*1 443 Mich v GIBRALTAR DISTRICT GIBRALTAR SCHOOL MESPA-TRANSPORTATION 7). (Calendar 12, Argued January No. Decided Docket No. 92723. 20, August 1993. Association, Support Michigan Personnel Education transportation represent custo- newly and certified had been employees School Dis- of the Gibraltar maintenance dial and district, charges against trict, practice labor filed unfair previous, grievances under claiming that its refusal to arbitrate agree- parties negotiated successor expired contracts while ments, and were effected without notice were unilateral actions public employ- statutory duty under the of its contravention respect bargain good faith with ment relations act hours, employment. A wages, conditions of other terms and and charges, finding that the associa- hearing referee dismissed previous standing charges because the to file the tion had no expired certified as the the association was had before contracts present representative, employees’ bargaining and that no by obligation to arbitrate past was owed the district contractual Michigan Employment grievances. Relations Commis- Wahls, P.J., Appeals, and Doctoroff sion affirmed. The Court JJ., opinion unpublished in an Allen, Jr., S. affirmed and G. curiam, agreements finding expired per had never by formally the school extended been obligation newly certi- with the had no contractual district (Docket grievances to arbitration union to submit fied 116964). appeals. The association No. by joined Brickley, opinion Boyle, Justices Justice In an Supreme Griffin, Court held: Riley, public employment create a statu- relations act does not arising grievances tory duty after the to arbitrate grievances bargaining agreement, in this a collective References 1787, 1790, 1838, 2d, Relations Labor and Labor §§ Am Jur 1842, 1844. Award; Employ- Labor and under Arbitration and ALR Index See Employees. ment; Public Officers and Dist v 1993] previous case did not accrue or vest under the collective bar- gaining agreement. 1. Grievances that arise after certification of a new union depend pera, expired for resolution on the not the mespa *2 bargaining agreement. Thus, standing the had to assert statutory practice charge. a However, violation and file an unfair labor pera, statutory duty under the there is no to arbi- expiration bargaining agreement. trate after of a collective Any rights to arbitrate under the arbitration clause of an 2. expired agreement parties otherwise are those that the in- beyond expiration tended should last date or that accrue or during agreement. case, vest the term of the In this there was showing parties no that intended arbitration to survive date, beyond expiration argued its and it was not grievances had accrued or vested. Affirmed. Cavanagh, joined by Chief Justice Justices Levin concurring Mallett, part dissenting part, in stated that a provision expiration contractual for arbitration survives the bargaining agreement a collective as a term and condition of pera. employment compels under the The a em- ployer bargain collectively employees’ representa- with its good respect mandatory subjects
tives faith with bargaining. party may regarding Neither take unilateral action mandatory subject case, impasse. absent In this there was no impasse extinguished at the time the district the arbitration procedure, mandatory subject bargaining. employees’ public employees compels rejection prece- status as of federal interpreting private employees. dent the nlra and its effect on unilaterally changed pro- Because the district the arbitration reaching impasse negotiations newly cess before an with the pera. union, certified it violated the — Employment — 1. Labor Relations Arbitration Public Bargaining Expired — — Relations Act Collective Contracts. public employment relations act does not create a duty grievances arising expiration to arbitrate after the of a bargaining agreement. collective — — Bargaining — 2. Labor Relations Arbitration Collective Expired Contracts. Any rights to arbitrate under the arbitration clause of an other- expired agreement
wise are those that intended beyond expiration should last date or that accrue or vest during agreement. the term of the Mich op Opinion the Court Akhtar) plain- Hodgman (by for Jamil Cox & tiff. Zuschlag,
Amberg, McNenly, Lee, Firestone & Amberg Joseph (by H. Fire- Steven J. P.C. stone), defendants. presented question an is whether J. Boyle, agree- bargaining clause of a collective arbitration expiration date of ment survives agreement bargaining it. created We are favoring strong precedent persuaded by arbi- being an as consensual tration of a collective does survive arbitrate statutorily or condi- as a term public employment contract under tion of griev- obligation to arbitrate act. The relations encompasses grievances postcontract involv- ances *3 rights ing employee under the that accrue or vest parties contract, pressly provided in which the ex- or situations beyond the term of for arbitration agreement. Appeals. of the Court of affirm decision We I employees, transportation The Gibraltar school employ- as its custodial and maintenance as well represented previously ees, were by the American Federa- with the school district Employees. Municipal County State, tion of griev- four-step contained a unit’s contract Each step procedure the final with arbitration as ance "[a]ny grievance dispute may or resolve concerning applica- parties arise between agree- meaning interpretation” tion, School Dist v 1993] Opinion of the Court Although ment.1 each contract contained a broad clause,2 automatic renewal neither included specific language providing for survival of arbitra- expired. tion the event the entire contract 7, Agreement, p AFSCME Custodial and Maintenance art 4 and Transportation Agreement, pressly recognized VII, 1, p agreements art 4. The § ex parties the sole to the contracts were the afscme, Board of Education of the Gibraltar School District and bargaining representative employees. exclusive for the Each contract provided complete agreement also with prevail during that it was the between the respect to all terms and conditions of that would parties. the term of the between the 34, 1, Agreement, pp AFSCME Custodial and Maintenance arts 1 and 23; pp Transportation XXXVI, Agreement, AFSCME I Workers arts 1, 26. 35, Agreement, The AFSCME Custodial and Maintenance art Agreement,” provided: labeled "Termination of Agreement This shall remain in full force and effect until 30, automatically year
June year, 1985. It shall be renewed from party notify party, unless either shall days prior the other writ- (90) ing, ninety 30, at least to June 1985 that modify Agreement. desires to revise or such notice is sixty this In the event that given, negotiations begin shall not later than (60) days prior anniversa[r]y to the date. Agreement This shall remain in full force and be in effect during tion of this manner set forth in the period negotiations and until notice of termina- Agreement provided party to the other in the following paragraph: party In the event that either desires to terminate this Agreement, less than ten given party written notice must be the other (10) date, days prior to the desired termination anniversa[r]y which shall not be before the date set forth in the preceding paragraph. [Emphasis added.] provision contract, XXXVII, transportation A in the afscme art However, language. contained similar automatic renewal it did not provide stay during period negotiations: for a of termination Agreement This shall in full continue force and effect until party June this termination 1984. If either desires terminate or amend (90) Agreement, ninety days prior it shall to the above *4 date, give written notice termination or amend- of notice, party give giving party ment. If neither shall or if each prior notice of termination or to the in effect from termination or amendment written notice withdraws the amendment same date, Agreement termination above this shall continue year year subject thereafter to notice of (90) by party ninety days either on prior to current termination date. 443 Opinion the Court of expired transportation 30, June on unit’s contract unit’s and maintenance and the custodial Although 30, 1985. on June contract terminated the con- evidence that record is void of the by contracts’ virtue of the were renewed tracts logical provisions, we make the renewal automatic inference quent ing agent light they not, in the subse- of were bargain- of a new election and certification units.3 for both labor Michigan Support As- Personnel Education Employ- Michigan petitioned the sociation (mespa) recognition as the for ment Relations Commission prohibits commission act relations conducting certifying bargaining agent when an a from valid MCL recognition election or act, bargaining agreement exists. of collective Section 423.212(b); 17.455(12)(b), petition provides MSA that when bargaining representation commission: is filed with the and, petition investigate has if it The commission shall question representation that a reasonable cause believe
exists, provide hearing appropriate notice. If after due shall an hearing upon finds record of that such commission the a secret this section shall be construed to hearings by exists, representation question election shall direct an Nothing certify in the results ballot and shall thereof. prohibit waiving of stipulation purpose of a consent election for the conformity with the the commission. rules of act, 17.455(14), 423.214; provides part: Section 14 of MCL any bargaining unit or election shall be directed An not thereof there is in effect a valid subdivision where force and bargaining agreement prematurely which was not collective extended agreement A and which fixed duration. is of upon petition shall not bar an election years persons more have not thereto where than renewal, agreement’s timely elapsed execution or last since later. whichever was above, the will not an election while a As noted commission conduct addition, bargaining agreement is in testi- valid collective mony force. In hearing school district before the officer revealed both the newly agreed that contracts had certified union the afscme and expired working employees For and that the were without contracts. mespa’s reasons, though reject outright that even we contention these expired, were all of the terms and conditions were the contracts provisions. by virtue of contracts’ automatic renewal terminated *5 1993] Dist v Opinion the Court agent bargaining units. both labor exclusive mespa prevailed in an the afscme over August certified 26, 1985, and was consent election representative by the sole as the merc Negotiations September for new con- 9, 1985. on mespa the district and the school tracts between According following day. began the union’s the representative representative, the school district’s they verbally the would "extend them that assured parties despite ac- that both contracts,” knowledged the fact expired had the afscme contracts working currently without units were and both contracts.4 18, 1985, district offered the school
On October mespa four- that included a contract a written procedure step grievance arbitration as with step. provision on was conditioned final At that clause. a no-strike union’s griev- proposed an interim time, the school district procedure contain arbitration. that did not ance plan, objected mespa the interim After proposal and indicated its district withdrew school procedure grievance estab- to the it would adhere expired contract, under lished afscme step. exception as a final of arbitration reaching impasse negotiate without continued agree- Ultimately, bargaining. subject on Williamson, superintendent of the school Conversely, Mr. Michael testified: district Mespa recognized a need to continue union. was a new We individual, provided in an rights as to the that adhered
those agreement however, union; negotiated it was the with another dealing new employer with a position union, that we were to be rights union needed adhered to the negotiated anew. recognized questioned specifically the school district whether When mespa continuing as an existing to exist previously contracts as "Absolutely an contract, replied, not. That was Mr. Williamson afscme contract.” 443 Mich op Opinion the Court the con- units were reached and merits for both School Board on tracts ratified the Gibraltar 14, 1986. October grievances Meanwhile, filed several mespa during period district between
with the school Citing February 24, 1985, 1986. October provisions *6 expired contract, the of the afscme concerning grievances alleged run bus violations working assignments, payment runs, hours, for changes, layover payment time, schedule out- for bargaining employees performing work, unit side and the Unable bargaining position. assignment of a unit processing* to resolution after the achieve grievances through steps of the the initial three procedure, the union filed a demand for afscme the American Arbitration Associ- arbitration with ation, claiming right pursuant arbitration, to a to expired the refused the demands no current parties granting contract.5 The school district afscme stating arbitration, for that
labor contract existed between the party
the association or third authority process It the to such demands. also complained provisions that the written arbitration attached to the union’s arbitration demands were excerpts expired from the contract to afscme party. which the the the issue was not a Arbitration of of mespa grievances pending stayed was resolution right of the to arbitration itself. February May 13, 1986, 20 and On mespa practice charges against filed unfair school district ployment labor
pursuant § to 10 of the em- act, amended, 1965 PA relations as mespa completed the association’s arbitration demand forms indicating party that it was "a to an arbitration contained arbitration, providing in a written contract” for and attached the portions expired appears relevant had afscme contract. It the union difficulty determining purport the date of written contract edly relying variety was on because it listed a of dates on the forms, "1982,” 1986,” "1985-1986,” arbitration "ending such as "to demand 1986,” "continuing.” 1993] School Dist v Opinion of the Court 17.455(10). Specifically, 423.210; MSA MCL agreement, parties, by had that the claimed union agreed "mutually working to the last under been agreement, bargaining dated engage[d] February 9, 1982, while agreement.” negotiations mespa charged successor for a to refusal the school district’s that grievances "with- actions unilateral were arbitrate in contravention effectuated and were out notice bargain duty under its good respect Charging Party with faith wages, and conditions terms hours and other continuing effort constitute^] a District] to undermine [the Gibraltar representative mespa] as [the status represented by employees [the mespa].” hearing charges consolidated were hearing who found referee conducted before charges. standing mespa He file the no had employer mespa’s theory rejected obligation arbitrate, repudiated its contractual *7 by had ex- terms, the contract because, its own employ- pired the certified as the union was before present Finding representative. bargaining no ees’ or school the by obligation the past owed to be contractual grievances issue, at the to arbitrate district charges. hearing the referee dismissed findings hearing upheld referee’s merc order. dismissal right mespa appealed Court of in as of unpublished per
Appeals,
in an
affirmed
(Docket
opinion,
.17, decided October
curiam
No.
116964).
expired
found that
The Court
by
formally
agreements
extended
never
were
no contrac-
district had
that the school
newly
obligation
union to
certified
tual
grievances
arbitration.
to
submit
(1992).
appeal.
granted
II A turning Before case, to the central issue this briefly mespa we deal lacked sions of the with the contention that the
standing provi- to enforce the arbitration
expired contract. We conclude that inappropriate such a contention is for the issue of statutory obligation the text, In arbitrate. this con-
"standing” authority newly refers to the of a litigate rights originally acquired certified union to predecessor usually union, under a collec- bargaining agreement tive or because of actions or relating predecessor omissions to the union’s sta- bargaining representative tus as collective unit. In this of the charging parties case, were certi- expiration bargain- fied after the ing agreements. During of the collective period,
this the terms and conditions of are continued because of obligation statutory bargain, the Officers Detroit Police Detroit, Ass’n v 54-55; (1974). NW2d 803 Grievances that arise after certi- depend statutory fication of the new union on the obligation, expired agreement. Any question concerning authority newly rights certified union to enforce granted by expired agreement is irrelevant. reject mespa Thus, we the claim that the does not standing have to claim a violation practice charge. file an unfair labor
B
question posed
The central
is the extent
bargain-
which an arbitration clause of a collective
ing agreement
survives the
date of a
*8
bargaining agreement.
collective
recently
This issue was
Supreme
addressed
the United States
private
disputes
Court
in the context of
sector
Dist 335
1993]
v
Opinion
Court
Act, 29 USC
Relations
under the National Labor
Printing
seq.;
NLRB,
Div v
151 et
501 US
Litton Financial
(1991).
2215;
S
115 L Ed 2d
190;
111 Ct
Michigan’s public
long recognized that
have
We
seq.;
act,
423.201
MCL
et
relations
17.455(1)
seq.,
on
et
is modeled
nlra.
prece-
Although
controlling, we
to federal
look
guidance
developed
in our
under the nlra
for
dent
interpretation
Michigan
Univ
Central
pera,
Michigan
Faculty
Univ, 404 Mich
Ass’n v Central
(1978);
Police
268;
Pontiac
Officers
273 NW2d
(After Remand),
674;
v Pontiac
Ass’n
(1976);
v
Detroit Police Officers Ass’n
NW2d 831
appropriate
supra
Detroit,
Thus, Litton
an
at 53.
begin
inquiry.
place to
our
bargaining
expired
Litton,
In
grievance proce-
agreement
two-step
contained a
During
step.
as the final
dure with arbitration
consulting
contracts, and
hiatus between
without
portion
employer
union,
of its
eliminated
operations
The union de-
off workers.
and laid
grievance procedures and arbitration con-
manded
cerning
layoffs pursuant
of its
to the terms
employer
prior
employer. The
with the
contract
grievances.
process
refused to
arbitrate
charge
upheld
of an unfair labor
the union’s
nlrb
procedures
grievance
practice
and ordered
Supreme
granted
Court
the em-
arbitration.
right
ployer’s petition
to the
limited
issue
Kennedy’s opin-
postcontract.6 Justice
arbitration
two sources
for the Court differentiates
ion
obligation
employer
imposing
on an
arbitrate
an
arising
dispute
date of one
after the
a
collective
but before
finding that Litton commit-
not address the nlrb’s
Court did
practice by
abandonment of the
its unilateral
ted an unfair
labor
any postexpiration
repudiation
grievance process and
wholesale
employer
obligations
raise
did not
the issue
because the
arbitration
Litton,
petition
appeal.
that an
if,
practice
commits an unfair labor
bargaining
impasse,
without
to
it effects a uni-
change
existing
lateral
employment.
of an
term or condition of
Katz,
736;
See NLRB v
369 US
82 S
(1962).
1107;
Ct
tract, incorporating any agreement ordinance or resolution requested by party, obligation reached if not either but such does compel party agree proposal require either to a making of a concession. Dist 1993] v op Opinion the Court See, e.g., completed. yet one be on a new have v Ad- Trust Fund Health and Welfare Laborers Co, 539, Lightweight Concrete 484 US vanced (1988). [Litton, 830; L 6;n Ct 98 Ed 2d 108 S Ct 111 S 2221.]
Among mandatory subjects of including grievance arbitration, resolution, United of Amer Co v Int’l Woodworkers Gypsum States *10 (1951).9 112, the nlrb CIO, NLRB 131 While ica, 94 mandatory subjects of bar that most has ruled gaining rule, created it has are within Katz among grievance exceptions, is arbi which several tration, Hilton-Davis Chemical Co v Int’l Chemical (1970). Union, 185 241 NLRB Workers signifi- Supreme Court, with
The United States interpretation of the the nlrb’s cant deference to this Court likewise extended nlra, quoted from Hilton-Davis and summarized merc,10 as follows: clauses Board determined that arbitration [T]he prohibition unilateral from the on
are excluded to arbi- changes, reasoning that the commitment right of final "voluntary surrender of trate is a to the Congress . . . reserved which decision parties. sual surrender is, bottom, consen- . . at . [Arbitration power which the economic free to utilize.” [Hilton- are otherwise upon our The Board further relied at 242. Davis] labor acknowledging the basic federal statements law matter of contract is a
policy
"arbitration
to arbi-
required
be
submit
party
and a
cannot
9
grievance procedures
similarly
jurisdiction
deemed
This
has
Ottawa Co v
bargaining.
mandatory subjects
See
as
arbitration
(1985);
Jaklinski,
Pontiac Police Officers
1;
423 Mich
tration
he has not
so to
submit.” United
v
Steelworkers
America War-
Co,
574,
Navigation
582;
rior
& Gulf
US
80 S
(1960).
1347; L
Ct
Ed
2d 1409
See also
USC
173(d) (phrased
parties’ agreed upon
terms
dispute
existing
method of
resolution under an
agreement.)
[Litton,
Chemical
both rational and consistent with
grounded
strong
the Act. The rule
statu-
tory principle,
found in
language
both the
drafting history,
its
of consensual rather
nlra
compulsory
than
arbitration. See Indiana & Michi-
gan
1392,
Co v
Union
Local
No
Int’l
[Electric
Workers,
Brotherhood of Electrical
284 NLRB
(1987)];
Co,
57-58
supra.
Hilton-Davis Chemical
The rule
our
conforms with
statement
"[n]o
obligation to
dispute
arbitrate a labor
solely
arises
*11
by operation of
compels
party
law. The law
a
to
grievance
submit his
only
to arbitration
if he has
to
Gateway
contracted
do so.”
v
Coal Co Mine
Workers,
368, 374;
629;
414 US
94 S
L
Ct
38 Ed 2d
(1974).
583
We
today
reaffirm
that under the nlra
consent,
is a
arbitration
matter of
it
and that
will
not
imposed upon parties
be
beyond
scope
of
agreement.
their
In
binding
the absence of a
method for resolu-
tion
relegated
postexpiration
disputes,
of
party may
a
be
filing
practice
to
labor
charges
unfair
Board if
that
counterpart
believes
its
11
Stevens, joined by
Justices Marshall and
Justices Blackmun and
Scalia,
agreed
in
majority
dissented
Litton but all
with the
that
there
statutory right
Litton,
disputes.
was no
to arbitrate labor
See
111 S Ct
2231,
(Marshall, J.,
(Stevens,
dissenting),
J.,
n 4
and
1993]
op
Opinion
the Court
change in
implemented a
violation
has
unilateral
If,
urges, parties who
as the
of the nlra.
favor labor arbitration
tract
putes,
Union
during the term a con-
of
postexpiration dis-
also
it to
desire
resolve
arrangement
that
parties
can
to
consent
Further,
a
explicit agreement.
collective-
as to
bargaining agreement might be drafted so
expiration
the old
of
eliminate
hiatus between
agreement,
the new
to remain
and execution of
bargain
impasse.
parties
in effect until
impose
that
suggestion
Unlike
Union’s
we
upon
disputes
parties
postexpiration
of
arbitration
once
disputes arising under
they agree to arbitrate
contract,
that
alternatives would reinforce
a
statutory
these
compulsory.
not
that
policy
arbitration
[Litton,
Recognizing our historical inclination to be fa- vorably by apply- influenced decisions of the merc ing persuasive and the force of federal pera, authority applying appellants seek to nlra, distinguish present private the circumstances employment public They from those of the sector. contend: private While is true that in the sector both
parties are power, free to utilize economic such a public balance does not exist employment Michigan. law, Under federal arbitration is consid- quid pro quo ered the for an strike.
Michigan public employees legal right have no strike, even after of a collective agreement, 423.202; MCL 17.455(2). acknowledge While truism, we this we persuaded are both the structure of the statute and the realities of sector the merc’s conclusion is correct. power
First,
the consideration of the
to strike
*13
341
Dist v 1993] School
Opinion of the Court
Hilton-
Litton’s
to
not the basis for
adherence
was
Rather,
influenced
the Court was
Chemical.
Davis
strong
principle,
hy
in both
found
"the
drafting history,
language
and its
the
nlra
compulsory arbitration.”
consensual rather than
of
nature of
Litton, 111 S
The consensual
Ct 2222.
important
grievance
this
arbitration is no less
explained:
Riley
state, as Justice
has
legal
policy
judicial
of
underlying
basis
[the]
reviewing
arbitra-
the merits of an
deference [in
grounded
is
in contract:
the contrac-
tion award]
accept
the
and to
tual
to arbitrate
binding.”
and
Labor
decision as "final
arbitral
therefore,
contract, and,
is a
of
product
arbitration
upon
legal
entirely
particular
depends
basis
its
particular
parties.
con-
of
Arbitration
contracts
terms,
according
may vary,
specific
to their
tracts
final and
scope of
to
in the
the matters entrusted
arbitration,
authority
binding
in the
and
arbitral
mat-
disputes concerning such
to
conferred
resolve
authority to
jurisdiction
An
ters.
arbitrator’s
concerning
appro-
particular dispute
resolve a
priate
interpretation
of a collective
exclusively from the contrac-
agreement derives
pos-
parties; an
agreement of the
arbitrator
tual
mat-
general
to resolve such
jurisdiction
no
sesses
ters
independent
the arbitration contract.
of
[Port
Ass’n,
Area
Dist v Port Huron Ed
Huron
(1986).]
150-151; 393
Mich
NW2d 811
power
Second,
to strike
Hilton-Davis
consideration
only
rationales in
one of three
was
supra.
the consen-
Chemical,
other two
were
right
final
and "the
nature
arbitration
sual
par-
Congress
[the]
.
. .
reserved to
which
decision
of both
242.
essential nature
Id. at
ties.”
only
provide
is that
acts
nlra
agree-
might
process by
reach
proposal
power
agree
remains
ment,
to a
Opinion op the Court
17.455(15),
party,
423.215;
with each
MCL
MSA
USC
158(a)(5)
(d).13
Legisla-
Additionally,
importantly,
and most
expi-
when,
ture has made the determination
after
bargaining agreement, public
ration of a collective
right
employees’ lack of the
an
strike creates
power
public
contrary
imbalance of
interest. It determined that an imbalance affected
only
types
safety employees,
certain
gave
right
whom it
interest arbitration
17.455(33).
312;
423.233;
1969 PA
MCL
It
*14
appears
Legislature
thus
that
did not believe
purported
public
in
that a
imbalance
other
sector
required
adjustment. The dissent’s
suggestion
acknowledge
that we have failed to
that
supplements
Act 312
is thus wide of the
pera
dispute
acknowledge
mark. We do not
or fail to
purpose
Rather,
of Act 312.
we draw the
Legislature
inference that the
did not intend arbi-
part
tration to be
of the
contract from
danger
the fact
strikes
it concluded that
of
required only
response
a limited
not ex-
public employees
general.
tended to
in
Turning
general public
to the context of
sector
employment,
negotiating
while the balance of
power
private sector,
is different than in the
we
implication
reject
public employees
are as
disadvantaged by
charging
the differences as the
Ass’n, supra
683,
See also Pontiac Police Officers
at
where Justice
obligate
public employer
Levin observed that
agree
"does not
to
grievance
disciplinary procedures proposed by
to
or
the union.
simply obligates
public employer
bargain
good
It
regarding
in
faith
procedures.”
such
Moreover,
Rapids
Rapids Lodge
in Grand
v Grand
No
Fraternal
Police,
628, 637;
(1982),
Order of
415 Mich
Nor go resolving grievances. to the can Grievances negotia- during resolved table be *15 retroactivity perhaps by in the clause tions, suggested agreement.14 instances, as In some new pursued might grievance as be Litton, itself in practice labor charge._ an unfair 14 case, representative hearing present union in the At the merc with the union refused to meet district never the school testified to discuss grievances at the grievances were discussed that all period. during negotiation point other table or at some processing of filed discussions continual The school district’s grievances supports sought school district inference that practice. Int’l Brotherhood committing See an unfair labor avoid America, Helpers Chauffeurs, Local Teamsters, & Warehousemen (CA 6, Bottlers, F2d Pepsi-Cola General 1199 v Union AFL-CIO, CLC v Wells 1992); Paperworkers Int’l Union United 1987). (CA 7, Industries, Inc, 701, 704-705 Badger 835 F2d 443 Opinion op the Court public public employer’s situation, like the private employee’s, from that of the is .different public employer frequently employer. sector private counterpart has less control than its sector public employer expenses. over its income and approve dependent on the electorate to new frequently from This results in a revenues taxes. public employer and its situation aligned proposing employees find themselves supporting requests ap- and prove to the electorate to millages. salutary effect
additional tax One public em- of these alliances is that the affected ployers employee in- unions have additional negotiate mutually satisfactory resolu- centive grievances. postexpiration tions to despite prohibits Finally, the fact that the by public employees, 423.202; strikes MCL 17.455(2), candid if we would be less than we did acknowledge public the real world of employment, public employees occasionally assume power employer’s Thus, the perspective, stringent strike.15 from the securing
there is value in a more agreement contractual with the union prohibiting employees striking during from affording term of the contract while more reme- pro- of that dies breach than those vided pera. summary,
In
while the nature of the
balance
negotiating power
in the
sector is different
private sector,
than that
in the
find
we
no evi-
legislative
dence of
intent
to strike a different
regarding
essentially
balance
arbitration as
con-
agree
charging par-
can
sensual. Nor
we
with the
discourage
clearly
Such
mandates
strikes but.
do not
(2d ed),
prevent
p
Kearney,
them.
Labor Relations in the Public Sector
ninety percent
287. It has been estimated that since 1960 more than
government
level,
place
of all
eight percent
strikes have taken
at the local
percent
at the state level and one
at the federal
level.
Id.
276.
at
*16
Dist v 1993] Opinion
Couet
clearly
public employees are so
disadvan-
that
ties
compel
taged
result.
a different
as
abandoning estab-
are
The accusation that we
wrong.
post, p
simply
precedent,
is
lished
only
impression. The
is one of first
instant case
Michigan authority
point
the decision
on this
Appeals
of merc
and the decision
the Court of
the conclu-
cases,
which reach
and other
all of
this
obligation
to arbi-
there is no
sion that
general
authority relied
Moreover, the
state
trate.
adopt-
Court
decisions of this
the dissent are
on
ing
Michigan.
The dissent
law in
federal
labor
erroneously
Jaklinski, DPOA,
CMU,
and
cites
proposition
Michi-
that established
for the
PPOA
interpreting
pera
gan precedent
exists
interpretations
is there-
reliance on federal labor
inappropriate. However,
that CMU
we note
fore
Borg-Warner Corp,
on NLRB v
and DPOA relied
(1958), and
718;
regarding bargaining. mandatory subjects of expiration of the Therefore arbitration survives collective bargaining agreement statutory as a term of the contract. necessarily
It should be obvious that it does not follow the fact from that arbitration is manda- bargaining, tory subject of that arbitration is one mandatory subjects of those part that is a question contract. That is the presented by syllogism posed case, this and the Thus, it. does not address explanation why the dissent offers no duty im- would eliminate the posed by bargain good pera in to faith over grievances that arise in the absence of a collective bargaining agreement, in favor of resolution third-party arbitrator. syllogism
The dissent buttresses its with refer- "quid” employer ence to the lack of an for the employees "quo,” historically is inaccurate. represents enlightened legislative pera an approach public employment that amended prior public Previously, any employee law. who went on strike was deemed to have abandoned the position and all attendant benefits. Criminal sanc- imposed inciting, influencing, tions ing, were coerc- urging strike, another to MCL 423.201 et 1993] Dist v Opinion the Court 17.455(1) pub- granted seq. seq.; et organize right to insist employees and lic bargain good employers over faith that wages, employment, while hours, conditions prohibition Thus, there retaining if strikes. on power concerning bargain loss of is obliga- public employer’s "quid” strike, good bargain for the in return faith tion prohibition of strikes.16 continued are merc decision Litton decision employers approach. Public this consistent good bargain employees faith about have to grievances no collective there is arise while *18 po- employees bargaining have a against charge practice the unfair labor tential working change condi- employer for unilateral impose pera however, arbitra- not, The does tions. tion, determining merely a of a method is which right, involving dispute on other substantive some process bargaining term of as a contract.
D
obligation to arbitrate
of an
The second source
bargaining
collective
in Litton is the
discussed
agreement
topic
this
case on
seminal
The
itself.
supra.
held
Bros
in Nolde
Bros,
The Court
Nolde
disputes
may
after
that arise
some
there
be
agree-
bargaining
expiration
a collective
of
agree-
granted
rights
under
that involve
ment
Detroit,
428 Mich
Ass’n v
Police Officers
in Detroit
We observed
J.):
(1987)
Boyle,
(opinion
79, 95;
of
In the Court ended at least the initial scope round of the debate on the a fashion identical of Nolde Bros in to our decision in Jaklinski. The Court stated: postexpiration
A grievance can be said to arise only under the contract occurrences that arose before where involves facts and expiration, where an expiration action accrued or under the of 2225. infringes right taken after where, agreement, vested under the principles normal interpretation, contract disputed right contractual survives *19 agreement.[17] the remainder of the S Ct [111 Emphasis added.] charging parties The invite us to "declare that concept rights Jaklinski’s of 'accrued’ or 'vested’ provisions expired agreement extends to all of an 17 may appear listing types postexpira It that the Court is three of believe, disputes. strictly speaking, tion employer only We there is one. The leading dispute action or inaction to the first listed arises expiration. dispute expiration before third The listed arises before the agreement applying dispute. of the clause of the to that v 1993] Dist Opinion of the Court relationship represents core of the be- the parties.” They not, however, do indicate tween the rights to draw line on which are are where the choosing point rights only “core,” found by vested, lower federal courts to be accrued or pensions, days, as vacation health and dis- such seniority. Leaving ability insurance, aside rights types of that would whether these are the given they case, in a we that are be vested note rights subject grievances types of not the to the grievances filed of this case. transportation on behalf the assignment runs,
unit involved working payment payment runs, hours, for for griev- changes. layover time, and schedule the ances filed on behalf of custodial-maintenance out-contracting, to have a unit unit involve failure sponsored event, at a school member attendance assignment position. These involve the of one wages, working hours and traditional areas subjects mandatory words, conditions, in the other ap- bargaining. the to one of of proaches This is identical rejected ap- in Jaklinski we obligation reject proach that we for above. argue charging parties the testi- also that
mony in- their shows witness that agreements the collective tended were throughout negotia- to continue in effect to events that occurred tions. The evidence relates agreement. expiration It does not after show agreements signers any intent agreements provided any terms to last right beyond Thus, date. grievances in this case did not derive arbitrate original agreement manner of in the from may most, At have been a Bros. there Nolde during negotia- temporary side made charges case did not tions, filed this but *20 443 Mich 326 by Dissenting Opinion Cavanagh, J.C. allege agreement any a violation of side and the charging parties exception to the did take hearing agree- referee’s failure to find such an ment. We do not separate agreement contention believe about preserved appellate re- view. charging parties argued have not that
grievances filed meet the "accrued or vested” test Thus, of Litton and Jaklinski. we do not discuss question.18 III We hold that does not create a statu- tory duty expiration grievances arising to arbitrate after the bargaining agreement.
of a collective grievances We also find that filed in this case type were not the that accrued or vested under the previous bargaining agreement. Accord- ingly, Ap- we affirm the decision Court of peals. JJ., concurred
Brickley, Riley, Griffin, J. Boyle, (dissenting). I dissent from the Cavanagh, C.J. majority’s holding "that an to arbitrate bargain- does not survive of a collective ing employment statutorily contract as a term or condition of public employment
under rela- strong precedent tions act” because of "the favor- ing p Ante, arbitration . . . as consensual.” 328. holding Michigan Faculty Our in Central Univ Michigan Univ, Ass’n v Central 277; dissenting opinions, Litton had two each of which contended that rights expira the determination whether the contractual survived the bargaining agreement tion of the collective was a matter to be initially by determined an arbitrator. We need not and do not reach issue this case. Dist v 1993] Dissenting Opinion Cavanagh, C.J. (1978), application compels
273 NW2d *21 mandatory preimpasse to doctrine unilateral bargaining. subjects ais Because arbitration of apply bargaining, mandatory subject I would of preimpasse the case at doctrine to the unilateral bar.
I provision inquiry the contractual whether the con- of survives for arbitration stop, of its an examination with tract does viability Instead, the Court under the contract.1 pera provides whether must also determine support to the arbitration clause. life compels pera em- a 152 of the Section employees’ bargain collectively ployer its to Additionally, representatives. directs a the statute participate public employer in bar- to wages, respect "good gaining to faith with of and conditions hours, other terms and held that . . . .” This Court has employment” are terms and conditions "other " bargain- 'mandatory subjects’ of referred to as ing.” specific subject p Faculty, 277. "Once CMU subject mandatory of bar- as a has gaining, classified been bargain required con- are party may cerning subject, take neither and impasse subject absent an on the unilateral action negotiations.” Id. determining Accordingly, whether when affecting prohibits an estab- action unilateral (1) practice, determine must the Court lished viable, pursuant provision to the ex can remain 1 A contractual (2) terms, (1) agreed contract, parties expressly pired if expira the contract’s accrued before claim vested or the contractual tion. The arbitrate, however, to survive under failed these methods. either of 17.455(15). 423.215; MSA 2 MCL 443 Mich Dissenting Opinion Cavanagh, C.J. practice mandatory whether subject the established is (2) negotiations bargaining, whether impasse. See id. If the Court have reached an concludes that the established
practice is a manda- negotiations tory subject of have impasse, Faculty yet to reach an then CMU directs preimpasse apply the Court change unilateral bar, doctrine.3 In the case at there was not appel- impasse negotiations at the time the an lee extinguished grievance procedure of arbi- only inquiry remaining Thus, tration. mandatory subject is a whether arbitration bargaining. majority jurisdiction "[t]his concedes that grievance procedures similarly has deemed mandatory subjects bargaining. arbitration as See Ottawa Co v 668
Jaklinski,
1; 377
423 Mich
NW2d
(1985);
Pontiac Police
v Pontiac
Officers Ass’n
(After Remand),
674;
397 Mich
II today’s holding, Before this Court has not dimin- 3 Jaklinski, 1, 13; (1985), In Ottawa Co v 423 Mich 377 668 NW2d recognized logical compelled by prior prece- this Court dent. the conclusion reasoning, logically part Under this line of it follows that as duty bargain good joint employers of its to faith the had a duty prior impasse reaching unilaterally to alter the
grievance arbitration mechanism ....
propriety
logical
The Court did not examine the
of the
conclusion
compelled by Michigan
instead,
precedent,
rejected
plaintiffs
it
(1)
plaintiff’s grievance
15
asserted
negotiations
claim because
§
arose after
(2)
impasse,
plaintiff
had reached an
failed to
proper procedure
filing
follow the
for
15
her
claim.
§
353
Dist v 1993] by
Dissenting Opinion
Cavanagh, C.J.
Legislature’s
em-
command that
ished the
ployers
respect
bargain
good
"in
faith with
wages, hours,
of
and other terms and conditions
423.215; MSA
. . . .”4 MCL
17.455(15).
apply-
practice
of
I would adhere to
change
ing
preimpasse
doctrine
unilateral
subjects
bargaining.
mandatory
Fac-
See CMU
applica-
reject
majority’s
ulty. Furthermore,
I
8(d)
interpreting
precedent
§
tion of federal
in this instance.
§to 15 of the
PERAj
nlra,
position
support
majority
its
finds
8(d)
interpreting
precedent
mainly
§
in federal
158(d).
Act,5 29 USC
the National Labor Relations
Admittedly,
prece-
to federal
this Court has looked
construing
interpreting
when
dent
the nlra
past.6
pera
on federal cases is not
in the
Reliance
appropriate
bar, however,
because
the case at
4
fact,
vigorously
today
this Court had
advanced
In
before
"pera
pera:
(The
p
Faculty,
279
was intended
mandates of the
by
CMU
conflicting
superimposed
Legislature
supersede
and is
laws
power from the Consti
institutions which derive their
even on those
Pontiac,
674;
itself”);
397 Mich
Pontiac Police Officers Ass’n v
tution
(1976) (A majority
of the Court concluded
6
probably
Although
certainty, it is
safe
cannot state with
we
adopted
Michigan Legislature intentionally
to assume that the
pera
expectation that
that
it did with the
15
in the form
§
legal prece
rely
Michigan
on the
merc and the
courts would
8(d)
they
nlra,
developed
to the extent
dents
apply
under
§
bargaining.
public
Ass’n
Police Offcers
sector
[Detroit
(1974).
44,
Emphasis
Detroit,
53;
is not concerned with the and its effect on public employees. Contrary majority’s to the asser- pera’s prohibition against pub- by tion, the strikes employees7 possible penalties lic and the faced public employees places strike,8 who choose to public employees disadvantaged position in a as compared private counterparts, to their sector warranting protection § broad under 15 of the public employees9 pera. Thus, their status as com- pels rejection precedent interpreting of federal private employees its effect on in this nlra instance.10 majority supports position its with the
premise
availability
that the
of interest arbitration
under
Additionally, importantly, Legisla- and most when, ture has made the expi- determination after ration of a employees’ bargaining agreement, public right
lack of the
to strike creates an
power
imbalance of
is contrary
7
17.455(2).
423.202;
MCL
MSA
8
pera
See,
Rockwell,
(The
generally,
supra, p
n 4
allows a
public employer
discipline
public employee striking
to terminate or
pera).
in violation of the
policy
While
is true that
the merc has announced a
similar to
interpreting
nlra,
that
interpretation,
found in the federal cases
such an
persuasive,
binding upon
while
is not
this Court. We
perpetuating agency interpretations
must refrain from
that are hos
Legislature.
tile to the clear mandate of the
keep
public employees
must
in mind that
'"[W]e
because
Michigan
strike,
are forbidden to
'section 15 of
must be
expansively
counterpart’
even more
construed than its nlra
adequately protect public employees’ rights.”
order to
[Central
Michigan
Faculty
Univ,
Michigan
Univ
Ass’n v Central
(1977)
App
113;
(Cavanagh, P.J.,
Mich
dissenting),
interest.
only
determined that an imbalance affected
types
public
certain
of
safety employees,
gave
whom it
right
to interest arbitration in
312;
17.455(33).
1969
423.233;
PA
MCL
It
appears
thus
Legislature
did not believe
purported
that a
imbalance in other
sector
employment required adjustment.
[Ante, p 342.]
majority
acknowledge
What the
fails to
is that
clearly
supplement
"Act 312 was
intended to
pera.”
1277,
Local
AFSCME
Line,
v Center
414
(1982).
642, 652;
Mich
what has applied to a is not a condition as such although it continues particular public employer to be such employers, public for other condition redefinition, private. eschewing we under- By and score the such consideration claims give prerogative Legislature it to the of the as deems warranted scope public employers that obligation impinges unduly bargaining Faculty, power govern. p on their [CMU Ass’n v Pontiac quoting Pontiac Police Officers (After Remand), (1976) 674, 684; 246 397 Mich NW2d J.). in Emphasis original.] (opinion Levin, III It is an "other term clear arbitration 13See n 1. required hours, bargain employers It is are true "wages, good impasse regarding and other terms faith to 17.455(15). 423.215; employment.” MCL and conditions of hours, "wages, and other terms and conditions Because regarded subjects bargain employment” mandatory are as negotiating ing, proposes party a collective once subject, party may take unilateral such a neither prior regarding impasse. it Police Detroit Officers action (1974). Detroit, 44, 54-55; 214 v Ass’n NW2d School Dist v
1993] Dissenting Opinion Cavanagh, C.J. employment” condition of ally changed that cannot be unilater- impasse negotiations.
absent an appellee unilaterally changed Because the the ar- process reaching impasse bitration before an negotiations newly with the union, certified pera. Accordingly, violated the I would reverse the holding Appeals. of the Court of JJ., Mallett,
Levin concurred Cavanagh, C.J.