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### STATE OF MICHIGAN

COURT OF APPEALS

DETROIT HOUSING COMMISSION,

Respondent-Appellee, UNPUBLISHED February 2, 2016

v No. 323453 Michigan Employment Relations
Commission NEIL SWEAT, LC No. 11-000799

Charging Party-Appellant.

Before: S HAPIRO , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

.
Charging party appeals as of ri ght an order from the Michigan Employment Relations Commission (“MERC”) dismissing hi s charge against respondent, t he Detroit Housing Commission (“DHC”). For the reasons set forth in this opinion, we affirm.

I. BACKGROUND.

This case arises out of two disciplinary actions DHC levied ag ainst charging party for substandard work performance, t he second of which resulted in t ermination of his employment on May 20, 2009. On March 18, 2011, charging party filed a cha rge with the MERC against DHC, alleging that his termination was wrongful and constituted an unfair labor practice. Charging party alleged that DHC fired him without just cause, a violation of the collective bargaining agreement. Regarding his 2008 suspension, charging party disputed the merits of all four disciplinary grounds and as serted that the 30-day suspensi on was unfair because DHC disciplinary guidelines mandated a 5-day suspension for an empl oyee’s first instance of poor work performance. Regarding the 2009 termination, charging par ty asserted that he could disprove DHC’s allegations and th at DHC improperly fired him be cause discipline under the collective bargaining agreement was intended to correct employe es’ performance, not simply terminate their employment. A dditionally, charging party wrote the following:

There is evidence to suggest that the employer targeted me for termination for malicious reasons. Therefore, I am also charging the emplo yer with terminating me out of retaliation, and discriminating against m e because of my age and disability. I filed a grievance because the employer c laimed that the union agreed to a two[-]tier pay system. This is a gross misst atement and given time I could have exposed the lie s. I was terminated less than three months later.-2- On April 22, 2011, the Administrative Law Judge (ALJ), to whom the case had been assigned, issued an order directing charging party to show caus e why his claim against DHC
should not be dismissed on time liness grounds and for failure t o state a claim under the PERA by way of reply, charging party wrote a letter to the ALJ, in whic h he asserted that his claim was timely because he “was required to seek a remedy from my union before I could file a charge against my employer and my union.” Importantly, charging party did not address the question of whether his claim against DHC w as cognizable under the PERA.

The case lay dormant for nearly two years, until charging part y filed a supplemental position statement on January 10, 2013. The bulk of the statem ent, both factually and legally, addressed charging party’s claims against his labor union. Cha rging party devoted less than a full page to his claim against DHC, categorically stating that “just and proper cause to terminate his employment did not exist” because DHC failed to sufficientl y investigate the case before firing him, provide him with requested documentation regarding the 2009 incident, and discipline him fair ly and in good faith.

On December 20, 2013, the ALJ issued his decision and recommen ded order regarding charging party’s claims against DHC. According to the ALJ, cha rging party had misstated Michigan law when he argued in his April 22, 2011 letter that t he 6-month PERA statute of limitations period did not begin to run until he had exhausted his internal union remedies. The
ALJ ruled that the statute thus b arred charging party’s claim b ecause DHC had fired him on May 20, 2009, and he did not file a charge until March 18, 2011.

Further, assuming that charging party’s charge was timely, the ALJ held that he had failed to state a claim upon which relief could be granted. Th e ALJ noted that the PERA “does not prohibit all types of discrim ination or unfair treatment, n or does the Act pr ovide a remedy for an employer’s breach of a collective bargaining agreement.” Ad ditionally, the ALJ wrote that the MERC was not the proper forum for whistleblower claims, all egations of discrimination, or other generalized claims of unfair treatment. According to the ALJ, the MERC’s jurisdiction in an employee-employer context was limited to considering whether the employer had interfered with, restrained, coerced, or discriminated against an employee to encourage or discourage union activity. The ALJ concluded that the MERC was “foreclosed from making a judgment on the merits or fairness” of DHC’s actions because charging party had failed to provide a factual basis demonstrating that he “engaged in union activities for which he was subjected to discrimination
or retaliation in viol ation of the Act.” The ALJ recommended d ismissal of the charge.

On February 6, 2014, charging party filed exceptions to the AL J’s decision and recommended order. Regarding the ALJ’s conclusion that his cla im was untimely, charging party asserted that he had first filed a charge against DHC all eging an unfair labor practice on November 17, 2009—within six months of his firing on May 20, 20 09—but that “[t]he employer and the union conspired to get the charge dismissed.” Charging party further explained that “[t]he union had the charge of wrongful termination dismissed b ecause the Judge allowed the union to intervene and take control of my wrongful termination charge against the employer.” 1

1 We note that the ALJ’s record i s devoid of evidence regarding this earlier charge against DHC.-3- As a result, charging party contended that the ALJ erred in fin ding that the statute of limitations barred his claim. Charging party also insisted that he was req uired to exhaust his internal remedies before filing a charge against DHC; his charge on Marc h 18, 2011, was thus timely
because he had not exhausted his internal union remedies until earlier that month.

For the first time, charging party also asserted in his except ions that “a wrongful termination of a union official is an unfair labor practice bec ause it may discourage union activity.” In support of this proposition, charging party argu ed that DHC had “clearly” targeted him for termination, and that, consequently, his former coworke rs were discouraged from engaging in union activity. To su pport his claim, charging par ty alleged that no current DHC employees were willing to take his former place as chief union steward “for the fear of the employer targeting them for termination.”

On August 14, 2014, the MERC issued its decision and order. T he MERC summarized charging party’s exceptions, then simply noted: “We have review ed [c]harging [p]arty’s [e]xceptions and found them to be without merit.” The MERC als o wholly adopted the ALJ’s findings of fact and his legal reasoning and dismissed charging party’s claims on timeliness grounds and for failure to state a claim under the PERA. This appeal then ensued.

II. ANALYSIS.

On appeal, charging party contends that the MERC decision was erroneous because charging party brought forth proo f that would constitute an unf air labor practice against respondent.

We review de novo questions of law, including matters of statu tory interpretation.
Pontiac Sch Dist v Pontiac Ed Ass’n , 295 Mich App 147, 152; 811 NW2d 64 (2012). We will not disturb the MERC’s legal determinations unless they “violat e a constitutional or statutory provision or they are based on a substantial and material error of law.” Branch Co Bd of Comm’rs v Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America,
UAW , 260 Mich App 189, 193; 677 NW2d 333 (2003).

The Michigan Public Employment Relations Act (PERA), MCL 423.2 01 et seq. , governs public labor relations in Michigan. Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit , 482 Mich 18, 28; 753 NW2d 579 (2008). As a threshold matter, neith er party disputes that DHC is a governmental employer subject to the PERA or that charging part y was a member of a labor union while employed with DHC. Resolution of the issue thus re quires interpretation of the PERA’s provisions.

The primary purpose of statutory interpretation is to identify and effectuate legislative
intent. Mich Ed Ass’n v Secretar y of State (On Rehearing) , 489 Mich 194, 217; 801 NW2d 35 (2011). The first step in identifying that intent “is to revie w the language of the statute itself. Unless statutorily defined, every word or phrase of a statute s hould be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Krohn v HomeOwners Ins Co , 490 Mich 145, 156; 802 NW2d 281 (2011) (citation and quotatio n marks omitted). When the language of a statute is clear and unambigu ous, “no further judicial construction is required or permitted, and the statute must be enforced as written.” Mount-4- Pleasant Pub Sch v Mich AFSCME Council 25 , 302 Mich App 600, 608; 840 NW2d 750 (2013) (citation and quotation marks omitted). A statutory provision is ambiguous when it is “capable of being understood by reasonably well-informed persons in two different senses,” such as when a word has an unclear meaning or w hen application of the statut e to facts renders the statute’s correct application uncertain. Peterson v Magna Corp , 484 Mich 300, 329; 773 NW2d 564 (2009).

MCL 423.216 provides that “[v]iolations of section 10 shall be deemed to be unfair labor practices remediable” by the MERC under the PERA. MCL 423.210, meanwhile, provides the following, in relevant part:

(1) A public employer or an officer or agent of a public employ er shall not do any of the following:

(a) Interfere with, restrain, or coerce public employees in the exercise of their rights guaranteed in section 9.

(b) Initiate, create, dominate, contribute to, or interfere wit h the formation or administration of any labor organ ization. . . . A public emplo yer may permit employees to confer with a labo r organization during working ho urs without loss of time or pay.

(c) Discriminate in regard to hire, terms, or other conditions of employment to encourage or discourage membership in a labor organization.

(d) Discriminate against a public employee because he or she ha s given testimony or instituted proceedings under this act.

(e) Refuse to bargain collectivel y with the representatives of its public employees, subject to section 11.

The “rights guaranteed in section 9” referenced in MCL 423.210( 1)(a) include employees’ rights to “[o]rganize together or form, join, or assist in labor organ izations; engage in lawful concerted activities for the purpose of collective negotiation or bargain ing or other mutual aid and protection; or negotiate or barga in collectively with their pub lic employers through representatives of their own fr ee choice[,]” or to refrain from participating in any of the same activities. MCL 423.209(1).

Germane to this matter, PERA “ does not proscribe breach of a c ollective bargaining agreement or ‘unfairness’; an employee may be terminated for a good reason, bad reason, or no reason at all[,]” so long as the employer does not terminate th e employee for exercising rights guaranteed by MCL 423.209. Ingham Co v Capitol City Lodge No 141 of the Fraternal Order of
Police , 275 Mich App 133, 143; 739 NW2d 95 (2007) (citation and quota tion marks omitted). Further, “[w]hen a union steward is disciplined for violating j ob rules and not because of his position as a union official, the steward cannot look to his un ion status for protection[,]” even if engaging in otherwise protected activity under the PERA. Id . at 146 (citation and quotation marks omitted). Ultimately, “[t]he party asserting a claim und er the PERA has the burden of-5- establishing an unfai r labor practice.” Org of Sch Administrators & Supervisors, AFSA, AFLCIO v Detroit Bd of Ed , 229 Mich App 54, 64; 580 NW2d 905 (1998).

Contrary to charging party’s argument on appeal, an employer’s contract breach cannot constitute an unfair labor practice under the PERA absent a vio lation of MCL 423.210. Charging party does not assert that he was engaged in a protect ed activity under MCL 423.209(1), nor does he contend that DHC committed any of the a ctions under MCL 423.210(1)
that would constitute an unfair labor practice under MCL 423.21 6. Instead, charging party posits that DHC could be liable under the PERA simply because his firi ng—which had nothing to do with union activity—violated the collective bargaining agreemen t and thereby discouraged participation in union activitie s on the part of his ex-coworke rs.

Charging party failed to plead a cognizable claim under PERA. Charging party failed to plead any facts that could lead t he ALJ, the MERC or this Court to make a finding that he was engaged in any type of protected activity at the time of his di scharge. Further, charging party failed to plead any facts which could lead to a finding that hi s rights under PERA were violated by respondent. Simply put, charg ing party failed to plead an a ction under PERA.

Moreover, this Court has explicitly held that an employer may discharge an employee at will, for violation of workplace rules, for unfair reasons or n o reason at all, or even through a breach of the collective bargaining agreement without bringing the discharge under the PERA’s purview. Ingham Co , 275 Mich App at 143, 147. Further, charging party was free t o pursue his claim that DHC violated the collective bargaining agreement—he simply was required to pursue
it in a venue other than the MERC because his termination did n ot implicate the PERA. See Bay City Sch Dist v Bay City Ed Ass’n, Inc , 425 Mich 426, 436-440; 390 NW2d 159 (1986) (holding that the MERC and courts have concurrent jurisdiction when “a c ontroversy gives rise to both contractual and statutory claims” and that a party must seek re lief in the proper venue despite the inefficiency of a bifurcated process). Accordingly, we fail to discern a constitutional or statutory
violation or a substantial and ma terial error of law in the MER C’s implicit holding that an unfair labor practice under the PERA is limited to an employer’s condu ct under MCL 423.210. Branch Co Bd of Comm’rs , 260 Mich App at 193.

Additionally, charging party cont ends that the MERC erred in d ismissing his charge because he raised a proper hybrid claim and supported it with e vidence that DHC breached the collective bargaining agreement. We review de novo a trial cou rt’s decision regarding summary disposition. See Landin v Healthsource Saginaw, Inc , 305 Mich App 519, 523; 854 NW2d 152 (2014). The Michigan Administra tive Code provides grounds for summary disposition in administrative proceedings, including failure to state a claim for relief. Mich Admin Code R 423.165(2)(d). Because this provision parallels a summary disp osition motion under MCR 2.116(C)(8), we may apply by anal ogy the established standards for reviewing motions under
that subrule.

“A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted.” Landin , 305 Mich App at 523 (citation and quotation marks omitted). “Summary disposition under subrule (C)(8) is appropriate if no factual d evelopment could justify the plaintiff’s claim for relief.” Id . (citation and quotation marks omitted).-6- Inasmuch as charging party classifies his claim as a “hybrid” claim—analogous to a federal § 301 action—it is appr opriate to look to federal prece dent where necessary to resolve the
issue. 2 See Demings v City of Ecorse , 423 Mich 49, 53; 377 NW2d 275 (1985) (noting that Michigan courts may “look for gui dance to . . . [construction o f] the analogous provisions of the NLRA by the National Labor Rela tions Board . . . and the Federa l courts” because the PERA is modeled on the National Labor Relations Act). See, also, Goolsby v Detroit , 419 Mich 651, 660 n5; 358 NW2d 856 (1984).

Generally speaking, Michigan courts follow the rule that “an e mployee may not maintain an action against his employer for an alleged breach of a colle ctive bargaining agreement where the employee has not first exhausted the grievance and arbitrat ion procedures established under the collective bargaining agreement upon which he bases his sui t.” Pompey v Gen Motors Corp

, 385 Mich 537, 560; 189 NW2d 243 (1971). An exception to this r ule, however, is a so-called hybrid/§ 301 action, in which an aggrieved employee may, under certain conditions, allege both a breach of the duty of fair representation by his or her labor union and a breach of the collective bargaining agreement by the employer before he or she has exhau sted internal remedies. DelCostello v Int’l Brotherhood of Teamsters , 462 US 151, 164-165; 103 S Ct 2281; 76 L Ed 2d 476 (1983). Hybrid/§ 301 suits thus allow a federal district c ourt, rather than the NLRB, to hear claims involving conduct that the NLRA arguably protects or pro hibits. LaBuhn v Bulkmatic Transp Co , 865 F2d 119, 121 (CA 7, 1988). Classifying a claim as a hybr id/§ 301 action, however, fails to enlarge the jur isdiction of the NLRB or the M ERC or permit either organization to hear a claim that does not involve an unfair labor practice as defined by the NLRA or the PERA. See 29 USC 160; MCL 423.210.

Even presuming charging party presented a prima facie example of a hybrid/§ 301 claim because he raised the issues of DHC’s alleged contract breach a nd his union’s alleged breach of the duty of fair representation in his pleadings, he could have pursued the hybrid claim in circuit
court, see LaBuhn , 865 F2d at 121, where he would have been required to present sufficient facts on both aspects of the claim to s urvive summary disposition, Knoke v East Jackson Pub Sch Dist

, 201 Mich App 480, 485; 506 NW2d 878 (1993). While charging par ty also filed a complaint in circuit court, we note that in lieu of filing that claim as a h ybrid/§ 301 claim, charging party attempted to initiate the claim in the MERC, whose jurisdiction over claims against an employer is restricted to unfair labor practices that violate MCL 423.21 0. MCL 423.216. Review of the record reveals that charging party alleged that DHC fired him f or “malicious” reasons including his status as a potential whistle blower, age, and disability, b ut, again, his pleadings failed to demonstrate that his termination constituted an unfair labor pr actice as defined by the PERA. MCL 423.210. Consequently, no factua l development could justif y his claim for relief under the PERA, and the MERC correctly dismissed his charge against DHC. Landin , 305 Mich App at
523.

2 Under § 301(a) of the Labor Management Relations Act, 29 USC 1 85(a), an employee may concurrently sue his or her labor union for a breach of the dut y of fair representation and his or her employer for a breach of the collective bargaining agreemen t. See Murad v Prof and Admin
Union Local 1979 , 239 Mich App 538, 542-543; 609 NW2d 588 (2000).-7- Having decided that charging party failed to raise a legally s ufficient issue under PERA, and therefore all his claims against respondent were properly d ismissed on their merits, we need not address charging party’s contention that his claims were br ought within the applicable statute
of limitations.

Affirmed.

/s/ Douglas B. Shapiro
/s/ Peter D. O'Connell /s/ Stephen L. Borrello