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Mosaica Academy of Saginaw v. Michigan Education Association6/25/2002
der [Supreme Court precedent]. [Management Training Corp v Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 222, 317 NLRB 1335, 1357-1358 (1995), quoted in AFSCME, supra at 12.]
After the control test's demise, we have held that deference to the NLRB is more often necessary under the "arguable jurisdiction" standard. AFSCME, supra at 14-16. No NLRB decisions and Michigan cases since the AFSCME decision in 1996 have indicated the new jurisdiction test where, as here, there are two possible employers, one arguably public and one private. Further, the NLRB affirmed its decision in Management Training, supra, as recently as in MCAR, Inc v AFSCME, Dist Council 85, AFL-CIO, ___ NLRB ___; 2001 WL 431520. The NLRB's decisions since Management Training also support its assertion of jurisdiction in cases factually similar to the present matter. See, e.g., id.; International Union of Operating Engineers, Local 70 v NLRB, 940 F Supp 1439 (D Minn, 1996) (NLRB's assertion of jurisdiction over employees of private management company hired by public school district, on grounds that company was private rather than public employer, did not violate the NLRA).
Thus, while it seems clear that appellant Mosaica is a public entity subject to state labor relations law and MEI is a private entity subject to federal law, which is the actual employer on the facts of this case is vital to determining jurisdiction. Because the NLRB withdrew the control test ordinarily used for determining who is the actual employer, which is arguable in this case, this case should be deferred to the NLRB. AFSCME, supra at 14-16. As a result, the MERC's decision asserting its own jurisdiction was an error of law violating the federal preemption doctrine. Police Officers Ass'n, supra at 586.
Vacated.
Donald S. Owens
David H. Sawyer
Jessica R. Cooper
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