Cameron v. Department of State Police

139 Mich. App. 199 (1984) 361 N.W.2d 765

CAMERON
v.
DEPARTMENT OF STATE POLICE

Docket No. 75033.

Michigan Court of Appeals.

Decided November 19, 1984.

Hankins & Associates, P.C. (by Dan E. Hankins & Ardith J. DaFoe), for plaintiffs.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Michael J. Hodge, Assistant Attorney General, for defendant.

Before: DANHOF, C.J., and D.E. HOLBROOK, JR., and C.W. SIMON,^[*] JJ.

D.E. HOLBROOK, JR., J.

This action is asserted by plaintiff Lieutenant Cameron and plaintiff Michigan State Police Command Officers Association, both individually and on behalf of a class of similarly situated individuals, who are appealing as of right. This case arose when Lieutenant Cameron tape recorded the testimony of a subordinate fingerprint examiner, Trooper Zang, while he was testifying in court. Zang filed an administrative complaint, which was investigated, and, after an interview with plaintiff, a written warning was placed in plaintiff's file. This warning stated that plaintiff had violated the collective-bargaining agreement between the Police Troopers Association (MSPTA) and the state and the Administrative Rules of the Michigan Supreme Court by his recording in court without permission of Zang or the court. Although plaintiff filed all possible grievances pursuant to civil service rules and regulations, he was unsuccessful in his assertion that recording for training purposes did not violate the letter or the spirit of the Administrative Rules of the Supreme Court or the contract. This warning was removed after one year since there were no further violations.

Zang filed another complaint under Article 7, Section 19 of the MSPTA contract. Such contract demands that any discipline other than a reprimand requires an evidentiary hearing. Plaintiff's particular choice of representation for the hearing was denied. For reasons irrelevant to this lawsuit, the hearing was cancelled and not rescheduled. On appeal, plaintiffs allege that their constitutional due process and Civil Service Commission rights were violated.

Plaintiff argues that the placing of the written warning in his employment file without providing him with a full evidentiary hearing is a violation of his due process rights. We do not agree. A thorough review of the record reveals that plaintiff did not suffer any loss of pay, position, status or any other right or benefit from his employment. As this Court said in Crider v Michigan, 110 Mich App 702, 728-729; 313 NW2d 367 (1981), lv den 414 Mich 953 (1982):

"Due process requires only that there be notice and a ``hearing appropriate to the nature of the case', Mullane v Central Hanover Bank & Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950), and that the hearing be held ``at a meaningful time and in a meaningful manner'. Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965). The formal and procedural requisites of the hearing may vary ``depending upon the importance of the interests involved and the nature of subsequent proceedings'. Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1971). Further, as this Court held in Detroit Board of Education v Parks, 98 Mich App 22, 41; 296 NW2d 815 (1980): ``Of course, due process does not require a prior hearing in every case of deprivation of a property right.'"

We find that an informal conference was consistent with the due process requirements in this case. No action was taken on the warning notice and it was expunged after one year as plaintiff had no further violations. We find no error in the lower court's opinion.

Plaintiff alleges that he was denied representation at his grievance proceedings and for the Article 7, Section 19 hearing. Plaintiff has based his argument on Section 7 of the NLRA, 29 USC 157, which provides in relevant part that, "Employees shall have the right to * * * engage in * * * concerted activities for * * * mutual aid or protection." The United States Supreme Court has upheld a NLRB interpretation of this to prohibit an employer "from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action". NLRB v J Weingarten, Inc, 420 US 251,253; 95 S Ct 959; 43 L Ed 2d 171 (1975).

The analogous provisions for Michigan are the Employee Relations Policy Rules of the Civil Service Commission, 6-5.1 and 6-5.3, which are as follows:

"6-5.1 Participation. — Employees may organize, form, assist, join or refrain from joining employee organizations of their own choosing. Eligible employees may also engage in concerted activities for the purpose of collective bargaining with the employer over wages, hours and all conditions of employment except as otherwise provided herein."

"6-5.3 Self-Representation. — Employees not in an exclusively represented unit have the right to represent themselves or be represented by others of their choosing and to pursue grievances under Civil Service rules and procedures."

In his opinion of October 24, 1983, Judge Warren compared these provisions to the NLRA, Section 7, and concluded:

"Unlike § 7, the ``concerted activities' referred to in rule 6-5.1 apply only to ``bargaining with the employer.' Similarly, the right to representation referred to in rule 6-5.3 refers only to the situations cited in rule 6-5.1 and to grievance actions. Neither rule refers to concerted activities for purposes of ``mutual aid or protection,' nor do any other words used in these rules suggest that any additional protections contained in the NLRA were meant to be adopted. Thus, the CSC rules do not provide the Plaintiffs with an absolute right to representation at investigatory interviews."

Additionally, rule 6-2.1(9) only grants the right to engage in concerted activities to "eligible employees", which does not include managerial, supervisory or confidential positions. Plaintiff is a supervisory officer.

Our review of the record shows that plaintiff was only limited to his choice of representation and we find no authority to permit unlimited representation at an Article 7, Section 19 hearing. We also find that plaintiff did not request representation in the matter of the warning.

Accordingly, we find no error in the lower court's holding and affirm the dismissal of plaintiff's claim.

We find no merit in defendant's cross-appeal and this issue need not be considered. Diggs v State Board of Embalmers & Funeral Directors, 321 Mich 508; 32 NW2d 728 (1948).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.