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STATE OF MICHIGAN
COURT OF APPEALS


KIMBERLY WISE, Petitioner-Appellee, v MICHIGAN CIVIL SERVICE COMMISSION, Respondent-Appellant.

UNPUBLISHED August 23, 2007

No. 268675 Wayne Circuit Court LC No. 05-524180-AE

Before: Davis, P.J., and Schuette and Borrello, JJ. PER CURIAM. Respondent appeals by leave granted from a circuit court order reversing respondent's decision and reinstating petitioner's employment with the Michigan Department of Corrections. We reverse. Petitioner was employed as a resident unit officer by the Michigan Department of Corrections ("MDOC") as a resident unit officer, which is a classified civil service position governed by the civil service rules and regulations promulgated by respondent. She was also a member of the Michigan Corrections Organization, Service Employees International Union ("MCO"), the labor relations representative for corrections workers in Michigan. The MCO entered into a collective bargaining agreement with the MDOC. In 2003, the MDOC discovered evidence of improper contact between petitioner and a prisoner who had recently been transferred from the facility where petitioner worked to another facility. Petitioner denied, and continues to deny, any of the contacts. The MDOC held a disciplinary conference and found that petitioner had violated its Work Rule 46, prohibiting "over familiar" conduct with a prisoner. In December 2003, the MDOC formally terminated petitioner's employment. Pursuant to Article 9 of the collective bargaining agreement, the MCO filed a grievance on petitioner's behalf. The grievance proceeded to arbitration, where the MCO argued that the evidence of misconduct was unreliable, that termination was excessively harsh and based on a failure to consider mitigating factors, and that no punishment could be imposed because the MDOC had failed to use the required manner of providing her with notice. The arbitrator found the evidence reliable and that consideration of the mitigating and aggravating factors supported termination. Article 10(E) of the collective bargaining agreement required disciplinary actions to "be initiated within forty-five (45) calendar days from the date of the disciplinary conference;" specified that "[f]ormal notification to the employee of the disciplinary action shall be in the form of a letter or form spelling out charges and reasonable specifications;" and specified that if -1-


notice was not personally given to the employee, "the notice shall be sent to the employee by certified mail, return receipt requested, at the last address he/she provided the Employer." The arbitrator found that, although the MDOC had sent notice to petitioner using only noncertified overnight mail, the agreement should not be construed to cause a forfeiture of the MDOC's right to impose discipline; and it should not be construed to reach harsh, unreasonable, or absurd results. The arbitrator therefore upheld the termination. The MCO did not seek further administrative or judicial relief. Petitioner then exercised her rights under Civil Service Rule ("CSR") 6-3.5(a), which permits "[a]ny person" to "file a complaint with the state personnel director that a collective bargaining agreement, arbitrator's decision, or settlement agreement under a collective bargaining agreement has been applied or interpreted to violate or otherwise rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining." The prohibited subjects of bargaining are listed in CSR 6-3.2, which also provides that an "arbitrator's decision under a collective bargaining agreement cannot be interpreted or applied to violate, rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining." CSR 6-3.2(a)(1). Petitioner specifically contended that the arbitrator had violated CSR 6-3.2(b)(8), which provides as follows: The system of collective bargaining created in the civil service rules, the bargaining relationships authorized in the rules, and the limitations, restrictions, and obligations on the collective bargaining parties, collective bargaining agreements, and eligible employees established in the civil service rules and regulations. Petitioner argued that the arbitrator had exceeded his authority by ignoring or misconstruing the unambiguous terms of the collective bargaining agreement; and furthermore, the arbitrator improperly relied on unreliable, circumstantial, or nonexistent evidence. The state personnel director denied the appeal for lack of subject-matter jurisdiction. The state personnel director explained that a complaint under CSR 6-3.5(a) required an allegation that a civil service rule or regulation was violated, but petitioner's complaint alleged only a violation of the collective bargaining agreement. Petitioner then sought to appeal the personnel director's decision to respondent, pursuant to CSR 6-3.5(c), which provides as follows: A party to the collective bargaining agreement who is aggrieved by a final decision of the state personnel director may file an application for leave to appeal to the civil service commission within 28 calendar days after the decision is issued. Respondent dismissed the appeal, stating that CSR 6-3.5(c) only permitted parties to the collective bargaining agreement to seek appeals from decisions of the state personnel director. Respondent interpreted "parties" to refer only to the union and the employer, in this case the MCO and the MDOC. According to respondent, individual union members like petitioner were not "parties to the collective bargaining agreement." Therefore, respondent concluded that petitioner lacked standing to appeal.

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Petitioner appealed respondent's summary dismissal to the circuit court. The circuit court concluded that respondent had misinterpreted the civil service rules when it determined that an individual union member is not a "party" to the collective bargaining agreement within the meaning of CSR 6-3.5(c). Relying on MCL 600.1405, the court determined that union members are third-party beneficiaries to a collective bargaining agreement for purposes of applying CSR 6-3.5(c). The circuit court also addressed the merits of petitioner's claim and concluded that she was improperly terminated from her employment. The circuit court ordered that she be reinstated. Respondent now appeals. Respondent is a constitutionally created administrative agency vested with the authority to "make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service." Const 1963, art 11,

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