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Ionia Education Association v. Ionia Public Schools

Court of Appeals of Michigan

July 28, 2015

IONIA EDUCATION ASSOCIATION, Charging Party-Appellant,
v.
IONIA PUBLIC SCHOOLS, Respondent-Appellee

MERC. LC No. 00-000136.

Before: SERVITTO, P.J., and BECKERING and BOONSTRA, JJ.

OPINION

Page 757

[311 Mich.App. 480] Per Curiam.

The Ionia Education Association (IEA) appeals as of right the order of the Michigan Employment Relations Commission (MERC) dismissing the unfair-labor-practice charge that the IEA brought [311 Mich.App. 481] against respondent, Ionia Public Schools (the school district). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

A. THE " BID-BUMP" PROCEDURE

This case primarily involves a matter of statutory interpretation and the pertinent facts are undisputed. The IEA and the school district are parties to a collective bargaining agreement (CBA) that expired on or about August 25, 2011. The expired CBA contained sections that described, among other matters, a procedure for the assignment of vacant teaching positions. The CBA called for a meeting, referred to by the parties as a " bid-bump" meeting, or " teacher assignment meeting," that was to take place near the end of the school year, in either April, May, or June. For the sake of simplicity, the purpose of the " bid-bump" meeting, as set forth in the now-expired CBA, was to permit teachers to bid on open positions, on the basis of a number of criteria. According to the IEA, it had used the bid-bump procedure for approximately 27 years.

B. MCL 423.215(3)(j)

The Public Employee Relations Act (PERA), MCL 423.201 et seq., establishes, among other matters, the duties of public employers and public employees with regard to collective bargaining. MCL 423.215(3) sets forth prohibited subjects of

Page 758

bargaining between a public school employer and the bargaining representative of its employees. The matters described as prohibited subjects of bargaining " are within the sole authority of the public school employer to decide." MCL 423.215(4). Historically, PERA did not include decisions regarding the placement of teachers among the prohibited subjects [311 Mich.App. 482] of bargaining. In 2011, the Legislature enacted a series of amendments to PERA and expanded the list of prohibited subjects of bargaining between public school employers and employees. 2011 PA 103, which became effective July 19, 2011, added several prohibited subjects, including those set forth in MCL 423.215(3)(j). MCL 423.215(3)(j) prohibits bargaining with regard to " [a]ny decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit." [1]

C. UNFAIR-LABOR-PRACTICE CHARGE

In the spring of 2012, the school district did not hold the bid-bump meeting, despite three requests by the IEA. The IEA filed an unfair-labor-practice charge in July 2012, citing the failure to hold a bid-bump meeting as set forth in the CBA.[2] In response, the school district argued that the enactment of MCL 423.215(3)(j) removed any duty to bargain over teacher-placement decisions and gave it unilateral authority to make decisions relating to teacher placement. According to the school district, it was no longer required to employ the bid-bump procedure described [311 Mich.App. 483] in the now-expired CBA. Following oral argument, the administrative law judge (ALJ) agreed with the school district and issued a recommended decision and order dismissing the unfair-labor-practice charge. Accepting as true the facts alleged by the IEA, the ALJ denied the IEA's request for an evidentiary hearing after finding that there were no disputed issues of fact. The ALJ also found that the language of § 15(3)(j) was clear and that it prohibited bargaining over any decision pertaining to teacher placement, including the bid-bump procedure.

The IEA filed exceptions to the ALJ's recommended decision and order and requested oral argument and an evidentiary hearing. In a written opinion and order, MERC denied the request for oral argument and an evidentiary hearing, finding that neither would aid in its decision. MERC adopted the ALJ's factual summary. As to the interpretation of § 15(3)(j), MERC rejected the IEA's exceptions and concluded that the ALJ had not erred in his interpretation of the statute. MERC dismissed the unfair-labor-practice charge in its entirety. This appeal followed.

II. INTERPRETATION OF MCL 423.215(3)(j)

A. STANDARD OF REVIEW

Our review of MERC's interpretation of MCL 423.215(3)(j) is de novo.

Page 759

Van Buren Co Ed Ass'n v Decatur Pub Schs, 309 Mich.App. 630; 872 N.W.2d 710 (2015), slip op at 5. However, we note that our Supreme Court has explained that " an agency's interpretation of a statute is entitled to 'respectful consideration,' but courts may not abdicate their judicial responsibility to interpret statutes by giving unfettered deference to an agency's interpretation. Courts must respect legislative [311 Mich.App. 484] decisions and interpret statutes according to their plain language." In re Complaint of Rovas Against SBC Mich, 482 Mich. 90, 93; 754 N.W.2d 259 (2008). This standard requires " 'cogent reasons'" for overruling an agency's interpretation. Id. at 103. " However, the agency's interpretation is not binding on the courts, and it cannot conflict with the Legislature's intent as expressed in the language of the statute at issue." Id.

B. PERA AND COLLECTIVE BARGAINING

" PERA governs the relationship between public employees and governmental agencies." Van Buren Co Ed Ass'n, 309 Mich.App. at 640. The act imposes upon public employers a mandatory duty to bargain over certain subjects, such as " wages, hours, and other terms and conditions of employment . . . ." MCL 423.215(1). See also Van Buren Co Ed Ass'n, 309 Mich.App. at 640. While PERA requires bargaining on some subjects, § 15(3) sets forth prohibited subjects of bargaining. See Mt Pleasant Pub Schs v Michigan AFSCME Council 25, 302 Mich.App. 600, 608-609; 840 N.W.2d 750 (2013). " Except as otherwise provided in subsection (3)(f),[3] the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide." MCL 423.215(4). If there is no duty to bargain over the subject matter, the employer can take unilateral action. Van Buren Co Ed Ass'n, 309 Mich.App. at 649. This Court has explained that, when the list of prohibited subjects of bargaining found in subsection 3 is read together with [311 Mich.App. 485] subsection 4, the subsections " evince a legislative intent to make public school employers solely responsible for these subjects by prohibiting them from being the subjects of enforceable contract provisions and by eliminating any duty to bargain regarding them." Michigan State AFL-CIO v Michigan Employment Relations Comm, 212 Mich.App. 472, 487; 538 N.W.2d 433 (1995).

2011 PA 103 expanded the list of prohibited subjects of bargaining. Pertinent to this case, 2011 PA 103 added § 15(3)(j), which expanded the prohibited subjects of bargaining to include " [a]ny decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit." MCL 423.215(3)(j). The salient issue in this case is whether § 15(3)(j) and the prohibition on bargaining over " [a]ny decision" regarding " teacher placement" applies to the bid-bump procedure.

The starting point for this inquiry is the plain language of the statute. Van Buren Co Ed Ass'n, 309 Mich.App. at 643.

In interpreting a statute, we consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.

Page 760

As with any statutory interpretation, our goal is to give effect to the intent of the Legislature by focusing on the statute's plain language. [ Speicher v Columbia Twp Bd of Trustees, 497 Mich. 125, 133-134; 860 N.W.2d 51 (2014) (citations and quotation marks omitted).]

If the statutory language is clear, we must enforce the statute as it is written. Braska v Challenge Mfg Co, 307 Mich.App. 340, 352; 861 N.W.2d 289 (2014). We may consult a dictionary to determine the plain and ordinary meaning of statutory terms that are undefined. Spartan Stores, Inc v Grand Rapids, 307 Mich.App. 565, 574; 861 N.W.2d 347 (2014).

[311 Mich.App. 486] C. APPLICATION

Turning to the statute at issue, § 15(3)(j) provides that collective bargaining between a public school employer and a bargaining representative of its employees " shall not include" " [ a ] ny decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or bargaining unit." MCL 423.215(3)(j) (emphasis added). The word " any" is not defined in the statute, but is commonly understood to be all-encompassing, meaning " every" or " all," and can be " used to indicate one selected without restriction" or " to indicate a maximum or whole." Merriam-Webster's Collegiate Dictionary (11th ed). The word " decision," meanwhile, is defined to mean " the act or process of deciding." Id. The term " placement" as used in the statute is commonly understood to refer to " an act or instance of placing" or " the assignment of a person to a suitable place (as a job or a class in school)." Id.

Given the broad language employed in § 15(3)(j), we conclude that the Legislature intended to prohibit an employer from bargaining over any decision, including policies or procedures such as the bid-bump procedure, with regard to teacher placement. The plain language of the statute gives broad discretion to public school employers to make " [a]ny decision," i.e., every decision or all decisions, " unmeasured or unlimited in amount, number or extent," regarding or concerning teacher placement. The statute contains no limitations on the employer. Also, the statute refers to decisions, which include the act or process of deciding. By stating that there was no duty to bargain over " [a]ny decision" regarding teacher placement and providing no limitation or explanation thereafter, the Legislature demonstrated its intent to afford public school employers [311 Mich.App. 487] broad discretion over any type of teacher placement decision or the impact of that decision on individual teachers or the bargaining unit as a whole. Cf. People v Cunningham, 496 Mich. 145, 154-155; 852 N.W.2d 118 (2014) (reasoning that where the Legislature provided courts with the authority to impose " any cost" in MCL 769.1k(1)(b)( ii ) and thereafter specified with particularity the costs that could be imposed, such language " suggests strongly that the Legislature did not intend MCL 769.1k(1)(b)( ii ) to provide courts with the independent authority to impose 'any cost'" ). In other words, the Legislature intended to remove from the ambit of bargaining any decision concerning the assignment or placement of teachers, and that any decision-making about teacher placement or assignments is to be within the sole discretion of the employer. The broad language used in the statute necessarily includes any decision-making process as well; consequently, policies and procedures used to make teacher-placement decisions such as those at issue in the instant case undoubtedly fall within the broad reach of " any decision" regarding teacher placement. Therefore, the plain language of § 15(3)(j) precludes bargaining

Page 761

over the bid-bump procedure, or any other procedure used in teacher placement.

With regard to the IEA's argument about placement policies and procedures, we find that it would make little sense that a public school employer could be compelled to bargain about an overarching placement plan or process, e.g., the bid-bump procedure previously employed in the instant case, yet have no duty to bargain over the placement decisions that result from that plan. Indeed, the decision-making process or plan would be of little import if the employer could simply make any decision it wanted about placement, regardless of the plan or procedure. Also, such a result would [311 Mich.App. 488] be contrary to the broad language employed in the statute. " When construing a statute, a court should not abandon the canons of common sense." In re Consumers Energy, 301 Mich.App. 614, 624; 874 N.W.2d 136 (2015) (citations and quotation marks omitted). Here, construing the statute in the manner proposed by the IEA is not appropriate.

The IEA argues that the phrase " teacher placement" limits the scope of an employer's decision-making to decisions involving individual teachers. This argument is not supported by the text of the statute. The term " teacher placement" could equally refer to the placement of a single teacher or to the act of placing multiple teachers, and the IEA provides no cogent argument as to why it should be limited to a single teacher. To read the statute in the manner proposed by the IEA would essentially require this Court to read the statute as applying to " [a]ny decision" applying to individual teachers regarding specific assignments, when the Legislature did not see fit to include such language in the statute. This Court cannot do so. Mich Ed Ass'n v Secretary of State ( On Rehearing ), 489 Mich. 194, 217, 218; 801 N.W.2d 35 (2011) (" [N]othing may be read into a statute that is not within the manifest intent of the Legislature as derived from the act itself." ) (citation and quotation marks omitted). Furthermore, the IEA's attempt to segregate the phrase " teacher placement" from the rest of the language employed in § 15(3)(j) is an inappropriate way to assess the intent of the Legislature. See Speicher, 497 Mich. at 138 (" An attempt to segregate any portion or exclude any portion of a statute from consideration is almost certain to distort legislative intent." ). Rather, the phrase must be construed in context. When viewed in context, the phrase " teacher placement" is intended to refer to the placement of an individual teacher or to the placement [311 Mich.App. 489] of multiple teachers. As noted, the phrase " teacher placement" follows the phrase " [a]ny decision." To construe the phrase " teacher placement" as applying to only those decisions made about individual teachers would significantly limit and undermine the broad, encompassing phrase " [a]ny decision" used by the Legislature. In addition, § 15(3)(j) provides, in pertinent part, that there is no duty to bargain over teacher placement " or the impact of that decision on an individual employee or the bargaining unit." (Emphasis added). This language does not suggest that " teacher placement" is meant to refer only to decisions about specific teachers, given that it invokes the " bargaining unit" as a whole, as well as individual teachers.

The IEA argues that reading MCL 423.215 in context compels the conclusion that its interpretation of the statute is correct. It notes that several other prohibited subjects of bargaining in § 15 exclude from bargaining decisions " about the development, content, standards, procedures, adoption, and implementation" of the public school employer's policies and procedures in certain areas. See MCL 423.215(3)(k)

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(providing that a public school employer does not have a duty to bargain with regard to " [d]ecisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position" ); MCL 423.215(3)( l ) (a public school employer does not have a duty to bargain with regard to " [d]ecisions about the development, content, standards, procedures, adoption, and implementation of a public school employer's performance evaluation system" ); MCL 423.215(3)(m) (a public school employer does not have a duty to bargain with regard to " decisions about the [311 Mich.App. 490] development, content, standards, procedures, adoption, and implementation of a policy regarding discharge or discipline of an employee, decisions concerning the discharge or discipline of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit" ); MCL 423.215(3)(p) (a public school employer does not have a duty to bargain about " [d]ecisions about the development, format, content, and procedures of the notification to parents and legal guardians required under [MCL 380.1249a]" regarding teachers who have been rated as " ineffective" ). The IEA's argument is unavailing. As noted, the plain language of § 15(3)(j) provides broad, unilateral discretion to the public school employer with regard to " [a]ny decision" regarding teacher placement. The IEA's proposed construction would be inconsistent with that language. And it would make little sense to give an employer this broad authority, yet require the employer to bargain over an overarching policy regarding teacher placement, particularly a policy such as the bid-bump policy employed in the instant case wherein teachers had authority over placement and transfer decisions.

The IEA also argues that an earlier draft of 2011 PA 2013 compels this Court to interpret § 15(3)(j) in the manner it proposes. Courts may consider legislative history, including " the changes in the bill during its passage." Dep't of Transp v Thrasher, 196 Mich.App. 320, 323; 493 N.W.2d 457 (1992), aff'd 446 Mich. 61, 521 N.W.2d 214 (1994). See also Klida v Braman, 278 Mich.App. 60, 70; 748 N.W.2d 244 (2008). Here, the IEA notes that as initially proposed by the House, § 15(3)(j) provided:

(j) Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policy for placement of teachers required under section 1247 of the revised school code, [311 Mich.App. 491] 1976 PA 451, MCL 380.1247,[4] any decision made by the public school employer pursuant to that policy, or the impact of those decisions on an individual employee or the bargaining unit. [2011 HB 4628.]

The IEA finds significant the initial inclusion, but subsequent rejection, of language pertaining to decisions about the " development, content, standards, procedures, adoption, and implementation of the public school employer's policy for placement of

Page 763

teachers . . . ." The IEA argues that 2011 HB 4628 demonstrates that the Legislature initially considered including among the lists of prohibited subjects of bargaining a public school employer's decisions about procedures and standards used in teacher placement decisions, but declined to adopt such a broad policy. Instead, according to the IEA, the Legislature elected to use the phrase " [a]ny decision," which the IEA contends is not as broad in its scope as the language that was initially proposed in 2011 HB 4628, but subsequently rejected.

The IEA's citation to 2011 HB 4628 is unavailing. The plain language of § 15(3)(j) is clear that it applies, without limitation, to " [a]ny decision" regarding teacher placement. That the Legislature considered adding to the statute language pertaining to decisions about policies and procedures for the placement of teachers and any decision pursuant to those policies is of little consequence, given the broad prohibition that [311 Mich.App. 492] was eventually passed. Indeed, we find the language that the Legislature eventually adopted in § 15(3)(j) is broader in scope than the language proposed in 2011 HB 4628, as it applies to " [a]ny decision," without limitation. Decisions about policies and procedures regarding teacher placement would necessarily fall within the ambit of " [a]ny decision" about teacher placement. We will not resort to legislative history to " cloud a statutory text that is clear." In re Certified Question (Kenneth Henes Special Projects Procurement v Continental Biomass Indus, Inc ), 468 Mich. 109, 113, 116; 659 N.W.2d 597 (2003) (citations and quotation marks omitted).

In sum, we hold that the plain meaning of § 15(3)(j) demonstrates the intent of the Legislature to give public school employers discretion regarding a broad spectrum of teacher placement decisions. This broad discretion applies not only to placement decisions themselves, but also to any decision the employer makes in regard to how it decides to go about making those decisions. Any decision regarding teacher placement, which is a prohibited subject of bargaining, cannot be the subject of a CBA. See Baumgartner v Perry Pub Schs, 309 Mich.App. 507, 525; 872 N.W.2d 837 (interpreting MCL 423.215(3)(k), which provides that decisions about a school employer's personnel decisions are prohibited subjects of bargaining). There are no cogent reasons for overturning MERC's interpretation of this statute. See In re Complaint of Rovas 482 Mich. at 103.

The IEA argues that MERC's (and the ALJ's) interpretation of the statute, with which we agree, is a " broad construction" of § 15(3)(j), and the IEA encourages this Court to adopt a narrower construction. Contrary to the IEA's contentions, this interpretation of the statute does not constitute a broad construction; [311 Mich.App. 493] rather, it constitutes an interpretation of the statute as it is written. As written, the statute is broad in its scope and application. We must adhere to the plain language of the statute and the intent of the Legislature as expressed plainly therein. Our role is to interpret the law and to apply statutes as they are written, not to question the Legislature or to alter plain statutory language.[5] See Johnson v Recca, 492 Mich. 169, 187; 821 N.W.2d 520 (2012).

III. REMAINING CHALLENGES

The IEA next raises issues concerning MERC's factual findings, its failure to hold an evidentiary hearing, and its

Page 764

failure to permit additional oral argument. MERC's factual findings are conclusive " if they are supported by competent, material, and substantial evidence on the record considered as a whole." Van Buren Co Ed Ass'n, 309 Mich.App. at 639 (citation and quotation marks omitted). " This evidentiary standard is equal to the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance." Mt Pleasant Pub Schs, 302 Mich.App. at 615 (citation and quotation marks omitted). With regard to the IEA's argument that MERC erred by failing to hold oral argument or an evidentiary hearing, our review is for an abuse of discretion. See MCL 423.216(b) (explaining that MERC " may" [6] take further testimony or " hear argument" after the hearing before the ALJ); [311 Mich.App. 494] Sault Ste Marie Area Pub Schs v Mich. Ed Ass'n, 213 Mich.App. 176, 182; 539 N.W.2d 565 (1995).

A. MERC'S FACTUAL FINDINGS

The IEA first contests the sufficiency of MERC's factual findings, arguing that those findings failed to accurately describe the bid-bump procedure. In evaluating this issue, we note that both the ALJ and MERC accepted as true the facts alleged by the IEA and that they both described the facts in this case as being undisputed. Rather than disputing any particular findings, the IEA states that " MERC's factual finding that Article X [of the CBA, which is the provision that describes the bid-bump procedure] constitutes an unenforceable 'prohibited subject' is not supported by any evidence in the record and therefore should be reversed." Although styled as a challenge to MERC's factual findings, this is essentially an argument that MERC's legal interpretation of § 15(3)(j) is incorrect. As noted earlier, that position is without merit.

B. EVIDENTIARY HEARING

We also conclude that MERC did not abuse its discretion when it declined to hold an evidentiary hearing. There have never been any disputed factual issues in this case and all facts alleged by the IEA were accepted as true. The only salient issue in this case was and continues to be an issue of law, i.e., whether the newly amended § 15(3)(j) applied and prohibited the bid-bump procedure at issue in this case. Once again, we find that the IEA's argument is essentially a challenge to the pertinent legal issue in this case, not to any factual issue. MERC did not abuse its discretion by declining to hold an evidentiary hearing. See Sault Ste Marie Area Pub Schs, 213 Mich.App. at 182 (explaining [311 Mich.App. 495] that " [i]n the absence of a factual dispute, the MERC did not abuse its discretion in declining to hold an evidentiary hearing" ).

C. ORAL ARGUMENT

Lastly, the IEA argues that MERC erred by declining to hold oral argument. The IEA was granted oral argument before the ALJ; however, MERC denied the IEA's request for further argument when it ruled on the IEA's exceptions to the ALJ's recommended decision and order. In Smith v Lansing Sch Dist, 428 Mich. 248, 250, 259-260; 406 N.W.2d 825 (1987), our Supreme Court reversed a MERC decision in which the charging parties were not given an opportunity to present oral argument. In that

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case, the hearing referee sua sponte issued a decision recommending that MERC summarily dismiss the unfair-labor-practice charge. Id. at 251-252. The charging parties filed an exception with MERC, which denied the unfair-labor-practice charge without holding either a hearing[7] or oral argument. The Court held that the failure to afford the charging parties oral argument required remand. Id. at 254. In doing so, the Court examined MCL 423.216(a), which provides that in the event of an unfair-labor-practice charge under PERA, " 'the commission, or any agent designated by the commission for such purposes, may issue and cause to be served upon the person a complaint stating the charges . . . and containing a notice of hearing. . . .'" Smith, 428 Mich. at 254, quoting MCL 423.216(a) (emphasis added). The Court also noted that MCL 423.216(a) [311 Mich.App. 496] provided, as it does now, that " [a]ny proceeding" under § 16(a) " shall be conducted pursuant to" sections 24.271 to 24.287 of the Administrative Procedures Act, MCL 24.271 through MCL 24.287. Id. at 254-255. See also MCL 423.216(a). Pertinent to the issue of oral argument, the Michigan Administrative Procedures Act provides that, in a contested case, " [t]he parties shall be given an opportunity to present oral and written arguments on issues of law and policy and an opportunity to present evidence and argument on issues of fact." MCL 24.272(3). See also Smith, 428 Mich. at 259. Because the charging parties in Smith were never afforded the opportunity to present oral arguments, the Court remanded the case to MERC for further proceedings and to afford the charging parties an opportunity to present oral argument. Id. at 259-260.

We note that the issue in Smith was not the same as the issue raised in the instant case. In Smith, the charging party was never afforded oral argument. Here, the IEA was afforded oral argument before the ALJ, but not before MERC. Proceedings before MERC are first generally held before a referee or ALJ or other MERC designee, pursuant to MCL 423.216(a). See, generally, Detroit v Detroit Fire Fighters Ass'n, Local 3434, IAFF, 204 Mich.App. 541, 554-555; 517 N.W.2d 240 (1994). If a party takes exception to the recommended decision and order, then the matter proceeds before " the commission," i.e., MERC, under the procedure set forth in MCL 423.216(b). See North Dearborn Hts Federation of Teachers v North Dearborn Hts Sch Dist, 382 Mich. 105, 107; 168 N.W.2d 219 (1969) . In pertinent part, MCL 423.216(b) provides: " The testimony taken by the commissioner, agent, or the commission shall be reduced to writing and filed with the commission. Thereafter the commission upon notice may take further testimony or hear argument." As our Supreme [311 Mich.App. 497] Court stated in North Dearborn Hts, 382 Mich. at 107, this requirement " is obviously for the reason that such a provision is to cover the situation . . . where the entire board does not hear the matter itself, but permits a hearing examiner to conduct the hearing, and then acts as a reviewing body of the examiner's report and recommended order." Significant to the case at bar, § 16(b), unlike § 16(a), does not require MERC to grant oral argument, but instead gives MERC

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discretion. Indeed, § 16(b) states that after testimony is taken by the ALJ or MERC (acting in the same capacity as an ALJ) in an earlier proceeding, MERC " upon notice may take further testimony or hear argument." [8] Accordingly, while oral argument is required under § 16(a), it is not mandated by § 16(b).

Additionally, we note MERC's administrative rules related to hearings before an ALJ and to those before MERC. As the Court recognized in Smith, 428 Mich. at 255, MERC has authority to promulgate its own rules. Mich. Admin Code R 423.173 provides that, at the close of a hearing before an ALJ, " [a] party is entitled upon request to a reasonable period at the close of the hearing for oral argument, which shall be made part of the record." (Emphasis added.) Thus, in accordance with Smith and MCL 423.216(a), a party is entitled to oral argument before the ALJ. With regard to proceedings before MERC after a matter has already been heard by an ALJ or other designee of MERC, Mich. Admin Code R 423.178 provides as follows:

If a party desires to argue orally before the commission, a written request shall accompany the exceptions, cross [311 Mich.App. 498] exceptions, or the brief in support of the decision and recommended order, and at the same time, the request shall be served on all other parties. The request must indicate " oral argument requested" in bold capital letters on the first page of the pleading under the caption. The commission, on its own motion, may also direct oral argument. The commission shall notify the parties of the time and place of oral argument. The commission may limit the time for oral argument by each party.

Unlike a hearing before an ALJ, Rule 423.178 does not mandate oral argument; rather, it simply states that a party may request oral argument. The idea that a party is to request oral argument suggests that MERC has discretion whether to grant oral argument at this stage. In addition, the rule does not require or guarantee oral argument.

Turning to the instant case, the IEA's citation to Smith is unavailing. Unlike in Smith, the IEA was afforded oral argument before the ALJ. It was only denied oral argument before MERC. This was permitted under MCL 423.216(b) and Mich. Admin Code R 423.178. Consistent with Mich. Admin Code R 423.178, the language employed in MCL 423.216 indicates that MERC has discretion over whether to grant oral argument after the matter has been heard by the ALJ. There is no merit to the IEA's contention that it is entitled to reversal because MERC concluded that additional oral argument would be unnecessary to its review of the case.[9]

Affirmed.


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