Clerical-Technical Union of Michigan State University v. Michigan State University Board of Trustees

Hoekstra, P.J.

(dissenting). I respectfully dissent because I would conclude that the Michigan Employment Relations Commission (merc) orders in these consolidated cases constitute a lawful exercise of the merc’s discretionary authority pursuant *53to MCL 423.216(b); MSA 17.455(16)(b). This Court’s review of the merc’s remedial orders is very limited. This Court has consistently refused to substitute its judgment for that of the merc. Crestwood Ed Ass’n v Employment Relations Comm, 88 Mich App 409; 276 NW2d 592 (1979); Muskegon Co Professional Command Ass’n v Muskegon Co, 186 Mich App 365, 374; 464 NW2d 908 (1990); Wayne-Westland Ed Ass’n v Wayne-Westland Community Schools, 176 Mich App 361, 364; 439 NW2d 372 (1989). The Public Employment Relations Act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq., requires the merc, upon finding an unfair labor practice, to issue a cease-and-desist order. MCL 423.216(b); MSA 17.455(16)(b). With respect to any additional orders, unless it can be shown that the orders are a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the pera, the remedial orders of the merc are not to be disturbed. Crestwood, supra. The merc is not required to return the parties to the status quo ante or to effectuate the remedy requested by a prevailing party. Id.

In both cases the majority correctly finds that the merc issued a cease-and-desist order, which is the only mandatory requirement of the statute. However, the majority goes on to find that the merc’s refusal to order a return to the status quo ante was a patent attempt to achieve ends contrary to the policies of the pera. I find no such evidence in the record and would therefore affirm.

The merc found, and the record supports, that although msu had committed an unfair labor practice in each case, it had done so on the basis of its reasonable reliance on a previous decision of the merc, which had upheld msu’s right to make unilateral changes of positions on the basis of the contractual agreement and past practices of the *54parties. The opinion, Michigan State Univ v Michigan State Univ Employees Ass’n, 1978 MERC Lab Op 871, was specifically addressed and overruled for the first time in Docket No. 165835. That same merc opinion was referenced and discussed in Docket No. 165131. It is apparent that msu’s reliance on this prior opinion of the merc, which authorized the very same practice that the merc now found to be an unfair labor practice persuaded the merc that a return to the status quo ante was not warranted. To say, as the majority does, that the motivation for the merc orders is a patent effort to achieve ends other than those consistent with the policies of the pera under these circumstances is simply not supported by the record.

Further, I would find that the merc orders implicitly resolved the allegations of illegal assistance and failure to address unit clarification. Both issues underlie appellant’s basic charge of failure to provide a proper remedy, and resolution of the remedy issue fairly advised appellant of the merc’s opinion regarding these secondary issues. Remand for specific consideration of these issues is unnecessary.