These two cases involve the same parties and have been consolidated for decision on appeal. Together they present important questions concerning the method our Legislature has devised for resolving disputes between public employees and their employers and the extent to which the traditional powers of equity courts can be invoked to aid the disputants without interfering with that statutory procedure.
The Van Buren Public School District is a public employer within the meaning of the public employment relations act (PERA), MCLA 423.201, et seq.; MSA 17.455(1) et seq. Prior to the 1972-1973 school year, Van Buren had owned, operated and maintained a transportation system for the busing of about 95% of its approximately 8,000 students. It had employed some 58 persons to drive its buses. These bus drivers had since 1965 been members of, and represented for purposes of collective
On April 12, 1972 the president of Local 1014 requested in writing the opening of negotiations on a new contract for the 1972-1973 school year. Van Buren did not respond to this demand. Several subsequent oral inquiries by the union president followed in May and June, 1972. A representative of Van Buren indicated in response that he was presently unable to arrange a satisfactory meeting date for Van Buren's negotiating team.
In early July, 1972 Van Buren advertised for bids on the operation of its school bus transportation system. National School Bus Service, Inc. submitted a bid, and on July 10, 1972 was awarded a subcontract at a meeting of the Van Buren School Board.
The following day, July 11, 1972, Van Buren notified its bus drivers by letter of the decision to subcontract the busing of its students. The letter suggested that the drivers contact National about "employment opportunities". Approximately 50% of Van Buren's 58 bus drivers were ultimately hired by National for the 1972-1973 school year.
On July 27, 1972 the union filed an action in Wayne County Circuit Court seeking injunctive and other relief for Van Buren's alleged failure to honor its contract with the union. On August 7,
A hearing on the request for preliminary injunctive relief was held on August 18, 1972 and a preliminary injunction restraining Van Buren from terminating the employment of its bus drivers until a determination by MERC was granted by written order on August 25, 1972. Emergency leave to appeal was sought in this Court and denied on September 6, 1972.
On August 30, 1972 a hearing was held on the MERC complaint. On January 22, 1973 the administrative law judge issued a written opinion in which he found that Van Buren had engaged in an unfair labor practice in failing to bargain with the union about the decision to subcontract the busing of the students. Van Buren appealed to the full commission, which by written order dated October 1, 1973 adopted the decision of the administrative law judge in its entirety. The appeal in No. 18493 followed.
In the meantime, the union on September 5, 1972 filed a petition for an order to show cause why Van Buren should not be held in contempt for violating the preliminary injunction. At a hearing on September 12, 1972, the circuit court declined to find Van Buren in contempt but instead reinstated its order and rescheduled the hearing on the petition for show cause. At a hearing held on October 4, 1972, Van Buren was found in contempt of the preliminary injunction. The appeal in Nos. 15473 and 15474 followed.
Van Buren first claims that the circuit court was without authority to enter its preliminary injunction because jurisdiction over unfair labor practice charges is by statute reserved to MERC.
Wisely, the union does not dispute the latter proposition. It is clear that MERC has been given exclusive jurisdiction over all unfair labor practices. MCLA 423.216; MSA 17.455(16), Labor Mediation Board v Jackson County Road Commissioners, 365 Mich. 645; 114 N.W.2d 183 (1962), Detroit Board of Education v Detroit Federation of Teachers, 55 Mich.App. 499; 223 N.W.2d 23 (1974).
However, the circuit court has not here sought to exercise jurisdiction over the merits of the unfair labor practice charge. The circuit court did not purport to adjudicate the questions before MERC or oust MERC from jurisdiction to decide them.
"It is ordered that the defendant, the Van Buren Public School District, its agents, employees and servants be and it hereby is restrained from termination of the employment of the drivers of the school district transportation department, until hearing of this matter after final determination of case No. C-72-H137 of the Michigan Employment Relations Commission which is set for hearing on August 30, 1972 and based upon the same transaction as is this lawsuit, or until further order of this court." (Emphasis supplied.)
Van Buren seems to argue that MCLA 423.216; MSA 17.455(16) creates an exclusive method for obtaining injunctive relief in cases involving public employees. That section sets forth in great detail the procedure to be followed once an unfair labor practice charge has been filed. In particular, MCLA 423.216(h); MSA 17.455(16)(h) provides, in pertinent part:
"The board shall have power * * * to petition [a] circuit court * * * for appropriate temporary relief or restraining order, in accordance with the general court rules, and the court shall have jurisdiction to grant to the board such temporary relief or restraining order as it deems just and proper."
This section must be read only as a grant of authority to MERC to request judicial assistance and not as an implicit denial of the historic right of aggrieved private individuals to obtain such relief. We are confident that the Legislature here intended to create another technique for harnessing the powers of equity courts, to empower MERC to seek and obtain equitable relief. Absent such an enabling statute, MERC would be unable to protect its interest in the outcome of a dispute, once that interest is triggered by the filing of a charge, if the charging party decided that the protection of
Van Buren contends, in the alternative, that even if the circuit court had jurisdiction to issue the preliminary injunction, it abused its discretion in doing so, because two of the prerequisites for obtaining a preliminary injunction — namely, irreparable injury and inadequate legal remedy — were insufficiently demonstrated by the union.
We accept the proposition that an injunction cannot be granted unless the party requesting it satisfies the court that he will otherwise suffer irreparable injury, Royal Oak School District v State Tenure Commission, 367 Mich. 689, 693; 117 N.W.2d 181 (1962), and that he does not have an adequate remedy at law, Schantz v Ruehs, 348 Mich. 680, 683; 83 N.W.2d 587 (1957). However, the union met this burden in the instant case.
The union members were threatened with irreparable harm. Had Van Buren been free to go forward unrestrained with its decision to terminate the employment of the bus drivers, the question before MERC — was there a duty to bargain about the subcontracting decision? — would have become moot for all practical purposes. In that
In the same way, the union's legal remedy — resort to MERC's decisional process — was inadequate. While it is true that MERC is empowered to order reinstatement and back pay, MCLA 423.216(b); MSA 17.455(16)(b), a remedy which mirrors that ordered by the court in its preliminary injunction, the MERC remedy is not "as adequate, complete and certain as the relief in equity", Steggles v National Discount Corp, 326 Mich. 44, 49; 39 N.W.2d 237 (1949) (emphasis supplied), because the MERC remedy was not immediately available,
In order to be certain that a MERC decision would not be rendered nugatory by the mere
Van Buren also attacks the court's decision to grant the preliminary injunction and the subsequent finding of contempt with the following argument:
1. The court ordered Van Buren to not terminate the employees on or after August 25, 1972.
2. If the employees were terminated, they were either terminated before or after that date.
3. If they were not terminated after that date, the injunction was not violated.
4. If they were terminated before that date, the injunction was either not violated or it, in effect, ordered Van Buren to rehire the employees and was accordingly void as a mandatory injunction.
Van Buren contends that its letter of July 11, 1972, informing the bus drivers of its decision to award a subcontract to National, terminated the drivers' employment. Since this occurred prior to the effective date of the injunction which prohibited the termination of the drivers, Van Buren maintains that it cannot be said to have violated
The short answer to this argument is that it misapprehends the message of the injunction. The circuit court acted to preserve what it conceived to be the status quo at the time of the August 18, 1972 hearing on the union's request for an injunction. It is evident from the record that the circuit judge believed that the bus drivers were still employed by Van Buren as of that date. He was not informed to the contrary by counsel for Van Buren until after the injunction was issued. In addition, the collective bargaining agreement was still in force at the time the injunction was issued, which further led the court to believe that the bus drivers were still employed by Van Buren on August 25, 1972. As the circuit judge explained at the October 4, 1972 contempt hearing:
"I think from a reading of the order that I entered and a reading of the transcript, it is clear that the intent of the order and the reasonable language of the order required that these drivers not be terminated from their employment but rather they be continued on as employee drivers of the school district transportation department until a resolution before the Michigan Employment Relations Commission and a return of this matter to the court."
The message of the order, as understood by all parties, was that the union drivers were to continue driving buses. We cannot accept Van Buren's offer to exalt form over substance. Nor can one party be allowed to unilaterally change the status quo sought to be protected or manipulate the corrective hand of a court of equity. The rule to be applied in a case like the one before us was set
"`Equity regards the substance rather than the form of things, and will not allow itself to be baffled by a wrongful change while its aid is being invoked. The modern cases, therefore, have established the rule that the status quo which will be preserved by preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status, though he succeeded in making the change before the chancellor's hand actually reached him. The doctrine is not new — only its application in practice to meet the efforts of those who endeavor to be swifter than justice and the law.'"
Even if Van Buren's claim that it had already fired the drivers, sold its buses, and "liquidated its busing business" is accepted, the injunction — which would then require Van Buren at least to rehire the drivers and make certain that they were employed in the transportation of Van Buren students — was still proper. Court orders which require mandatory affirmative action, necessary to the preservation of the status quo, have consistently been allowed in this state. Gates v Detroit & M R Co, 151 Mich. 548; 115 NW 420 (1908), Steggles, supra, L & L Concession Co v Goldhar-Zimner Theatre Enterprises, Inc, 332 Mich. 382; 51 N.W.2d 918 (1952). The following quotation from Gates, supra, at 551, is appropriate here:
"Courts look with disfavor upon mandatory injunctions and will only grant them when it is necessary to preserve the status quo. Usually an order restraining action will accomplish this result, but the status quo is not always `a condition of rest, but of action'. Whenever courts have found a mandatory injunction essential to
The trial judge sitting in equity thus has a great deal of leeway in choosing which status quo to protect:
"the maintenance of actual status quo is not the only function of an injunction pendente lite. The court can consider whether under all the facts and circumstances of the case the issuance of the temporary injunction will maintain the parties in that status which is least likely to do irreparable injury to the party who ultimately prevails." Holland School District v Holland Education Association, 380 Mich. 314, 331; 157 N.W.2d 206 (1968) (BRENNAN, J., dissenting).
The costs to the union in not providing injunctive relief were, as we have seen, considerable. Any loss to Van Buren occasioned by the issuance of the preliminary injunction was in large part due to its imprudent actions and exacerbated by its contemptuous conduct. Accordingly, we conclude that the preliminary injunction could lawfully require Van Buren to take affirmative steps to insure the continued employment of the union drivers. We conclude further that Van Buren's failure to comply with the terms of the preliminary injunction constituted a clear violation of the court order and amply supported a finding of contempt.
Van Buren's final attack on the injunction is directed at the language of the order. It is said that the circuit judge did not draft the order in accordance with GCR 1963, 718.9(2) and (3), which provide, respectively, that every order granting an injunction must be "specific in terms" and must "describe in reasonable detail * * * the act or acts
The order has already been reproduced in this opinion. It clearly and unmistakably instructed Van Buren to insure that the union members were employed as bus drivers. Its terms were sufficiently specific and detailed to inform Van Buren of this.
Moreover, on September 12, 1972, when the parties appeared for the hearing on the show cause petition, the trial judge was careful to make absolutely certain that everyone understood what was required:
"The Court: I think the order is clear. I think it means that these drivers must be employed by the school district or must be employed, if not by the school district, by National Bus, as bus drivers until this matter is resolved by the MERC and the matter comes back here.
* * *
"I want the matter worked out so I mean what I say in the injunction.
* * *
"Do you gentlemen have anything you want to say?
"Mr. McDonald: No.
"Mr. Townsend: No, sir.
"The Court: Is it clear? Have I made myself clear so there is no question about it?
"Mr. Townsend: Yes, sir.
"The Court: All right."
Van Buren cannot at this late date be heard to complain that it was unaware of what was required of it. GCR 1963, 718.9 was fully satisfied by the preliminary injunction issued in this case.
In conclusion, we affirm the circuit court's decision
In No. 18493 Van Buren appeals from MERC's determination that it engaged in an unfair labor practice in violation of § 10 of PERA by failing to bargain with the union about the decision to subcontract the busing of students. In addition, Van Buren urges that the remedy ordered by MERC is excessive, punitive, and unjustified.
Under § 15 of PERA
"A public employer shall bargain collectively * * * with respect to wages, hours, and other terms and conditions of employment".
The decisive question, then, is whether the subject upon which the employer refused to bargain — subcontracting of school bus driving previously performed by members of the bargaining unit — is
In interpreting this phrase, we may look for guidance to Federal case law construing § 8(d) of the National Labor Relations Act (NLRA), since the language of the two sections is identical and the Michigan Legislature apparently sought to pattern § 15 of PERA after § 8(d) of the NLRA. Detroit Police Officers Association v Detroit, 391 Mich. 44, 53; 214 N.W.2d 803 (1974), Michigan Employment Relations Commission v Reeths-Puffer School District, 391 Mich. 253, 260; 215 N.W.2d 672 (1974). This Federal case law has been termed "persuasive precedent" by our Supreme Court. Detroit Police Officers Association, supra, at 64.
We agree with the litigants and MERC that the United States Supreme Court decision in Fibreboard Paper Products Corp v National Labor Relations Board, 379 U.S. 203; 85 S.Ct. 398; 13 L Ed 2d 233 (1964), is the place to begin. Both parties rely on it. MERC rested its decision on it, maintaining that "[t]here are striking similarities between Fibreboard and this case".
In Fibreboard, the employer decided to subcontract the maintenance work performed at one of its plants, work which previously had been done by union members. This decision was based on a study which disclosed that by engaging an independent contractor to do the maintenance work a substantial cost savings could be effected. A contract was entered into between the employer and an independent contractor, under which the employer would furnish necessary tools, supplies and equipment and the independent contractor would supply labor and supervision. The cost of this arrangement to the employer was substantially less than that borne by it under the previous union contract.
First, the Fibreboard Court reasoned that "[t]he subject matter of the present dispute is well within the literal meaning of the phrase `terms and conditions of employment'". Fibreboard, supra, at 210. It was felt that the termination of the union members' employment necessarily resulting from the subcontracting decision was a very important "term and condition of employment". We think that the subject matter of the instant dispute, which also involves job termination, fits within the literal meaning of § 15 of PERA.
The second justification for the Fibreboard decision was that it effectuated one of the primary purposes of the NLRA, "to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation". Fibreboard, supra, at 211. The Court indicated that forcing the parties to bargain about the decision to subcontract would promote this purpose "by bringing a problem of vital concern to labor and management within the framework established by Congress as most conducive to industrial peace". Fibreboard, supra, at 211.
The Michigan act shares this fundamental purpose
We are not convinced that bargaining would have served no purpose. The merits of Van Buren's decision to subcontract are not so clear as to eliminate the need for discussion. Union input might reveal aspects of the problem previously ignored or inadequately studied by Van Buren. The union may well be able to offer an alternative to the one chosen by Van Buren which would fairly protect the interests and meet the objectives of both. Surely discussion of the subject would have done much to "promote industrial peace" and may even have prevented the present lawsuits. Negotiation, even if ultimately unsuccessful, does much to appease; explanation at the bargaining table will sooner quell anger than receipt of a tersely worded termination slip. The Fibreboard Court responded to a similar argument by saying:
"The short answer is that, although it is not possible
The final reason assigned by the Fibreboard Court in support of its decision was the fact that subcontracting "in one form or another has been brought, widely and successfully, within the collective bargaining framework". Fibreboard, supra, at 211. The Court looked to industrial practices to determine whether such decisions were thought by labor and management alike to lend themselves to collective bargaining. We accept the Court's conclusion on this matter; we are confident that industrial practices since 1964 have remained fairly constant. Any changes have no doubt been in the direction of increasing the scope of contractually required bargaining subjects and widening the variety of grievance filings.
Finally, § 15 of PERA must be even more expansively construed than its NLRA counterpart. Only by requiring mandatory bargaining on a wide range of subjects are public employees' rights protected, since pursuant to § 2
Van Buren argues that Fibreboard is distinguishable from the instant case. It contends that we have an obligation to limit Fibreboard to its facts, pursuant to Supreme Court request. Fibreboard, supra, at 215. Van Buren disputes the claim that the type of contracting involved in Fibreboard is similar to that involved here. It is said that
In Fibreboard the employer's basic operation did not change under the subcontract because "maintenance work still had to be performed in the plant". Fibreboard, supra, at 213. Similarly, busing of students is still being carried out in the Van Buren School District. Van Buren remains responsible, even with National operating the transportation system, for the busing of the students in several important ways.
Once Van Buren decided to go into the busing "business" it could not liquidate that business merely by entering into a contract with National. Under state law, once the decision is made to bus any students, a school district must provide transportation for all resident pupils. MCLA 340.590a; MSA 15.3590(1). Any such school district must determine "regular routes" for transportation, follow the rules and regulations on school bus transportation promulgated by the superintendent of public instruction
Assuming the authority of the Van Buren School Board to enter into the subcontract with National,
The employer in Fibreboard also satisfied the second test, because it merely replaced existing employees with those of the independent contractor to do the same work under similar conditions and did not recoup any capital investment. Van Buren maintains that it completely liquidated its busing business. It claims that it recovered its investment in school buses by selling them. Moreover, Van Buren continues, union employees were not merely replaced, but a highly professional organization was hired to more efficiently manage a highly sophisticated transportation system.
We are not convinced. Van Buren apparently
Nor do we think the features that National was to add to the transportation system of the Van Buren school district require us to depart from the Fibreboard principle. In Fibreboard itself the independent contractor promised to reduce the work force, decrease fringe benefits, eliminate overtime payments, preplan and schedule the services to perform, and provide supervision and office help. Fibreboard, supra, at 206. Of primary importance was that the work to be done by those replacing the union employees was essentially similar. In the instant case, the bus drivers employed by National are still driving buses, work which the union bus drivers are "capable of continuing to perform". Fibreboard, supra, at 210.
Here Van Buren remains free, indeed obligated by state law, to manage its transportation system. Imposition of a duty to bargain "does not compel either party to agree on the proposal or require the making of a concession". Detroit Police Officers Association, supra, at 56. Van Buren will not be hampered in the management of its "business" or coerced into reversing what may be by now — thanks to its own failure to honor the circuit court injunction — a 2-1/2 year arrangement with National.
Van Buren has cited numerous post-Fibreboard cases which it claims more closely parallel the instant one.
MERC ordered Van Buren to comprehensively remedy the effects of its unfair labor practice by, among other things, 1) rescinding its subcontract with National and "reinstat[ing] such services as they existed prior to such unlawful subcontracting", 2) offering reinstatement and providing back pay to all former employees, and 3) bargaining upon request with the union "with regard to subcontracting of bargaining unit work". Van Buren insists that this order is punitive, inappropriate to effectuate the policies of PERA, and unfair. We disagree.
We are not unmindful that any affirmative action "including reinstatement of employees with or without back pay" ordered by MERC must "effectuate the policies of [PERA]". MCLA 423.216(b); MSA 17.455(16)(b). However, we are also reminded that MERC's power here, like that of the NLRB, is "a broad discretionary one, subject to limited judicial
Our review of this remedial order is governed by MCLA 423.216(e); MSA 17.455(16)(e), as follows:
"[T]he court * * * shall grant to the board such temporary relief or restraining order as it deems just and proper, enforcing, modifying, enforcing as so modified, or setting aside in whole or in part the order of the board. The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive."
We agree with the litigants that this standard of review requires that MERC's order not be disturbed "`unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the act'. Virginia Electric & Power Co v Labor Board, 319 U.S. 533, 540; 63 S.Ct. 1214; 87 L Ed 1568 ." Fibreboard, supra, at 216.
The status quo ante remedy imposed here is designed to return the parties to the bargaining positions they were in before the unfair labor practices were engaged in, in full recognition of the fact that in order to make the duty to bargain meaningful there must be something to bargain about. This remedy was upheld in Fibreboard itself as "well designed to promote the policies of the [NLRA]". Fibreboard, supra, at 216. The administrative law judge convincingly explained his reasons for imposing this remedy:
"I conclude that the status quo ante remedy must be recommended in this case, and that it is the only meaningful remedy under the circumstances herein.
Van Buren maintains that the status quo ante remedy is only appropriate where there is a finding of anti-union animosity. See, e.g., National Labor Relations Board v Winn-Dixie Stores, Inc, 361 F.2d 512 (CA 5, 1966), National Labor Relations Board v Northwestern Publishing Co, 343 F.2d 521 (CA 7, 1965). It suggests further that "[t]here is no finding in the instant case that petitioner had any anti-union animus or that any other unfair labor practice activity permeated its decision to cease operating its own bus service". Reply brief for appellant, at 16.
Assuming, arguendo, the validity of the claim that anti-union bias must be found before a status quo ante remedy is permissible, Van Buren conveniently overlooks MERC's explicit finding that it has also violated § 10(a) of PERA which makes it unlawful for a public employer "to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9". MCLA 423.210(a); MSA 17.455(10)(a). Among the rights listed in § 9 is the right to bargain collectively. MCLA 423.209; MSA 17.455(9).
Section 10(a) of PERA adopts word-for-word the
In addition, the record contains "competent, material and substantial evidence", MCLA 423.216(e); MSA 17.455(16)(e), to support a finding of anti-union animus. Van Buren ignored repeated requests to bargain and refused to meet with union negotiators for four months, until legal proceedings were begun against it. Notice of the decision to subcontract was never sent to the union, even though that decision served to terminate the employment of union members and even though Van Buren was aware of the union's repeated attempts to begin negotiating a new contract. There was concededly no economic justification for the subcontracting decision, which was carried out despite a substantial increase in cost. Finally, National, though it hired nearly 50% of Van Buren's former employees, failed to hire any of the members of the negotiating team, even though these drivers had more job experience.
We are aware that the remedy imposed serves in large part to add additional support to the union's bargaining position, because it severs Van Buren's 2-1/2-year relationship with National and requires
"The employer had more than one opportunity to comply with the public employment relations act. It not only entered into a contract with the National School Bus Service, Inc., after having received a request from Local 1014 to bargain; it persisted in its action in face of a preliminary injunction issued by the Wayne County Circuit Court. The employer is in no position to object to the remedy."
"It shall be an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title".