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STATE OF MICHIGAN
COURT OF APPEALS


WARREN EDUCATION ASSOCIATION and JAMES R. FOUTS, Charging Parties-Appellants, v WARREN CONSOLIDATED SCHOOLS, Respondent-Appellee.

UNPUBLISHED April 12, 2007

No. 265643 MERC LC No. 01-000136

Before: Owens, P.J., and Neff and White, JJ. PER CURIAM. Charging parties appeal as of right the decision and order of the Michigan Employment Relations Commission (MERC), dismissing the unfair labor practice charge against respondent. We reverse. Charging parties contend that MERC impermissibly ignored and failed to defer to the Administrative Law Judge's (ALJ) assessment of witness credibility, thus leading it to reject the ALJ's finding of anti-union animus, and that MERC's decision is contrary to competent, material, and substantial evidence on the whole record. We agree. The Commission concluded that the ALJ's findings of anti-union animus and retaliation were not supported by the evidence: The ALJ based his finding of anti-union animus primarily on the timing of Respondent's actions in relation to the filing of the grievance and grievance meetings. However, the record indicates that the timing of these events was for the most part dictated by the convenience and schedules of the parties. Although the ALJ inferred animus from the delay in investigating and issuing the reprimand, Respondent gave a reasonable explanation for the delay. Walsh explained that it was not until the day of the school board meeting regarding Fouts' grievance that Walsh learned from Green that these might not have been isolated remarks, which made it a more serious matter. The Employer's investigation was conducted in order to determine whether Fouts had any basis for his comments. By questioning Fouts at the Step 2 grievance meeting, Respondent intertwined its underlying investigation with the grievance. While this may have been administratively convenient, it was clearly not the most prudent course of -1-


action. However, we conclude that this coincidence in timing is insufficient evidence upon which to base a finding of illegal motivation in the absence of any other indication of anti-union animus. There is no direct evidence of any hostility towards Fouts or other employees based on their use of the grievance procedure. Ingham Co Bd of Comm, 2000 MERC Lab Op 50. Establishing a violation of PERA requires more than mere suspicion; substantial evidence of anti-union animus must be shown. Michigan Employment Relations Comm v Detroit Symphony Orchestra, 393 Mich 116, 126 (1974); Rochester Sch Dist, 2000 MERC Lab Op 38, 42. We have carefully considered each of the arguments set forth by Charging Parties and find that they do not warrant a change in the result. . . . MERC's factual findings are final if supported by "competent, material, and substantial evidence on the record considered as a whole." MERC v Detroit Symphony Orchestra, 393 Mich 116, 121; 223 NW2d 283 (1974), citing MCL 423.23(e) and Const 1963, art 6,

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Michigan Law