 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Mosaica Academy of Saginaw v. Michigan Education Association6/25/2002
UNPUBLISHED
Mosaica Academy of Saginaw (Mosaica) appeals by right from the Michigan Employment Relations Commission's (MERC) decision and direction of election finding that it was the actual public employer of the employees at issue. We find this matter is controlled by our decision in AFSCME v Dep't of Mental Health, 215 Mich App 1; 545 NW2d 363 (1996), and vacate the MERC decision on the ground of federal preemption in favor of the National Labor Relations Board (NLRB).
A claim of federal preemption is a challenge to subject-matter jurisdiction that may be raised at any time. Id. at 4. MERC decisions are reviewed on appeal pursuant to Const 1963, art 6, ยง 28, and MCL 423.216(e). The MERC's findings of fact are conclusive if they are supported by competent, material, and substantial evidence on the record as a whole, and legal determinations may not be disturbed unless they violate a constitutional or statutory provision or they are based on a substantial and material error of law. MCL 24.306(1)(a), (f); Police Officers Ass'n v Fraternal Order of Police, Montcalm Co Lodge No 149, 235 Mich App 580, 586; 599 NW2d 504 (1999).
In the present case, determining where jurisdiction properly lies requires deciding whether, for the purposes of the National Labor Relations Act (NLRA), appellant Mosaica or Mosaica Education, Inc (MEI) is the actual employer. See AFSCME, supra at 3-6, 12-15. Subject to limited exceptions, when an activity is "arguably" subject to the provisions of the NLRA, states must defer to the exclusive competence of the NLRB. When a party asserts that state proceedings are preempted because the conduct at issue is within the purview of the NLRA, the claim represents a challenge to the subject-matter jurisdiction of the state court or tribunal that must be considered and resolved by the state court. Id. at 5, 14. However, if a party or tribunal shows that the NLRB would clearly decline jurisdiction through analysis of the NLRA and NLRB decisions, a state tribunal or court may hear the case. Id. at 10-11, citing 29 USC 164(c).
There is no question that MEI is not a "state or political subdivision thereof." 29 USC 152(2). In contrast, according to ordinary statutory construction rules, appellant Mosaica is a state or political subdivision because it is a public school academy under Michigan law. Id.; In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); MCL 380.501 et seq.; Council of Organizations & Others for Ed About Parochiaid v Governor, 455 Mich 557, 567-576; 566 NW2d 208 (1997). Therefore, if appellant Mosaica is the actual employer of the employees in question, the MERC properly asserted its jurisdiction instead of deferring to the NLRB. AFSCME, supra at 5-6.
However, it is unclear who the actual employer is in this matter, and the NLRA and NLRB no longer indicate how to factually decide this question for jurisdictional purposes. We have noted that the NLRB struck down the former "control" test and joint employer analysis applicable where, as may be the case here, one private employer had "close ties to an exempt [public] entity." Id. at 6-7, 12-14. The NLRB abandoned this test, which considered which entity controlled most terms and conditions of employment, because:
y requiring the employer to have control of economic terms before it would assert jurisdiction, the Board seems to have made a judgment, either directly or indirectly, that not only were certain contract terms of higher priority than others, but that such terms must be a part of contract negotiations. This, we think, amounts to the Board's entrance into the substantive aspects of the bargaining process which is not permitted un
Page 1 2 Michigan Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|