaining agent.5 Until the enactment of the
First, even prior to the enactment of
The Legislature is presumed to act with some knowledge of existing laws and decisions. Scholten v. Rhoades, 67 Mich. App. 736; 242 N.W.2d 509 (1976). We suggest that these points indicate that the Legislature chose to depart from the federal scheme as to procedure and not carve out an exception to the
Another reason cited by the Vaca Court and by the majority here for allowing concurrent jurisdiction was an alleged lack of agency expertise in fair representation cases. The Court thus distinguished fair representation actions from other unfair labor practice actions, in which agency expertise is a main justification for affording the agency exclusive jurisdiction. We disagree for two reasons.
First, it does not necessarily follow that courts
More importantly, we believe that fair representation actions are precisely that type of matter within the scope of the MERC‘s expertise. This Court has acknowledged the MERC‘s “special expertise in statutory unfair labor practice matters.” Detroit Fire Fighters Ass‘n v. Detroit, 408 Mich. 663, 684; 293 N.W.2d 278 (1980), see also Rockwell, supra, 630. And, while the Vaca Court opined that the relationship between the union and the individual employee was “merely peripheral,” we conclude, rather, that this relationship is essential to the effective administration of the
Another reason for concurrent jurisdiction advanced in Vaca dealt with the concern that some fair representation claims might go unredressed if the NLRB was given exclusive jurisdiction. This could happen, the Court noted, because the NLRB‘s general counsel has unreviewable discretion in choosing to institute an unfair labor practice complaint.
The procedure under the
[The
PERA directs] that “[a]ny proceeding” relating to statutory unfair labor practice charges “shall be conducted pursuant to chapter 4 of [the Michigan Administrative Procedures Act]“,MCL 423.216(a) ; MSA 17.455(16)(a); and . . . [requires] that MERC make findings of fact in resolving unfair practices complaints, and that MERC‘s decisions be reviewable as a matter of right in the Court ofAppeals under the competent, material, and substantial evidence standard.8 MCL 423.216(d) ,423.216(e) ; MSA 17.455(16)(d), 17.455(16)(e).
Despite this safeguard under the
Thus, we conclude that there is no reason to believe that the MERC will not give an employee‘s fair representation claim its due consideration. Further, we believe that the procedures of the
Finally, the majority adopts the Vaca Court‘s
C
It is true that under our approach only public employees would be restricted to the agency forum for resolution of the one class of unfair labor practice claims at issue in the instant case. We would emphasize, however, that the bulk of unfair labor practice actions in both the public and private sectors are subject to exclusive agency jurisdiction. Further, the
We conclude that the MERC has exclusive jurisdiction of plaintiff‘s claim against his union.
II
In our order granting leave to appeal, we directed the parties to address the issue whether the
Prior to recognition of the duty of fair representation, the principal control on unions was political, i.e., dissatisfied members could replace their union by vote.8
The duty of fair representation was first recognized in Steele v. Louisville & N R Co, 323 U.S. 192; 65 S. Ct. 226; 89 L. Ed. 173 (1944), and Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210; 65 S. Ct. 235; 89 L. Ed. 187 (1944), a pair of cases involving alleged racial discrimination by unions certified as exclusive bargaining agents under the
Not long after, the Court held that the provisions of the
In Michigan, public employees are governed by the public employment relations act (
This Court recently held that the ”
In the instant case, the Court of Appeals wrote:
In Michigan, a public employee‘s union is granted the same power of exclusive representation by
§ 11 of PERA ,MCL 423.211 ; MSA 17.455(11), as is granted unions in the private sector by§ 9 of the NLRA . As in the private sector, the power of exclusive representation implies the duty to represent fairly. [Citation omitted.] . . . We think that, for public employees, the existence of the right to fair representation must be implied from the grant to unions of exclusive bargaining rights. [Demings v. City of Ecorse, 127 Mich. App. 608, 616-617; 339 N.W.2d 498 (1983).]
We have no quarrel with this conclusion.
The rights enforced by a fair representation suit are not just rights granted by
PERA ; they are rights arising from the law of contract. WhilePERA allowed public employers and employees to enter into relationships which gave rise to the right of fair representation, it was the fiduciary or agency relationship and not the statute which gave rise to the duty. Independent of anything inPERA , the right to fair representation exists whenever public employees are represented by an exclusive bargaining agent. We conclude that the rights enforced in a fair representation suit are common-law rights . . . . [Demings, supra, 621.]
It is with this conclusion that we disagree. The parties and the Court of Appeals agree that the duty of fair representation arises because of the aspect of the relationship between the union and its members which allows the union to be the exclusive representative of its members. They further agree that the union‘s right to act as the exclusive representative is conferred by statute. Beyond this, their arguments diverge.
Plaintiff and the Court of Appeals essentially claim that the fact that the source of the union‘s right to function as the exclusive representative is statutory is irrelevant to the determination of the source of the members’ corollary right to fair representation. In plaintiff‘s words:
If a union‘s position as exclusive representative arose merely by contract or practice rather than by statute, the rationale for imposing the duty of fair representation would be the same.
Defendant, on the other hand, argues that the determination of the source of the duty is inextri-
The problem with plaintiff‘s argument is that the union‘s right to act as the exclusive representative is not created by contract or by practice, but, rather, is made possible by
It might be argued that there is a significant difference between the union‘s duty of fair representation in contract negotiation and matters of contract administration such as grievance processing. That is, the union‘s right to act as the exclusive representative in bargaining is expressly granted by statute in both the public,
These statutes provide:
(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided [emphasis in original], That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect [emphasis added]: Provided further, [emphasis in original], That the bargaining representative has been given opportunity to be present at such adjustment. [ 29 USC 159(a) .]Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer: Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment. [Emphasis added.
MCL 423.211 ; MSA 17.455(11).]
Nevertheless, unions typically assert in collective bargaining agreements the exclusive power in the grievance realm.9 Thus, the argument continues, this power of the unions to control the grievance procedure derives not from any statute, but from the collective agreement. Proponents of this theory10 assert that the source of the duty of fair representation in this context is found in general contract law principles, e.g., agent-principal, fiduciary-beneficiary.
This conclusion was based on the Court‘s adoption of Professor Cox‘s view that, in spite of the language of
Similarly, the Michigan Court of Appeals, in Mellon v. Fitzgerald Bd of Ed, 22 Mich. App. 218; 177 N.W.2d 187 (1970), interpreted
Moreover, the relationship between unions and their members is not a true agency or fiduciary one. This Court addressed the nature of that relationship in the context of grievance processing in Lowe v. Hotel & Restaurant Employees Union, 389 Mich. 123, 145-146; 205 N.W.2d 167 (1973):
In many ways, the relationship between a union
and its member is a fiduciary one. Certainly, it is a relationship of fidelity, of faith, of trust, and of confidence. If the courts have stopped short of declaring the union and member relationship a fully fiduciary one, it is because the union, by its nature, has a divided loyalty.
It must be faithful to each member, to be sure, but it must be faithful to all of the members at one and the same time.
The union must be concerned for the common good of the entire membership. This is its first duty.
That duty of concern for the good of the total membership may sometimes conflict with the needs, the desires, even the rights of an individual member.
When the general good conflicts with the needs or desires of an individual member, the discretion of the union to choose the former is paramount.
When the general good conflicts with the legal or civil rights of an individual member, the courts will recognize those rights and enforce them as against the will of the majority of the union membership.
In the area of grievances, the courts have held that the union has considerable discretion to decide which grievances shall be pressed and which shall be settled. It has been said that the union has latitude to investigate claimed grievances by members against their employers, and has the power to abandon frivolous claims. Vaca v. Sipes, 386 U.S. 171; 87 S. Ct. 903; 17 L. Ed. 2d 842 (1967).
It has been held that an individual member does not have the right to demand that his grievance be pressed to arbitration, and the union “obviously” is not required to carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit. Gunkel v. Garvey, 45 Misc. 2d 435; 256 N.Y.S.2d 953 (1964).
Having regard for the good of the general membership, the union is vested with discretion which
permits it to weigh the burden upon contractual grievance machinery, the amount at stake, the likelihood of success, the cost, even the desirability of winning the award, against those considerations which affect the membership as a whole.
Therefore, we conclude that a union‘s duty to fairly represent employees in grievance processing is implied from its statutorily granted power to act as the exclusive employee representative.
III
We agree with the majority that the exclusion of plaintiff from the arbitration hearing did not, as a matter of law, constitute a violation of his right to fair representation.
CONCLUSION
We would hold that: (1) the MERC has exclusive jurisdiction of public employees’ fair representation claims; (2) the duty of fair representation is statutorily derived; and (3) the exclusion of plaintiff from the arbitration hearing did not, as a matter of law, violate plaintiff‘s right to fair representation.
Inasmuch as we believe that the MERC has exclusive jurisdiction of plaintiff‘s claim against the defendant union, we would reverse the decision of the Court of Appeals. Therefore, we respectfully dissent.
CAVANAGH and BOYLE, JJ., concurred with RILEY, J.
Notes
“Congress itself has carved out exceptions to the Board‘s exclusive jurisdiction: Section 303 of theUnlike the federal scheme, the Legislature has not created similar exceptions in theLabor Management Relations Act, 1947 , 61 Stat 158,29 USC § 187 , expressly permits anyone injured by a violation ofNLRA § 8(b)(4) to recover damages in a federal court even though such unfair labor practices are also remediable by the Board; § 301 of that Act, 61 Stat 156,29 USC § 185 , permits suits for breach of a collective bargaining agreement regardless of whether the particular breach is also an unfair labor practice within the jurisdiction of the Board (see Smith v. Evening News Ass‘n, 371 U.S. 195 [83 S. Ct. 267; 9 L. Ed. 2d 246 (1962)]). . . .” Vaca, supra, 179-180.