                         STATE OF MICHIGAN

                          COURT OF APPEALS



DETROIT HOUSING COMMISSION,                                       UNPUBLISHED
                                                                  February 2, 2016
              Respondent-Appellee,

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

              Charging Party-Appellant.


Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

     Charging party appeals as of right an order from the Michigan Employment Relations
Commission (“MERC”) dismissing his charge against respondent, the 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 against charging party for
substandard work performance, the second of which resulted in termination of his employment
on May 20, 2009. On March 18, 2011, charging party filed a charge 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 asserted that the 30-day suspension was unfair because DHC
disciplinary guidelines mandated a 5-day suspension for an employee’s first instance of poor
work performance. Regarding the 2009 termination, charging party asserted that he could
disprove DHC’s allegations and that DHC improperly fired him because discipline under the
collective bargaining agreement was intended to correct employees’ performance, not simply
terminate their employment. Additionally, 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 employer with
       terminating me out of retaliation, and discriminating against me because of my
       age and disability. I filed a grievance because the employer claimed that the
       union agreed to a two[-]tier pay system. This is a gross misstatement and given
       time I could have exposed the lies. I was terminated less than three months later.
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        On April 22, 2011, the Administrative Law Judge (ALJ), to whom the case had been
assigned, issued an order directing charging party to show cause why his claim against DHC
should not be dismissed on timeliness grounds and for failure to state a claim under the PERA by
way of reply, charging party wrote a letter to the ALJ, in which 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 was cognizable under the PERA.

        The case lay dormant for nearly two years, until charging party filed a supplemental
position statement on January 10, 2013. The bulk of the statement, both factually and legally,
addressed charging party’s claims against his labor union. Charging 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 sufficiently investigate the case before
firing him, provide him with requested documentation regarding the 2009 incident, and
discipline him fairly and in good faith.

        On December 20, 2013, the ALJ issued his decision and recommended order regarding
charging party’s claims against DHC. According to the ALJ, charging party had misstated
Michigan law when he argued in his April 22, 2011 letter that the 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 barred charging party’s claim because 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. The ALJ noted that the PERA “does
not prohibit all types of discrimination or unfair treatment, nor does the Act provide a remedy for
an employer’s breach of a collective bargaining agreement.” Additionally, the ALJ wrote that
the MERC was not the proper forum for whistleblower claims, allegations 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 violation of the Act.” The ALJ recommended dismissal of the charge.

        On February 6, 2014, charging party filed exceptions to the ALJ’s decision and
recommended order. Regarding the ALJ’s conclusion that his claim was untimely, charging
party asserted that he had first filed a charge against DHC alleging an unfair labor practice on
November 17, 2009—within six months of his firing on May 20, 2009—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 because 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 is devoid of evidence regarding this earlier charge against DHC.


                                                 -2-
As a result, charging party contended that the ALJ erred in finding that the statute of limitations
barred his claim. Charging party also insisted that he was required to exhaust his internal
remedies before filing a charge against DHC; his charge on March 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 exceptions that “a wrongful
termination of a union official is an unfair labor practice because it may discourage union
activity.” In support of this proposition, charging party argued that DHC had “clearly” targeted
him for termination, and that, consequently, his former coworkers were discouraged from
engaging in union activity. To support his claim, charging party 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. The MERC summarized
charging party’s exceptions, then simply noted: “We have reviewed [c]harging [p]arty’s
[e]xceptions and found them to be without merit.” The MERC also 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 proof that would constitute an unfair labor practice against
respondent.

        We review de novo questions of law, including matters of statutory 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 “violate 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 423.201 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, neither party disputes that DHC is a
governmental employer subject to the PERA or that charging party was a member of a labor
union while employed with DHC. Resolution of the issue thus requires interpretation of the
PERA’s provisions.

        The primary purpose of statutory interpretation is to identify and effectuate legislative
intent. Mich Ed Ass’n v Secretary of State (On Rehearing), 489 Mich 194, 217; 801 NW2d 35
(2011). The first step in identifying that intent “is to review the language of the statute itself.
Unless statutorily defined, every word or phrase of a statute should be accorded its plain and
ordinary meaning, taking into account the context in which the words are used.” Krohn v Home-
Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011) (citation and quotation marks
omitted). When the language of a statute is clear and unambiguous, “no further judicial
construction is required or permitted, and the statute must be enforced as written.” Mount

                                                -3-
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 when application of the statute 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 employer 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 with the formation or
       administration of any labor organization. . . . A public employer may permit
       employees to confer with a labor organization during working hours 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 has given testimony
       or instituted proceedings under this act.

       (e) Refuse to bargain collectively 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 organizations; engage in lawful concerted
activities for the purpose of collective negotiation or bargaining or other mutual aid and
protection; or negotiate or bargain collectively with their public employers through
representatives of their own free 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 collective 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 the 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 quotation marks omitted).
Further, “[w]hen a union steward is disciplined for violating job rules and not because of his
position as a union official, the steward cannot look to his union 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 under the PERA has the burden of


                                                -4-
establishing an unfair labor practice.” Org of Sch Administrators & Supervisors, AFSA, AFL-
CIO 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 violation of MCL 423.210.
Charging party does not assert that he was engaged in a protected activity under MCL
423.209(1), nor does he contend that DHC committed any of the actions under MCL 423.210(1)
that would constitute an unfair labor practice under MCL 423.216. Instead, charging party posits
that DHC could be liable under the PERA simply because his firing—which had nothing to do
with union activity—violated the collective bargaining agreement and thereby discouraged
participation in union activities on the part of his ex-coworkers.

        Charging party failed to plead a cognizable claim under PERA. Charging party failed to
plead any facts that could lead the 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 discharge. Further, charging party
failed to plead any facts which could lead to a finding that his rights under PERA were violated
by respondent. Simply put, charging party failed to plead an action 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 no 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 to 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 not 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 controversy gives rise to both
contractual and statutory claims” and that a party must seek relief 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 material error of law in the MERC’s implicit holding that an unfair
labor practice under the PERA is limited to an employer’s conduct under MCL 423.210. Branch
Co Bd of Comm’rs, 260 Mich App at 193.

        Additionally, charging party contends that the MERC erred in dismissing his charge
because he raised a proper hybrid claim and supported it with evidence that DHC breached the
collective bargaining agreement. We review de novo a trial court’s decision regarding summary
disposition. See Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 523; 854 NW2d 152
(2014). The Michigan Administrative 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 disposition motion under MCR
2.116(C)(8), we may apply by analogy 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 development could justify the
plaintiff’s claim for relief.” Id. (citation and quotation marks omitted).

                                                -5-
        Inasmuch as charging party classifies his claim as a “hybrid” claim—analogous to a
federal § 301 action—it is appropriate to look to federal precedent 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 guidance to . . . [construction of] the analogous provisions of the
NLRA by the National Labor Relations Board . . . and the Federal 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 employee may not maintain
an action against his employer for an alleged breach of a collective bargaining agreement where
the employee has not first exhausted the grievance and arbitration procedures established under
the collective bargaining agreement upon which he bases his suit.” Pompey v Gen Motors Corp,
385 Mich 537, 560; 189 NW2d 243 (1971). An exception to this rule, 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 exhausted 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 court, rather than the NLRB, to hear
claims involving conduct that the NLRA arguably protects or prohibits. LaBuhn v Bulkmatic
Transp Co, 865 F2d 119, 121 (CA 7, 1988). Classifying a claim as a hybrid/§ 301 action,
however, fails to enlarge the jurisdiction of the NLRB or the MERC 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 and 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 survive summary disposition, Knoke v East Jackson Pub Sch Dist,
201 Mich App 480, 485; 506 NW2d 878 (1993). While charging party also filed a complaint in
circuit court, we note that in lieu of filing that claim as a hybrid/§ 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 423.210. MCL 423.216. Review of the
record reveals that charging party alleged that DHC fired him for “malicious” reasons including
his status as a potential whistleblower, age, and disability, but, again, his pleadings failed to
demonstrate that his termination constituted an unfair labor practice as defined by the PERA.
MCL 423.210. Consequently, no factual development could justify 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 185(a), an employee may
concurrently sue his or her labor union for a breach of the duty of fair representation and his or
her employer for a breach of the collective bargaining agreement. See Murad v Prof and Admin
Union Local 1979, 239 Mich App 538, 542-543; 609 NW2d 588 (2000).


                                                -6-
        Having decided that charging party failed to raise a legally sufficient issue under PERA,
and therefore all his claims against respondent were properly dismissed on their merits, we need
not address charging party’s contention that his claims were brought within the applicable statute
of limitations.

       Affirmed.



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




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