State of Michigan

Civil Service Commission

Hearings, Employee Relations, And Mediation

 

 

 

Stennis George

HERM 2010-018

and

Mailing Date:

March 29, 2010

Michigan Corrections Organization

Ref. No.:

2009-04497

Unfair Labor Practice Decision

Hearing Examiner:    William P. Hutchens

 

Representatives:

 

Charging Party:

Stennis George, In Pro Per

 

Respondent:

J. Martin Foldie, Staff Representative

 

 

Case Summary

Key Word(s):

Duty of Fair Representation

 

The respondent union, by assenting to the decision of the employer to allow Resident Unit Officer (RUO)-Es (E10s) negatively impacted by the gender equity lawsuit in question to retain their classification and level despite being reassigned to custody assignments, did not actually enter into an agreement with the employer, though both sides have loosely viewed it as such.  The “agreement” allowed affected RUO-Es (E10s) to retain their class and level (and compensation) as long as they remained at their employing institution, on their same shift.  When the Scott facility closed, the charging party chose to bump to the Huron Valley Women’s Facility (HVWF), although through a subsequent voluntary transfer he wound up at the Ryan Correctional facility, a male facility.  By bumping to HVWF, he was no longer entitled to work as a housing unit officer, so had to demote upon the bump to a Corrections Officer-E (E9).  Had he chosen Ryan as his bump option, being a male facility, he may have been able to bump as a housing unit officer and may have been able to retain his RUO-E (E10) status.  Based upon all of the facts in the record and a review of applicable case law, I cannot find that the respondent union, in processing the grievance or in its conduct regarding the “handshake agreement” with the employer, violated its duty to represent all members of the bargaining unit.  The charge is therefore dismissed.

This CASE SUMMARY is not an official part of the decision.

 

Pursuant to the provisions of the Civil Service Commission’s Employee-Employer Relations Rules (ERR) and the attendant regulation on Unfair Labor Practices, this matter came for hearing ^2on December 29, 2009, at the Huron Valley Women's Facility, 3201 Bemis Road, Ypsilanti, Michigan.  The parties were given full opportunity to present testimonial and documentary evidence, examine and cross-examine witnesses, and present oral argument.  Written closing briefs were submitted by February 8, 2010, at which point the record was closed.

 

The Issue

Did the respondent Michigan Corrections Organization violate its duty to fairly represent the charging party?

 

The Facts

The charging party was employed at the Robert Scott Correctional Facility, a facility that housed female inmates.  At the Scott facility, the charging party was employed as a Resident Unit Officer (RUO)-E (E10), but was being worked as a Corrections Officer-E (E9).  The charging party and others similarly situated had formerly worked as housing unit officers, (RUO-E (E10) but as a result of a lawsuit, they were prohibited from working in the female housing units.  The Department of Corrections reassigned them to positions typically classified as Corrections Officer-E (E9), but voluntarily continued to classify and pay them as RUO-Es (E10s) as long as they chose to continue working at the Scott facility.  If employees in a situation such as that of the charging party were able to find a position at another institution where they could work as housing unit officers, they could transfer to those positions and retain their RUO-E (E10) compensation. 

 

The Robert Scott Correctional Facility was closed in the spring of 2009.  Prior to the facility being closed, the charging party and others similarly situated had to fill out bumping preference forms.  The charging party, in filling out his bumping preference form, chose as his first preference a bump to the Huron Valley Women’s Correctional Facility in Ypsilanti.  His second choice was the Mound Correctional Facility in Detroit and his third choice was Camp Whitmore Lake.  When the department completed its bump chains the charging party was granted his first choice, the bump to Huron Valley Women’s Facility.  Prior to the completion of the exercise of his employment preference rights, but after he had been assigned to the Huron Valley Women’s Facility, he was able to find another employee at the Ryan Correctional Facility with whom he was able to voluntarily exchange positions.  The charging party therefore wound up at the Ryan Correctional Facility, having never actually bumped to the Huron Valley Women’s facility, except as a paper transaction.  When he exercised his employment preference, it was into a Corrections Officer (C/O)-E (E9) position, which paid $1.42 per hour less than his former classification.  The reason for the bump to the C/O-E (E9) position was that at Huron Valley Women’s facility, similar to the closed Scott facility, as the result of the lawsuit, male officers were prohibited from working in female housing units.  They therefore could not be classified as Resident Unit Officer-Es (E10s).

 

^3There remained officers at the Huron Valley Women’s Correctional Facility who were classified as Resident Unit Officer-Es (E10s) who were working as Corrections Officer-Es (E9s).  They were misclassified for the same reason that the charging party had been misclassified following the lawsuit while he remained employed at the Scott facility.  As long as they remained at the Huron Valley facility, they were allowed to retain their RUO-E (E10) classification by the Michigan Department of Corrections (MDOC).  This was an action that the department voluntarily undertook with a “handshake” agreement with the MCO, according to the testimony of MCO President Tom Tylutki.  Tylutki indicated that this was nothing that the MCO felt that it had a right to or that it could enforce, but that it was something that benefitted the affected employees following the lawsuit as long as they remained in their positions on their same shifts at those facilities and the union was not going to do anything to undercut the benefit of the higher wages those employees were able to earn as long as they remained in those positions.  Tylutki stated that the agreement was set forth orally by MDOC Deputy Director Dennis Straub as well as human resources administrators Tony Lopez and Gary Manns.  (Tr., p. 123)

 

Tylutki testified that he understood that the positions in question had been “frozen” using Civil Service terminology, meaning that they were recognized as being over classified and that when and if they were filled in the future after being vacated, they would be reviewed for the propriety of their classification.  He testified that he did not know the normal procedure that the MDOC or Civil Service follows when it freezes a position.  He offered his belief that Civil Service would have to approve a position to be frozen, but stated that had the union pursued the technicalities of the matter, there was a good possibility that the charging party and others similarly situated would have lost their RUO-E (E10) pay.  It was the belief of the respondent that the MDOC was being more than gracious in allowing the affected male employees to retain their RUO-E (E10) pay and the union did not want to do anything that would cause them to lose it, especially in light of the State’s financial crisis.

 

Tylutki testified that he had spoken to the charging party on the telephone regarding the issue of whether an RUO who left Scott and went to Ryan or Mound (male facilities) could retain their RUO-E (E10) classification.  He recalled telling the charging party that they could retain that classification.  He also told the charging party (Tr., p. 133) that if he bumped to Huron Valley Women’s Correctional Facility, he would no longer be an RUO-E (E10).  Tylutki testified that the charging party knew that as well because with 23 years of employment, he was at the top of the seniority list, so he was going to receive whatever bump he chose.  He recalled telling the charging party that due to the reorganization of the Huron Valley Women’s Correctional Facility, male RUO-Es (E10s) at the former Huron Valley Men’s facility would not keep their RUO-E (E10) level, while RUO-Es (E10s) at the Huron Valley Women’s Correctional Facility would keep their RUO-E (E10) status.

 

^4Under questioning from the charging party, Tylutki stated that a handshake agreement such as this one can supersede the terms of the collective bargaining agreement, as was evidenced by the fact that the charging party for a number of years benefitted from RUO-E (E10) pay that he received while actually working as a Corrections Officer-E (E9).

 

Gregory Crouch, a former Chief Steward for the respondent union at the now-closed Western Wayne Correctional Facility, confirmed that male officers at that facility, following the lawsuit, were removed from the housing unit, retained their RUO-E (E-10) status, and worked as Corrections Officer-E (E-9).  If they voluntarily transferred to a male facility where they could work as a RUO-E (E10), they could retain that class and level, but if they left the facility on any other basis, they would demote to a Corrections Officer-E (E9).  Crouch testified that officers who left Western Wayne when it was closed and were involuntarily transferred to Huron Valley Women’s facility when it opened were allowed to retain their RUO-E (E10) status because they had not voluntarily left the Western Wayne facility.  (Tr., p. 22)  Huron Valley at that point had both a male side and a female side.  Crouch was one of the individuals involuntarily transferred from Western Wayne to Huron Valley Women’s facility.  He was a Corrections Officer-E (E9).  He became the president of the local union in 2004.  He attended labor-management meetings with MCO Executive Director Mel Grieshaber and MCO President Tylutki regarding the reorganization of the Huron Valley facility into one complex.  When the two facilities combined, the male RUO-Es (E10s) from the Huron Valley Men’s facility retained their status for a time, Crouch stated, then received notices of demotion to Corrections Officer-E (E9).  Crouch stated that he grieved those demotions since there were still some male prisoners housed at the facility.  He stated that they received their notices of demotion after the male RUO-Es (E10s) who had been demoted to C/O-Es (E9s) from the closed Scott facility came over to Huron Valley Women’s facility.

 

Crouch stated that the MCO refused to move the grievance that he filed beyond Step-3 of the grievance procedure, claiming that the male officers in question were prohibited from working in housing units due to a bona fide occupational qualification issue.

 

On cross-examination, Crouch stated that the male prisoners still at the Huron Valley facility were housed in the infirmary.  He stated that he had been told that the infirmary was scheduled to be closed in October 2009 and the male prisoners moved elsewhere, but as of the date of this hearing in December 2009 they were still there, so he was uncertain that the infirmary was of a temporary nature. 

 

Crouch stated that the male RUO-Es (E-10s) who were involuntarily transferred from the Western Wayne facility when it closed remain at the Huron Valley Women’s facility as RUO-Es (E-10s).  Those that bumped from the Scott facility when it closed were demoted to Corrections Officer-Es (E-9s).

 

^5Jeffrey Foldie, a staff representative for the respondent union, testified that there was no agreement between the union and the employer allowing the RUO-Es (E10s) negatively impacted by the lawsuit in question to retain their pay while working as C/O-Es (E9s).  He stated that the term “agreement” would connote something that was bargained between the union and the employer.  His understanding of what happened following the lawsuit was that while the employer moved the male RUO-Es (E10s) out of the female housing units, it voluntarily continued to pay them at that class and level as long as they remained at their respective institutions.  He viewed it as a gift, rather than an agreement.  (Tr., p. 48)  He did not view it as a violation of the collective bargaining agreement to allow one group to retain such compensation while another group loses it in the same classification.  He stated that it had nothing to do with the employee’s classification.  He testified that it was a matter of the classification into which the employee would transfer when they left the institution in question that would determine their ultimate compensation.  (Tr., p. 48)

 

Tony Lopez, the MDOC human resources administrator, testified as to a “decision” that was made by the MDOC to minimize the impact upon the affected male RUO-Es (E10s) following the lawsuit in question.  The decision was to allow the affected employees to retain their class, level and pay rate as long as they remained at their employing facility.  If they voluntarily transferred to a male facility, they could transfer at the same class and level because such positions were available at male facilities.  No such positions were available at female facilities, however.

 

Lopez testified that it would have been impossible for an employee such as the charging party to bump into an existing RUO-E (E10) position at a female facility because those positions were “frozen” in recognition that they were no longer functioning as housing unit officers.  He was uncertain as to whether all of the paperwork on all of the positions had been processed at the facility level in order to freeze those positions, but indicated that in the event it had not, in the event of a bumping situation, he would make certain that the paperwork was filed, because the department’s decision had been to protect those male officers at each of the facilities at which they worked as long as they continued to work there.  He stated that if he found a non-frozen position in a bump chain, he would have the facility personnel office correct that situation by freezing it in anticipation of the bump.  Employees cannot exercise employment preference into positions which are known to be misclassified, and such positions, as is the case with the affected RUO-Es (E10)s, are to be frozen.

 

Mel Grieshaber, the executive director of the Michigan Corrections Organization, testified that the union had filed a lawsuit on behalf of its officers regarding the gender equity issue, had pursued it to the United States Supreme Court, and had lost.  The MDOC advised the union that it would proceed with removing the male officers from female housing units.  Grieshaber stated that at that point, there was nothing that the union could do about the employee’s removal from the housing unit except to work with the employer to attempt to mitigate the impact upon the ^6affected employees, which it did.  The employer voluntarily agreed to allow the affected employees to retain their RUO-E (E10) classification and compensation as long as they remained at the facility.  He stated that the union was pleased with this result but the union was also advised by the employer that if the employees voluntarily left the facility at which they worked or if the facility ceased to exist, they would lose the special designation.  (Tr., pp. 75-76)

 

At the time of his bump, the charging party learned that several other employees he believed to be similarly situated had been allowed to bump from Scott to Ryan with no loss of their RUO-E (E10) class and level.  He learned that male Resident Unit Officers at Huron Valley Women’s Correctional Facility would retain their RUO-E (E10) classifications, even though they were working as Corrections Officer-Es (E9s).

 

The charging party believed that since he was classified as an E10 level employee that he should have been able to exercise employment preference at the E10 level, especially given his seniority.

 

Opinion

The issue to be decided here is whether the respondent union, by failing to advance the charging party’s grievance to arbitration, failed in its duty to fairly represent all members of the bargaining unit.

 

This case involves a number of special circumstances arising out of the gender equity lawsuit in question.  The facts presented in the record, given the various personnel transactions involved, are confusing, and the undersigned, both in creating the record at the hearing and in setting for the facts of the case above, has attempted to clarify those confusing factual scenarios.

 

The essence of what happened to the charging party in this case is as follows:  The charging party, following the conclusion of the lawsuit in question, was removed from his housing unit assignment at the Scott Correctional Facility, but was allowed to retain his Resident Unit Officer-E (E10) classification and compensation.  The reason for that has been loosely termed as an “agreement” or a “handshake agreement” between the respondent union and the Michigan Department of Corrections.  The only “agreement” involved, however, from my review of this record, was the respondent union’s assent to the gift given to the affected male RUO-Es (E10s) by the employer.  The respondent union had already gone to bat for these employees by filing and ultimately losing the lawsuit in question, and the employer, by allowing the affected employees to retain their classification and level and their compensation while they remained at their employing institution, was offering to mitigate the impact on these employees of the failed lawsuit.  This was something that the union would have been irresponsible to contest.  It allowed employees such as the charging party time to find another RUO-E (E10) position into which they could transfer, at a prison for male inmates, so that they could retain their class and level ^7permanently if they chose to do so.  In the short run, it allowed them to lose no pay as a result of having lost their housing unit assignments and having been demoted to Corrections Officer-E (E9) assignments.

 

In the case of the charging party, when the Scott facility was to be closed, he voluntarily selected as his first bump option the Huron Valley Women’s facility.  Had he selected a male prison instead, with his seniority, in all likelihood he would have been able to bump at the RUO-E (E10) level and he would have lost no compensation.  Due to his seniority, however, and due to his choice of bumping locations, which he received as a result of his seniority, he had to demote to a Corrections Officer-E (E9).  The same would have been true had the Huron Valley Women’s facility been the one to close and had an employee there similarly situated to the charging party made a bumping choice similar to his.  That employee, too, would have lost his RUO-E (E10) status and would have bumped to a Corrections Officer-E (E9) at Scott facility.

 

The charging party, as noted above, did not end up at HVWF.  Shortly after the bump chain was announced, he changed his mind and wanted instead to go to the Mound/Ryan complex in Detroit.  He spoke to Human Resources Administrator Tony Lopez, who told him to seek a volunteer to switch with him.  He found such a volunteer, but still had to go to Ryan as a C/O-E (E9) because he had bumped to HVWF as a C/O-E (E-9).  As was indicated above, had the charging party made Mound or Ryan his first choice, he may well have been able to bump to those facilities as a RUO-E (E10), as did other employees whom he has cited as examples of unfair differential treatment.  The treatment of those employees was in fact different, but it was based upon the choice that the charging party made when he filled out his bumping preference sheet.  (Joint Exhibit #6)

 

The charging party made an issue of the union’s failure to meet with the employer regarding his demotion.  The contractual language that he cited in support of the union’s obligation to meet with the employer regarding demotion, when read in context of the entire sentence, clearly refers to disciplinary demotions, not to demotions resulting from the exercise of employment preference rights.

 

The charging party appealed the decision of the MCO Grievance Committee not to arbitrate his grievance to the MCO Executive Board.  He was not allowed a personal appearance before the Executive Board on this appeal.  President Tylutki’s testimony indicated that employees pursuing disciplinary grievances are allowed such personal appearances before the Executive Board, due to the volume of grievances that the Board has to review on a monthly basis.  He indicated that the Board heard from representative Foldie regarding this grievance and also had the entire grievance filed presented to them for review prior to their meeting.  There was nothing in that review that convinced them that the matter should be pursued to arbitration.

 

^8The duty to fairly represent all employees in the bargaining unit is set forth in Civil Service Rule 6-8.1, Rights of Exclusive Representatives, which states in pertinent part as follows:

An exclusive representative (1) has the duty of fair representation of all employees in the unit, . . .

The language set forth above codifies for state classified employees a duty created by case law litigated pursuant to the National Labor Relations Act (NLRA) and the Michigan Public Employment Relations Act (PERA).  The issue of whether an employee has the right to have his or her grievance processed to arbitration has been well litigated under the NLRA, PERA and in this forum.  Hearing Examiner Middleton, in Mason v MCO, HERM 095-98, found as follows:

The charging party is covered by a contract containing provisions governing the respondent’s duties and responsibilities in handling the grievances of their members.  The language of the contract clearly puts the decision whether to pursue a grievance filed by a member to pre-arbitration and arbitration in the hands of this union.  It is not a decision available to the Charging Party.

Under federal case law, the seminal test for violation of the duty of fair representation in the failure of a union to process a grievance to arbitration is found in Vaca v Sipes, 386 US 171, 64 LRRM 2369 (1967) in which the U.S. Supreme Court recognized the union’s status as the exclusive bargaining agent as the source of the duty to fairly represent all members of the bargaining unit.  In Vaca, the court stated that a breach of the duty of fair representation occurs:

...only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith…

The Michigan Supreme Court in 1973 ruled in Lowe v Hotel Employees Union, 389 Mich 123, 146-147; 205 NW2d 167 (1973), that:

In the area of grievances, the courts have held that the union has considerable discretion to decide which grievances shall be pressed and which shall be settled.  It has been said that the union has latitude to investigate claimed grievances by members against their employers, and has the power to abandon frivolous claims.  Vaca v. Sipes, (citations omitted).

It has been held that an individual member does not have the right to demand that his grievance be pressed to arbitration, and the union “obviously” is not required to carry every grievance to the highest level, but must be permitted to assess each with a view to individual merit (citations omitted).

Having regard for the good of the general membership, the union is vested with discretion which permits it to weigh the burden upon contractual grievance machinery, the amount at stake, the likelihood of success, the cost, even the desirability of winning the award, against those considerations which affect the membership as a whole.

^9In doing so, the courts have said that the union must act without fraud, bad faith, hostility, discrimination, arbitrariness, caprice, gross nonfeasance, collusion, bias, prejudice, willful, wanton, wrongful and malicious refusal, personal spite, ill will, bad feelings, improper motives, misconduct, overreaching, unreasonable action or gross abuse of its discretion in processing or refusing or failing to process a member’s grievance.  Lowe at pp. 146-147

Eleven years later, the Michigan Supreme court again addressed the issue of the duty of fair representation in Goolsby v City of Detroit, 419 Mich 651, 358 NW2d 856 (1984), holding that:

…(1) PERA impliedly imposes on labor organizations representing public sector employees a duty of fair representation; (2) bad-faith conduct is not always required to make out a breach of that duty; (3) the conduct prohibited by the duty of fair representation includes (a) impulsive, irrational or unreasoned conduct, (b) inept conduct undertaken with little care or with indifference to the interests of those affected, (c) the failure to exercise discretion, and (d) extreme recklessness or gross negligence; (4) absent a reasoned, good-faith nondiscriminatory decision not to process a grievance, the failure of a labor organization to comply with collectively bargained grievance procedure time limits constitutes a breach of the duty of fair representation; and (5) in this case, the union’s inexplicable failure to comply with the grievance procedure time limits indicates inept conduct undertaken with little care or with indifference to the interests of plaintiffs, which could have reasonably been expected to foreclose plaintiffs from pursuing their grievance further. (Goolsby, pp 681-682)

The charging party in this case did an admirable job of presenting a confusing fact scenario and it is understandable to the undersigned why he is upset by the fact that he has been demoted to Corrections Officer-E (E9) in the manner in which it happened.  As was noted above, however, it did not have to happen in the fashion that it did.  It happened that way due to the choice made by the charging party on his bumping preference form, and once the bump chain was finalized, there was no way to reconstruct it in order to benefit one person.  Under the case law set forth above, I cannot find that the respondent union, in investigating or processing the charging party’s grievance, or in failing to arbitrate it, or in its representation of bargaining unit members regarding the “handshake agreement” here in issue, in any way violated its duty to fairly represent all members of the bargaining unit.  The unfair labor practice charge is therefore dismissed.

 

 

/S/

 

William P. Hutchens, Hearing Examiner

^10

This decision may be appealed if received by the Civil Service Commission’s Employment Relations Board within 28 calendar days of the mailing date on the face of this decision () as authorized by Civil Service Commission Rule 8-7, Appeal to the Commission.  Instructions and forms for filing an appeal, Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and Filing Documents, can be found at www.mi.gov/erb.  Appeals and inquiries should be addressed to the Employment Relations Board, Michigan Civil Service Commission, Capitol Commons Center, 400 South Pine Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 335-5588; by fax, at (517) 335-2884; or by e-mail to MDCS‑ERB@michigan.gov.

 

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative source of the actual content and format of the decision.