Explanation of Schuette's response in Court of Appeals right-to-work challenge

7/29/2019 Explanation of Schuette's response in Court of Appeals right-to-work challenge

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STATE OF MICHIGAN

IN THE COURT OF APPEALS

UAW, UAW LOCAL 6000, MICHIGAN

CORRECTIONS ORGANIZATION, SEIULOCAL 526M, MICHIGAN PUBLIC

EMPLOYEES, SEIU LOCAL 517M,

MICHIGAN STATE EMPLOYEES

ASSOCIATION, AFSCME LOCAL 5,

Plaintiffs,

v

NINO ERWIN GREEN, EDWARD D.

CALLAGHAN, ROBERT LABRANT,

GOVERNOR OF MICHIGAN, ATTORNEY

GENERAL, STATE OF MICHIGAN,

Defendants.

/

Court of Appeals No. 314781

DEFENDANTS RESPONSE TO PLAINTIFFS ORIGINAL COMPLAINT

FOR DECLARATORY RELIEF

EXPEDITED RELIEF REQUESTED

Bill Schuette

Attorney General

John J. Bursch (P57679)

Solicitor General

Counsel of Record

Richard A. Bandstra (P31928)

Chief Legal Counsel

Ann M. Sherman (P67762)Margaret A. Nelson (P30342)

Assistant Attorneys General

Attorneys for Defendants

P.O. Box 30736

Lansing, Michigan 48909

Dated: March 19, 2013 517.373.6434

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TABLE OF CONTENTS

Page

Table of Contents ........................................................................................................... ii

Index of Authorities ...................................................................................................... iii

Introduction ................................................................................................................... 1Background .................................................................................................................... 2

Argument ....................................................................................................................... 3I. PA 349s application to the state classified civil service does not violate

article 11, 5 of Michigans Constitution........................................................... 4A. Compulsory union membership and payment of service fees are

not a condition of employment. ............................................................. 4B. The plain language of article 11, 5 limits the Commission to

regulatingconditions of employment. ..................................................... 8C. Michigan courts have consistently recognized similar limits on

the Civil Service Commissions authority. .............................................. 9D. Laws of general applicability also recognize limits on the

Commissions authority.......................................................................... 11II. PA 349 is consistent with article 4, 48. ......................................................... 14

A. Article 4, 48 does not give the Commission exclusive authorityover all aspects of collective bargaining. ............................................... 15

B. Compulsory union membership and payment of union servicefees do not involve the resolution of a dispute. ..................................... 16

C. PERA is more comprehensive than the mere resolution ofdisputes. .................................................................................................. 17

III.

PA 349 does not violate section 4a of PERA. ................................................... 19

IV. Defendants Green, Callaghan, LaBrant, Snyder, and Schuette shouldbe dismissed with prejudice based on Plaintiffs failure to state a claim

and the lack of jurisdiction. .............................................................................. 21Conclusion and Relief Requested ................................................................................ 22

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INDEX OF AUTHORITIES

Page

CasesAFSCME Council 25 v State Employees Retirement System, 294 Mich App 1;

818 NW2d 337 (2011) ................................................................................................. 6

AFSCME Council 25 v Wayne County, 292 Mich App 68; 811 NW2d 4 (2011) ......... 17

Bonneville v MCO, 190 Mich App 473; 476 NW2d 41 (1991) ..................................... 17

Branum vBoard of Regents of the University of Michigan, 5 Mich App 134;

5 Mich App 134 (1966) ............................................................................................. 13

Council No. 11, AFSCME v Civil Service Commission, 408 Mich 385;292 NW2d 442 (1980) ........................................................................................... 5, 11

Dept of Civil Rights ex rel. Jones v Dept of Civil Service, 101 Mich App 295;

301 NW2d 12 (1980) ................................................................................................... 9

Dudkin v Michigan Civil Service Commission, 127 Mich App 397; 339 NW2d

190 (1983) ................................................................................................................... 7

Glass vDudley Paper Co., 365 Mich 227; 112 NW2d 489 (1961) .............................. 13

Halbert v Michigan, 545 US 605 (2005) ........................................................................ 5

Kunzig v Liquor Control Commission, 327 Mich 474; 42 NW2d 247 (1950) ............... 6

Marsh v Department of Civil Service, 142 Mich App 557; 370 NW2d 613

(1985) .......................................................................................................................... 9

Michigan State AFL-CIO v Civil Service Commission, 453 Mich 720; 566

NW2d 258 (1997) ...................................................................................................... 10

People v Bulger, 462 Mich 495; 614 NW2d 103 (2000) ................................................. 5

People v Peltola, 489 Mich 174; 803 NW2d 140 (2011) ................................................ 8

PetersvMichigan State College, 320 Mich 243; 30 NW2d 854 (1948) ................ 12, 13

Reed v Civil Service Commission, 301 Mich 137; 3 NW2d 41 (1942) ........................ 11

Regents of the University of Michigan v Employment Relations Commission,

389 Mich 96; 204 NW2d 218 (1973) ......................................................................... 13

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Straus v Governor, 459 Mich 526; 592 NW2d 53 (1999) .............................................. 8

Welfare Employees Union v Civil Serv Commn, 28 Mich App 343 (1970) ................ 17

Constitutional ProvisionsConst 1963, art 4, 48 .........................................................................................passim

Const 1963, art 4, 49 ..........................................................................................passim

Const 1963, art 11, 5 .........................................................................................passim

StatutesMCL 423.201 ................................................................................................................ 18

MCL 423.207 ................................................................................................................ 21

MCL 423.211 ................................................................................................................ 21

MCL 423.212 ................................................................................................................ 22

MCL 423.213 ................................................................................................................ 22

RulesMCR 7.205 ............................................................................................................ 1, 3, 22

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INTRODUCTION

Plaintiffs request for declaratory relief frames a basic question: whether

2012 PA 349a new law that prohibits public employers from requiring employees

to join a union or pay a service fee to enjoy employmentapplies to the classified

state civil service. Simple logic dictates that the answer is yes:

First, PA 349 applies broadly to all public employers in Michigan. So PA349 applies to the classified state civil service unless the Michigan

Constitution or another Michigan statute expressly prohibits it.

Second, the Michigan constitution does not preclude PA 349s applicationto the classified state civil service. Article 11, 5 vests the Michigan Civil

Service Commission with authority to regulate all conditions of employ-ment in the classified service. But the relationship between state

employees and a union is not a condition of employment as that phrase

is commonly understood. And the Commissions regulatory authority is

subject to the Legislatures power to enact laws relative to the hours and

conditions of employment in any event. Const 1963, art 4, 49.

Third, Michigan statutory law is not a bar to PA 349s application either.If PA 349 is consistent with article 11, 5 and article 4, 49 of the Consti-

tution, it is also consistent with the Public Employment Relations Act.

The question presented is of such imminent significance that Governor

Snyder has asked the Michigan Supreme Court to answer it through an advisory

opinion. (Compl, Ex C.) But the Supreme Court has not responded, leaving the

parties without judicial guidance as they prepare for negotiations that will begin in

late summer 2013 (the current collective bargaining agreement expires December

31, 2013).1 This Court should hold that PA 349 applies to members of the classified

state civil service, and it should do so in an expedited, peremptory ruling, without

further hearing or briefing, under MCR 7.205(D)(4).

1 If it is ultimately determined that 2012 PA 349 does not apply to the classified

state civil service, unions have indicated they will use that ruling to challenge both

newly enacted right-to-work laws (PA 348 and 349) on equal-protection grounds.

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BACKGROUND

PA 349

Governor Snyder signed PA 349 into law on December 11, 2012. (Compl,

Ex A.) Sections 9 and 10 prohibit Michigans public employers from interfering with

an employees freedom right to work without being compelled to join a union or pay

a service fee. Data shows that from 1999-2009, the five most successful states in job

growth were all so-called Freedom to Work states, while the five states with the

most job losses all had forced unionism.2

PA 349 reflects the fundamental principle that no one should be forced to join

a union or pay a service fee; every employee should have the freedom to choose. By

eliminating compulsory membership or fees, PA 349 ensures that unions compete

for members by providing the best service and value.

Constitutional framework

This dispute involves three provisions of Michigans Constitution, though the

Complaint mentions only the first two. The first provision is article 11, 5, which

grants the Civil Service Commission authority to, among other things, regulate all

conditions of employment in the classified service. The power to regulate is

different than the Commissions other powers, which are more legislative in nature.

Const 1963, art 11, 5 (classify all positions in the classified service; fix rates of

compensation; approve or disapprove disbursements; determine qualifications;

and make rules and regulations covering all personnel transactions).

2 http://www.mifreedomtowork.com/WhatisFreedomtoWork.aspx.

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The other two relevant constitutional provisions are 48 and 49 of article 4,

which state:

The legislature may enact laws providing for the resolution of disputesconcerning public employees, except those in the state classified civilservice. Const 1963, art 4, 48 (emphasis added).

The legislature may enact laws relative to the hours and conditions ofemployment. Const 1963, art 4, 49.

Together, 48 and 49 vest the Legislature with power to define conditions of

employment with respect to any employee, public or private; give the Legislature

the further power to legislate in the area of dispute resolution, but with respect to

public employees only; and remove the legislative power to regulate disputes among

public employees in the state classified civil service. If the People had wanted to

exempt the state classified civil service from the Legislatures authority to enact

laws relative to employment conditions, they knew precisely how to do so. They did

not. Within that context, the Court can consider the arguments the Unions advance

here in support of their narrowing construction of PA 349.

ARGUMENT

The Unions do not contest that PA 349s text forbids public employers

including the Statefrom imposing compulsory union membership or service fees

on public employees. Accordingly, this Court must apply PA 349 to the classified

state civil service unless doing so violates the Michigan Constitution or another

Michigan statute. Because no other provision of Michigan law prohibits PA 349s

application to the state classified civil service, the Court should issue an expedited,

peremptory merits ruling in Defendants favor under MCR 7.205(D)(4).

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I. PA 349s application to the state classified civil service does notviolate article 11, 5 of Michigans Constitution.

Article 11, 5 of Michigans Constitution authorizes the Civil Service

Commission to regulate all conditions of employment in the classified service. PA

349 does not overstep the Commissions authority for two basic reasons. First,

compulsory union membership and fees are not conditions of employment as that

phrase is commonly understood. Second, the Commission does not have plenary

authority to fix or determine conditions of employment, only the power to regulate

them. Michigans Constitution vests the Legislature with the power to enact laws

relative to the hours and conditions of employment. Const 1963, art 4, 49.

A. Compulsory union membership and payment of service feesare not a condition of employment.

Plaintiffs say that union membership, or a mandatory service fee paid to a

union, is a condition of employment; in fact, PA 349 uses those very terms. But in

this context, the phrase condition of employment is not synonymous with any

prerequisite the Civil Service Commission decides to impose. No one would argue,

for example, that the Commission has the power to make it a condition of

employment that an employee become a member of the National Rifle Association or

the American Civil Liberties Union.

Thus, when the Michigan Supreme Court defined the phrase condition of

employment in 1980, it focused on internal matters: employment-related activity

involving internal matters such as job specifications, compensation, grievance

procedures, discipline, collective bargaining and job performance, including the

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power to prohibit activity during working hours which is found to interfere with

satisfactory job performance. Council No. 11, AFSCME v Civil Service Commis-

sion, 408 Mich 385, 406-407; 292 NW2d 442 (1980). There is a difference between

conditions ofemployment and conditionsfor employment. Id. at 406. Compul-

sory membership in, or even a service fee payable to, a union is not an internal,

employment activity. It is not a matter between the employer and the employee. It

is control of the relationship between the employee and a third party: a union.

The Legislature has not banned unions or collective bargaining, nor has it

prohibited employees from joining a union. The Legislature has simply given

employees a choice. And it cannot be said that elimination of that choice in the

state classified civil service is a condition of employment as the People understood

that phrase at the time they ratified the 1963 Constitution.

The Peoples understanding of conditions of employment in 1963 is, of

course, the governing standard. People v Bulger, 462 Mich 495, 507; 614 NW2d 103

(2000), abrogated in part on other grounds by Halbert v Michigan, 545 US 605

(2005). So it is helpful to consider the history behind 5s drafting and ratification.

To begin, the 1961 Constitutional Convention Record is replete with concerns about

checks and balances on the Commissions authority. (E.g., Ex A, Official Record,

Const Convention 1961, pp 652, 653, 659, 662-663 (comments from Messrs. Hatch,

Shackleton, Knirk, and Brake expressing concern about checks and balances).)

But even earlier, in 1939, the report of the legislative committee investiga-

ting the civil service law in Michigan expressed concern about union coercion and

other forced payments in the public-employment context:

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(8) UNION ACTIVITIES

Your Committee finds that the State, County, and Municipal Workers

of America Union, an affiliate of the C.I.O., has threatened and

coerced state employees to join the said union, threatening loss of their

job if they did not join, and protection of their jobs if they did. . . . [ExB, 1939 Journal of the Senate No. 33, 277, January 6, 1939 meeting of

Committee Investigating the Civil Service Law in Michigan, p 277

(emphasis added).]

In the very capitol itself, in the department of state, some 600

employees were coerced, bludgeoned and cajoled into paying more than

20,000. This was known as the flower fund. [Id., p 274.]

Given this publicly expressed concern about compulsory union membership,

it is implausible that the People understood 5 as giving the Civil Service Commis-

sion exclusive authority to compel union membership. This conclusion is wholly

consistent with the reality that the relationship between employees and unions is

not even an internal employment matter. Accordingly, 5 does not bar PA 349s

application to the classified state civil service.

The cases the Unions cite in support of the proposition that compulsory union

membership or fees are a condition of employment (Pls Br in Support of Compl, pp

7-8) are readily distinguishable because they involved areas of employment-related

activity that are specifically enumerated in article 11, 5 or that the Legislature

had otherwise authorized:

Civil Service Commission v Auditor General, 302 Mich 673, 687; 5 NW2d536 (1942), involved the Commissions 5 authority to fix rates ofcompensation. So didAFSCME Council 25 v State Employees Retirement

System, 294 Mich App 1, 10; 818 NW2d 337 (2011).

Kunzig v Liquor Control Commission, 327 Mich 474; 42 NW2d 247 (1950),involved the Commissions 5 authority to classify all positions in the

classified service.

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Dudkin v Michigan Civil Service Commission, 127 Mich App 397, 407-409;339 NW2d 190 (1983), involved an agreement requiring a union service

fee. At that time, PERA, the Public Employment Relations Act, allowed

such agreements. MCL 423.210(1). Had the Commission not applied

MCL 423.210(1) when it adopted a modified collective bargaining process

for the state classified service, the unions would certainly have arguedstate law compelled it to do so.3

But effective March 28, 2013, it violates state law for a public labor agree-

ment to compel union membership or the payment of service fees to maintain

employment. Accordingly, the Commission must now comply with the amended law

in the same way it was compelled to comply with the previous law.

The Legislature has resolved the issue of compulsory union membership for

public as well as private employees. It would be inappropriate for the judicial

branch to draft exceptions to the statute that the Legislature did not contemplate in

PA 349s text.

3 The Civil Service Commissions current system of collective bargaining is some-

thing of a misnomer. As the Commission recognizes in its rules, the commission

cannot delegate its constitutional responsibilities to the collective bargaining

parties and the privilege to engage in collective bargaining remains subject to the

commissions sovereign authority and the rules of the commission. As such, no

agreement may take effect until the Commission approves, and the Commission

retains the authority to reject or modify any agreements or impose an entirely

different agreement on the parties, as well as to modify the agreement during its

term. Commission Rule 6-3.1. In 2002, the People rejected Ballot Proposal 02-3,

the Michigan Employee Rights Initiative, which would have amended article 11,

5 to grant state classified employees the right to engage in full collective

bargaining.Under the current system, the Commission has shifted the costs of carrying out its

constitutional duties onto employees and the State Employer. But in adopting

article 11, 5, the People made a specific provision to cover the costs of the

Commissions duties: a constitutionally-mandated appropriation of a sum not less

than one percent of the aggregate payroll of the classified service for the preceding

fiscal year, as certified by the commission. The Commissions current system is

thus in contravention of the Peoples original intent.

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B. The plain language of article 11, 5 limits the Commission toregulatingconditions of employment.

Even with respect to conditions of employment, the Civil Service Commission

does not have exclusive authority. As noted above, the Commission has legislative-

like authority to classify all positions in the classified service; fix rates of

compensation; approve or disapprove disbursements; determine qualifications;

and make rules and regulations covering all personal transactions. These powers

are far different than the authority to regulate, which means [t]o control or direct

according to a rule or [t]o adjust in conformity to a specification or requirement.

The American Heritage Dictionary 1041 (2d ed. 1985) (emphasis added).

The Commissions regulatory authority is thus subservient to the rules,

specifications, or requirements that the Legislature enacts under article 4, 49 with

respect to conditions of employment. And the Legislatures 49 power applies to

all workers; the People did notas they did only one provision earlier in 48

exempt members of the state classified civil service from this grant of legislative

authority. That is a distinction that makes a difference. People v Peltola, 489 Mich

174, 185; 803 NW2d 140 (2011) (Generally, when language is included in one

section of a statute, but omitted from another section, it is presumed that the

drafters acted intentionally and purposely in their inclusion or exclusion.).

It is well-established that provisions of the Constitution must be read in

harmony. Straus v Governor, 459 Mich 526, 533; 592 NW2d 53 (1999). Because

article 11, 5 and article 4 49 were adopted simultaneously, neither can logically

trump the other. Id. And they need not do so. Article 4, 49 empowers the

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Legislature to enact laws. Article 11, 5 authorizes the Commission to regulate

under those laws. In other words, the constitutional hierarchy establishes that the

Commissions powers regarding conditions of employment are inferior to those of

the Legislature.

The Unions proposed interpretation in their Complaint is untenable because

it (1) eliminates entirely the Legislatures article 4, 49 authority over the state

classified civil service, and (2) renders a nullity the rather obvious linguistic

distinction between article 4, 48 and 49. Rather than harmonizing article 4, 49

and article 11, 5, the Unions interpretation annihilates 49 in favor of 5. This

Court can easily reject that approach.

C. Michigan courts have consistently recognized similar limits onthe Civil Service Commissions authority.

This Court has often rejected the position that the Commission can disregard

constitutional provisions and applicable state laws. For example, this Court held

that the Commission does not have absolute power or exclusive jurisdiction in the

area of job discrimination. Dept of Civil Rights ex rel. Jones v Dept of Civil Service,

101 Mich App 295; 301 NW2d 12 (1980). Later, in Marsh v Department of Civil

Service, 142 Mich App 557, 569; 370 NW2d 613 (1985), this Court held that the

Commission is not exempt from legislation prohibiting discrimination and securing

civil rights in employmentnamely, the Elliott-Larsen Civil Rights Act. This Court

rejected the Commissions argument that state constitutional provisions supersede

and preempt any legislation regarding employment conditions. Id. at 563. Instead,

this Court emphasized that although article 4, 48 precludes the Legislature from

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enacting laws providing for the resolution of disputes in the state classified civil

service, this provision must be read in conjunction with the constitutional provision

creating the Civil Rights Commission and the equal protection/anti-discrimination

provision of our constitution. Id. at 566.

Following the same reasoning, the Ingham County Circuit Court in Schuette

v Civil Service Commission analyzed whether the Michigan Campaign Finance Act

impermissibly intruded into the Commissions sphere of authority. No. 08-101-CZ

at p 4 (Ex C, Order Denying Defs Mot for Reconsideration, issued October 27,

2011). The court concluded that the Commission had exceeded its sphere of

authority by adopting a Rule authorizing a payroll deduction plan to union

segregated funds (commonly referred to as PACs).

Relying on prior decisions of this Court, the circuit court noted that the

Commissions authority under article 11, 5 had to be harmonized with article 2,

4 of the Michigan Constitution, which grants the Legislature the authority to

enact laws to preserve the secrecy of the ballot, [and] to guard against abuses of

the elective franchise. . . . Id. (quotingDSS v Kulling, 190 Mich App 360, 363-64;

475 NW 2d 464(1991) ([W]here the Constitution specifically empowers the

legislature to enact laws on a particular subject, the Court must harmonize the

constitutional provisions and give effect to all of them.)).

Similarly, in Michigan State AFL-CIO v Civil Service Commission, 455 Mich

720; 566 NW2d 258 (1997), the Michigan Supreme Court held that the Commis-

sions rule prohibiting use of union leaves of absence for partisan political activity

violated both the Political Freedom Act and the First Amendment. The Court

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explained that the Commissions authority to regulate employment-related activity

involving internal matters did not extend to the blanket prohibition of off-duty

activities, political or otherwise, simply because such activities could conceivably

interfere with satisfactory job performance. Id. at 732-733 (emphasis added).

The Supreme Court also concluded in Council No. 11, AFSCME v Civil Ser-

vice Commission, 408 Mich 385, 408-409; 292 NW2d 442 (1980), that the Commis-

sion may not regulate the off-duty political activities of state classified employees

unless those activities were found to interfere with job performance. The Court

recognized that the Commissions rule presumptively conflicted with the power of

the Legislature to enact the Political Freedom Act, 1976 PA 169. Id. at 408.

Finally, in Reed v Civil Service Commission, 301 Mich 137, 151; 3 NW2d 41

(1942), the Supreme Court held that the Commission does not have the power to

decide with finality whether its acts conform to constitutional requirements as a

matter of fact or law.

This broad collection of cases, from a variety of different contexts,

demonstrate that the Commissions so-called plenary authority is in fact limited,

including by statutory enactments. Here, the Commission must likewise yield to

the constitutional authority of the Legislature in enacting PA 349.

D. Laws of general applicability also recognize limits on theCommissions authority.

The idea of checks on the Commissions authority is hardly novel. Numerous

other laws of general applicability also limit that authority.

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For example, the Commission has authority to set wages, but it cannot set

wages in a fashion that discriminates based on gender or race. Nor can it deny

state classified civil service employees unemployment or workers compensation

benefits, or set its own rates for those benefits, despite the fact that article 11, 5

otherwise allows the Commission to set rates of compensation and regulate

conditions of employment. The Commission cannot ignore professional licensing

requirements that the Legislature sets, nor can the Commission disregard child

labor laws.

The Commission also cannot adopt lesser safety standards than those

imposed by the Michigan Occupational Safety and Health Act, 1974 PA 154; neither

can it put someone in a position to drive a motor vehicle if the person is not properly

licensed under state laweven though it sets qualifications of all candidates for

positions in the classified service. If article 11, 5 were construed as broadly as

the Unions suggest, these laws of general applicability would never apply to the

state classified civil service. Yet they do applyboth because of the general

legislative power pursuant to article 4, 1, and because of the more specific

authority of the Legislature to enact laws relative to the . . . conditions of

employment. Const 1963, art 4, 49. The same holds true here.

In an analogous setting, Michigans courts havefor 65 yearsupheld the

Legislatures power to enact laws of general applicability despite the otherwise

broad constitutional authority of university boards. InPetersvMichigan State

College, 320 Mich 243; 30 NW2d 854 (1948), Michigan State College argued that the

1908 predecessor to article 8, 5which gave the Boards of Michigan State College,

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the University of Michigan, and Wayne State general supervisory authority over

their respective institutionsprecluded the Legislature from enacting laws

imposing workers compensation requirements on those universities. The Michigan

Supreme Court split 4-4 on the issue, thus affirming the lower courts determination

that MSU was not immune from the workers compensation act.

In numerous similar cases since, Michigan courts have held that the

Legislatures broad police powers override the specific constitutional authority of

university boards. E.g., Regents of the University of Michigan v Employment

Relations Commission, 389 Mich 96; 204 NW2d 218 (1973) (holding collective

bargaining rights established by PERA extend to university employees); Glass v

Dudley Paper Co., 365 Mich 227; 112 NW2d 489 (1961);Branum vBoard of Regents

of the University of Michigan, 5 Mich App 134; 5 Mich App 134 (1966) (holding

statutory waiver of sovereign immunity applied to university).

In Glass, the Supreme Court noted that in several prior decisions this Court

has held that [constitutional provisions] have invested the governing bodies of the 2

universities [MSU and UofM] with the entire control and management of the affairs

and property of these institutions, to the exclusion of all other departments of the

State government from any interference therewith. 365 Mich at 229. Yet the

Legislatures authority in article 7, 1 (of the 1908 Constitution)which authorized

the Legislature to establish inferior courtsoverrode the boards control.

Here, like the university boards inPeters and its progeny, the Unions seek to

carve out a hidden kingdom for the Commission. In truth, the Commission exists in

a system of checks and balances and under the specific authority of the Legislature

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to enact laws of general application governing conditions of employment. So even

assuming arguendo that the opportunity to organize and bargain is a condition of

employment under article 11, 5 (a position Defendants do not concede), such an

opportunity is still subject to the Legislatures authority to pass laws relative to the

conditions of employment. Const 1963, art 4, 49. And the Legislature has now

said that forced union membership or service fees are prohibited. Accordingly, the

Civil Service Commission must comply with PA 349.

II.

PA 349 is consistent with article 4, 48.

The Unions allege that application of PA 349 to the classified state civil

service exceeds the constitutional authority of the legislative branch under article 4,

48 and is therefore unconstitutional and invalid. (Compl, 32.) More specifically,

they argue that (1) PA 349 is an amendment of the Public Employment Relations

Act, (2) PERA was enacted pursuant to the Legislatures authority under article 4,

48, and (3) 48 exempts the state classified civil service from its scope. Thus, the

Unions say, PA 349 violates article 4, 48. (Pls Br at 8.)

But PA 349 is consistent with article 4, 48 for three reasons: first, article 4,

48 gives the Commission exclusive authority over the resolution ofdisputes

between employees and their public employer, not over every aspect of collective

bargaining, and certainly not over the relationship between an employee and a

union; second, compulsory union membership or service fees do not involve the

resolution of a dispute; and third, PERA deals with much more than just dispute

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resolutionit also represents an exercise of the Legislatures article 4, 49 power to

enact laws regarding employment conditions.

A. Article 4, 48 does not give the Commission exclusive authorityover all aspects of collective bargaining.

Article 4, 48 is very limited in scope, confining itself to dispute resolution

within public sector employment, except those in the state classified civil service.

This limited language does not give the Commission exclusive authority over all

other aspects of employment. And it certainly does not give the Commission

authority to control the contours of a relationship between public employees and a

union.

This plain language analysis is bolstered by the Constitutional Convention

comment to article 4, 48:

This is a revision of Sec. 7, Article XVI, of the present [1908] constitu-

tion to make it clear that the legislature has power to establish proce-

dures for settling disputes in public employment. The section does notspecify what the procedure shall be, but leaves that decision to future

legislatures. The state classified civil service is exempted because the

constitution has specific provisions in this area. [Ex D, Convention

comment to Const 1963, art 4, 48 (emphasis added).]

In this area means dispute resolution. (E.g., article 11, 5 provides state police

troopers and sergeants the ability to submit unresolved disputes to binding

arbitration.) Accordingly, it is inconsistent with article 4, 48s text and history to

say that the provision encompasses all aspects of the Commissions authority.

Section 48 is limited to dispute resolution.

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B. Compulsory union membership and payment of union servicefees do not involve the resolution of a dispute.

Neither compulsory union membership nor the payment of union service fees

has anything at all to do with the resolution of a dispute within the meaning of

article 4, 48. An employers authority to negotiate a service agreement is not

grievable and is not an unfair labor practice. In other words, a union representative

cannot grieve application of PA 349 to the state classified civil service, and a union

representative cannot file an unfair labor practice action against the Civil Service

Commission or the State Employer based on application of PA 349 to the state

classified civil service. Accordingly, article 4, 48 is inapplicable here. This very

point was made recently by the Commissions retained counsel in a case that also

challenged the application of PA 349 to the state classified service:

With respect to article four, section 48, which prohibits the legislature

from enacting laws covering disputes in the classified service, it has

absolutely no relevance to this issue. This is not about disputes. This

is about agency shop. [Ex E, Hrg Tr 22:4-8, oral argument before theIngham County Circuit Court on February 19, 2013, inDavis v Michi-

gan Civil Service Commission, No. 13-138-AW (emphasis added).]

None of the Unions cited authority here contradicts the Commissions

retained counsels representation to the Ingham County Circuit Court. PA 349s

application to the state classified civil service does not even implicate, much less

violate, the plain language of article 4, 48, particularly when 48 is readas it

must betogether with article 4, 49 and article 11, 5.

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C. PERA is more comprehensive than the mere resolution ofdisputes.

This Court has previously held that PERA does not apply to the state

classified civil service, but each of those earlier cases involved employment disputes.

Naturally, dispute resolution implicates article 4, 48 and its exemption for those

in the state classified civil service.

For example, inBonneville v MCO, 190 Mich App 473, 477; 476 NW2d 411

(1991), this Court held that Department of Corrections employees had to exhaust

Commissiongrievance procedures before bringing an action against their union

alleging a breach of a duty of fair representation, where their grievance claimed

they were performing work at a higher classification than that for which they were

being paid.

Similarly, in Welfare Employees Union v Civil Serv Commission, 28 Mich App

343, 352; 184 NW2d 247 (1970), this Court held that only the Commission has the

power to provide for grievance procedures applicable to the state classified civil

service, because the Legislature is precluded from enacting laws providing for the

resolution of disputes concerning public employees in the classified service. Id. at

351. The Court said nothing about the collective bargainingprocess being related to

the resolution of disputes within the meaning of 48. In similar contexts, appel-

late courts in dicta have cited article 4, 48 as the explicit constitutional authoriza-

tion for the enactment of PERA. See, e.g.,AFSCME Council 25 v Wayne County,

292 Mich App 68, 85; 811 NW2d 4 (2011), quoting Local 1383, Intl Assn of Fire

Fighters, AFLCIO v City of Warren, 411 Mich 642, 651; 311 NW2d 702 (1981).

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But nowhere on the face of PERA does the Legislature claim to rely exclu-

sively on its article 4, 48 authority. And although one of PERAs purposes is to

prohibit strikes by public employees (which clearly involves the resolution of

disputes), another is to provide a framework to establish the rights and privileges of

public employees. Tellingly, the legislative history of PERA reveals that the Act

deals with a broad spectrum of employee rights, including all aspects of collective

bargaining and the rights of labor unions that represent public employees.4

Additionally, application of PERA in the present context to the state

classified civil service is supported by PERAs definition of public employee:

Public employee means a person holding a position by appointment

or employment in the government of this state, in the government of 1

or more of the political subdivisions of this state, in the public school

service, in a public or special district, in the service of an authority,

commission, or board, or in any other branch of the public service,

subject to the following exceptions: [enumerating i iii, none of which

specifically excludes classified civil servants]. [MCL 423.201(e).]

41994 PA 112 amended the title of PA 336 of 1947 (PERA) to read: An Act . . . to

declare and protect the rights and privileges of public employees. (Ex F1, 1994

Journal of the House No. 63, pp 890, 1355.) The legislative history identifies a

number of purposes beyond dispute resolution: Another purpose of the Public

Employment Relations act is to provide a framework establishing the rights and

privileges of public employees. (Ex F2, House Legislative Analysis, SB 1015, p 1,

December 1996); The Public Employment Relations Act provides a framework

establishing the rights and privileges of public employees. (Ex F3, Bill Analysis,

Senate Fiscal Agency, p 1, SB 1015, January 1997); The Public Employment

Relations Act prohibits engaging in unfair labor practices, such as interfering withthe right of public employees to form a labor organization. (Ex F4, House

Legislative Analysis, p 824, SB 1520, September 1978); First, and foremost, this is

not about strikes, this is about collective bargaining, which is a basic right for any

working person in the state. It is about whether or not we are going to treat people

as professionals. (Ex F5, 1994 Journal of the Senate, No. 34, pp 823-826, Third

Reading of HB 5128, statement of Senator Stabenow, p 824); PERA was adopted

for the purpose of permitting public employees the right to organize and bargain

collectively. (Id. at pp 825-826, statement of Senator Cherry).

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State classified civil service employees fall comfortably within this broad language.

Thus, PERAs prohibition on compulsory union memberships or union service-fee

agreements applies to the state classified civil service and does not fall within 48s

resolution of disputes limitation.

In sum, parts of PERA, including its prohibition on compulsory union

member-ship and service fees, is very much a result of the Legislatures article 4,

49 power. And 49 does not exempt the state classified civil service. If

compulsory union membership and service fees are conditions of employment,

then the Legislature has the power to enact laws relative to those conditions, just as

it did with PA 349.

III. PA 349 does not violate section 4a of PERA.The Unions also argue that application of PA 349 to the state classified civil

service would be inconsistent with PERA 4a, which provides:

The provisions of this act as to state employees within the jurisdiction

of the civil service commission shall be deemed to apply in so far as the

power exists in the legislature to control employment by the state or

the emoluments thereof. [MCL 423.204a.]

The Unions have it exactly backward. Because the Legislature retains in article 4,

49 the power to enact laws relative to the hours and conditions of employment,

PERAs provisions apply to state employees within the jurisdiction of the civil

service commission. So if compulsory union membership and service fees are

considered conditions of employment, PERAs regulation of these matters applies to

the state classified civil service.

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If the Legislature wanted to exclude the state classified civil service from

4a, it could have done so. Indeed, the Legislature has rejected past efforts to do

just that. Consider, for example, failed 1996 HB 1015, which sought to amend

PERA by changing the language of 4a to provide that the act would not apply to

state employees within the jurisdiction of the civil service commission. (Ex G,

House Legislative Analysis, p 2, SB 1015, December 1996.) Instead, PERA is

deemed to apply to the extent the Legislature has authority over the state classi-

fied civil service. Under article 4, 48, that is the situation PA 349 presents here.

The Unions assert that [t]he legislature does not have power to control

terms and conditions of employment under the exclusive jurisdiction and control of

the Commission. (Compl, 35.) As explained in detail above, this assertion cannot

be reconciled with the plain constitutional text. Article 11, 5 gives the Civil

Service Commission only the power to regulate conditions of employment. The

legislative power over conditions of employment, for both public and private

workers, remains vested in the Legislature under article 4, 48.

Application of 4a is relatively simple. PERA cannot apply to the state

classified civil service where the Commission has exclusive authority (with the

exception of resolving disputes with State Troopers). But PERA can and does apply

where the Legislature has authority over the state classified civil servicein

article 4, 49to enact laws relative to conditions of employment, and in article 4,

2 to make laws of general applicability. Applying this plain language, PERA does

not apply to dispute resolution in the state classified civil service, but it must apply

to compulsory union membership and service fees. PA 349 is not to the contrary.

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IV. Defendants Green, Callaghan, LaBrant, Snyder, and Schuette shouldbe dismissed with prejudice based on Plaintiffs failure to state a

claim and the lack of jurisdiction.

The Unions sole allegation against Defendants Nino Erwin Green, Edward

D. Callaghan, and Robert LaBrant is that they are members of MERC, the

Michigan Employment Relations Commission. The Unions indicate that Green,

Callaghan, and LaBrant, in their official capacities, are charged with the

administering and enforcing PERA. (Compl, 9.)

The MERC Commissioners do not dispute that article 4, 48 prohibits the

Legislature from enacting laws providing for the resolution of disputes concerning

public employees in the state classified civil service. Neither do the MERC Commis-

sioners dispute that the Commission has authority to regulate conditions of

employment, once the Legislature has established them. Those two realities leave

the MERC with no role to play when it comes to state classified civil service

employees. Accordingly, the Unions have failed to state a claim against Green,

Callaghan, and LaBrant upon which relief can be granted.

Further, Plaintiff Unions have brought this as an original action pursuant to

MCL 423.210(6), which grants this Court exclusive jurisdiction over any action

challenging the validity of subsection (3), (4), or (5). Subsections (3), (4), and (5) of

10 each articulate substantive rights the Legislature has enacted, and do not

pertain to the dispute-resolution process.

The MERC Commissioners role in enforcing PERA is limited to the dispute-

resolution process, including the mediation of grievances (MCL 423.207), the

adjustment of grievances and election of exclusive representatives (MCL 423.211),

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the certification of elections (MCL 423.212), and the determination of appropriate

collective bargaining units (MCL 423.213). The grant of exclusive jurisdiction to

this Court does not extend to a review of these provisions. So the Court also lacks

subject-matter jurisdiction as to the MERC Commissioners.

The Court also lacks jurisdiction over any claims against Governor Snyder or

Attorney General Schuette based on their publicly expressed opinion that PA 349

applies to the state classified civil service. Any injunctive relief that precludes such

a challenge would clearly violate the separation-of-powers principles expressed in

article 3, 2 of the 1963 Constitution. Fieger v Cox, 274 Mich App 449, 463, 464;

734 NW2d 602 (2007).

Accordingly, Defendants Green, Callaghan, LaBrant, Snyder, and Schuette

should be dismissed with prejudice.

CONCLUSION AND RELIEF REQUESTED

Defendants respectfully request that the Court (1) expedite this proceeding,

(2) dismiss Defendants Green, Callaghan, LaBrant, Snyder and Schuette for lack of

jurisdiction, and (3) enter a peremptory ruling under MCR 7.205(D)(4), without

further hearing or briefing, that declares 2012 PA 349 applicable to the state

classified civil service.

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Respectfully submitted,

Bill Schuette

Attorney General

John J. Bursch (P57679)Solicitor General

Counsel of Record

Richard A. Bandstra (P31928)

Chief Legal Counsel

s/Ann M. Sherman

Ann M. Sherman (P67762)

Margaret A. Nelson (P30342)

Assistant Attorneys General

Attorneys for Defendants

P.O. Box 30736

Lansing, Michigan 48909

517.373.6434

Dated: March 19, 2013

EIVEDbyMichiganCourtofAppeals

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Documents

Explanation of Schuette's response in Court of Appeals right-to-work challenge