Northern Michigan Education Ass'n v. Kalkaska Public Schools Board of Education

Bashara, J.

This appeal arises from a ruling by the Michigan Employment Relations Commission (MERC) that plaintiffs were not disqualified from serving as bargaining representatives for teachers from both the school systems.¹

Defendants Kalkaska Board of Education and Vanderbilt Area Schools, ably assisted by comprehensive briefs of amici, contend the Northern Michigan Education Association (NMEA) is an improper bargaining representative for the teachers in their respective systems. The defendants primarily base their contention on the provisions of the labor mediation act, MCL 423.9e; MSA 17.454(10.4). Defendants argue the statute provides that the bargaining unit shall be the employees of one employer, and that the school board is required to deal with a labor organization only when it exclusively represents their employees. Defendants claim that a union representing more than one bargaining unit involving several school systems creates a conflict of interest.

The section in question states:

"The commission, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of one employer employed in one plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units. If the group of employees involved in the dispute was recognized by the employer or identified by certification, contract, or past practice, as a unit for collective bargainings the commission may adopt that unit.” MCL 423.9e; MSA 17.454(10.4).

A close reading of that section reveals that it does not place a restriction on the bargaining representative, but restricts the bargaining unit itself. In the present case, there is no dispute as to the appropriateness of the bargaining unit.

The public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., is the dominant law governing public employee labor relations in Michigan. The Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977). Section 9 of the PERA provides that,

"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.” MCL 423.209; MSA 17.455(9).

A provision similar to the above cited PERA section is found in the National Labor Relations Act, 29 USC 157.

Our Supreme Court has frequently indicated reliance upon construction of provisions of the NLRA through decisions of the National Labor Relations Board and the Federal Courts in construing the analogous state statute. Rockwell v Crestwood School District Board of Education, 393 Mich 616; 227 NW2d 736 (1975).

Several Federal decisions have found that the principal concern is whether a collective bargaining representative was the free choice of the employees. The manner of selection and the representative chosen are matters exclusively within the province of the employees. The employer has no voice in choosing the representative for its employees and must maintain neutrality in the selection process. NLRB v Jones & Laughlin Steel Corp, 301 US 1; 57 S Ct 615; 81 L Ed 893 (1937), Minnesota Mining & Mfg Co v NLRB, 415 F2d 174 (CA 8, 1969).

The NMEA admittedly represents employees of several school districts. Defendants contend this creates sufficient conflict so as to preclude the NMEA from serving as bargaining representative to any single school district.

Defendants rely on Bausch & Lomb Optical Co, 108 NLRB 1555; 34 LRRM 1222 (1954), in support of their position. However, in that case the union had set up an optical business which directly competed with the employer. Likewise, in Bambury-Fashions Inc, 179 NLRB 447; 72 LRRM 1350 (1969), a union was disqualified because it was operating a business in direct competition with the employer. The NLRB reasoned that the union’s interests in representing the employee salesmen conflicted substantially with its primary interest in coordinating the activities of its affiliates. See also NLRB v David Buttrick Co, 399 F2d 505 (CA 1, 1968), where the Court affirmed an NLRB holding that the danger of conflict was not clear and present.

The facts in the case at bar are distinguishable from those cited by defendants. The competition factor is not present here. We agree with the administrative law judge and MERC that the possibility of a substantial conflict of interest is too remote to preclude the NMEA from representing teachers in different school districts.

Defendants also contend that a hearing on objections to an election petition is the proper method for determining whether a labor organization with alleged extra-unit interests is disqualified from acting as collective bargaining representative. Neither the plaintiffs nor MERC has addressed this issue in their respective briefs.

We accept the premise of defendants as correct, not only because plaintiffs have failed to respond, but because a challenge to an election petition is a proper method of determination in such a case. See NLRB v H P Hood Inc, 496 F2d 515 (CA 1, 1974), and City of Hart, 1976 MERC Labor Opinions p 252.

Defendants’ final argument is that this Court should permit the record in this case to be supplemented by the transcript and exhibits of an unfair labor practice hearing held on August 9, 1977. The hearing in question was held approximately seven months after the appeal bringing the principal matter before this Court.

GCR 1963, 820.1 empowers the Court of Appeals to add relevant evidence it deems necessary to resolve a matter before it. However, defendants have shown no good cause for supplementing the present record with after-acquired testimony. We also consider that defendants made no objection to the record when they appealed to this Court. It should also be noted that this Court has already rejected such a request.

We conclude that there has been no showing that a conflict of interest exists which will interfere with the plaintiff representative’s loyalty to the defendants’ employees.

Affirmed, no costs, a public question being involved.

1 This matter originally came to the Court of Appeals on an application for leave to appeal a MERC opinion ordering an election in the Kalkaska school system. Defendants appealed this Court’s denial of the application to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted, 401 Mich 826 (1977). The record in the Kalkaska hearing was adopted in the case involving the Vanderbilt Area Schools and the cases were consolidated for appeal here.