Detroit Motion Picture Projectionists Union v. Employment Relations Commission

Coleman, J. The temporary employment of both members of a two-person bargaining unit ended when a first contract agreement could not be reached. The question is whether an unfair labor practice under § 16 of the labor relations and mediation act (MCLA 423.16; MSA 17.454[17]) was committed. We affirm the Court of Appeals, which affirmed the Michigan Employment Relations Commission’s finding that there was no unfair labor practice on this record. The defendants own the Farmington IV Theatre. During late November of 1972, while the theatre was still under construction, they sought out the plaintiff union hoping to hire a union projectionist and relief projectionist. The defendants had in the past enjoyed a satisfactory relationship with the union, employing a number of its members at other theatres which they owned. The defendants and the union met together several times over the course of the next few weeks to discuss a possible contract. However, no agreement was reached. During this initial discussion period, Robert Holmes, a union projectionist, was hired lay Ringold Equipment Company to install the projection equipment in the theatre. Holmes installed the equipment and was paid by Ringold for his work. On the day the theatre was scheduled to open, the union agreed to let two of its members, Holmes and a relief projectionist, work as projectionists for two weeks, during which time further discussions were to take place regarding a possible contract. The defendants agreed to [495] pay the two members full union scale while the discussions continued. It was understood that this was only a temporary arrangement.1 The defendants and the union met together several more times during the next two weeks but they still could not reach an agreement on an initial contract. They did agree, however, to extend the temporary work arrangement on a day-today basis and to continue the contract discussions. On this basis, the members continued to work and the defendants continued to pay them full union scale.2 Nearly one month later, after several more meetings, the defendants and the union still had not been able to agree on an initial contract. Based upon the theatre’s first month earnings, the defendants told the union that they could not pay [496] full union scale and also meet their other expenses. They made an offer of one-half union scale. The union rejected this offer and said that nothing less than full union scale would be acceptable. The union then told the defendants that it was pulling its members off the job and the defendants said that the members’ services were no longer needed. Contract discussions ended. Thereafter, the defendants themselves acted as projectionists. The union later asked the defendants to send the two members a formal letter of termination. After receipt of this letter, the union filed unfair labor practice charges against the defendants. The administrative law judge ruled that the defendants had been guilty of unfair labor practices. The Michigan Employment Relations Commission reversed in a split decision and dismissed the charges. The majority concluded inter alia that the defendants "were sincere in their economic protestations” and were motivated solely by economic considerations.3 On rehearing the majority affirmed its original decision and stated that "the evidence persuades that the officers of the employer were, if anything, pro-union and not anti-union in their opinions and attitudes”.4 In addition, the majority found that "[t]he evidence establishes that both employees were furnished by the union under a hiring hall situation, and that the employment was for a temporary period while bargaining continued”.5 The majority concluded by emphasizing the unique factual circumstances of this case. The Court of Appeals affirmed the MERC majority in a split decision. 68 Mich App 458; 242 NW2d 806 (1976). [497] We also affirm. The MERC decisions are supported by competent, material and substantial evidence on the whole record. See Const 1963, art 6, § 28. The theatre was a new business enterprise. The defendants did not have to hire union members to fill the job openings. They could have hired nonunion projectionists or performed the work themselves. (They finally performed the work themselves.) Instead, they voluntarily sought out the union to fill the jobs weeks before the theatre was scheduled to open. When many meetings failed to result in an initial contract satisfactory to both the defendants and the union, the parties went their separate ways. They reverted to the same positions they had occupied prior to the defendants’ solicitation of the union. Neither side was in any better or any worse position than it had been in before. The only interest the two union members (the only members of the unit) had was a temporary day-to-day work arrangement contingent upon the successful outcome of the initial contract discussions. When those discussions ended unsuccessfully, their interests expired. No interests were destroyed. The formal letter of termination requested by the union does not transform the temporary consensual work arrangement and its expiration into a permanent hiring and a discharge. In these unique circumstances, the case of National Labor Relations Board v Great Dane Trailers, Inc, 388 US 26; 87 S Ct 1792; 18 L Ed 2d 1027 (1967), does not apply and the reasons proffered by the employer for expiration of the temporary arrangement supported the MERC decisions. Affirmed. No costs, a public question. Kavanagh, C.J., and Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, J. Footnotes [1] The union’s business representative, Archie Shelley, testified as follows about his dealings with one of the defendants, Sol Krim, on the day the theatre was scheduled to open: "A. I took the agreement out to the theatre — the two-week agreement we were supposed to have, and he told me he was going to take it, I assume, to you — you are his attorney — and have you check it over. That was the way it was left. Subsequently, I never got the agreement. ”Q. But the idea when you spoke to him was that we are on a temporary basis and will be negotiating during this two-week period? "A. That is correct. "Q. On December 22nd, that was not a permanent agreement? "A. No, that was not a permanent agreement. "Q. To the best of your knowledge, did the Krims during that two-week period honor all of the terms of the temporary arrangement? "A. Yes, he did.” [2] Mr. Holmes, the projectionist, understood that there was no permanent contract. He testified: "Q. So when you went to work you knew you were not under contract? "A. Correct. ”Q. Did Mr. Shelly tell you that 'during this period you are not under contract so be prepared at any time to be pulled off the job’, or words to that effect? "A. Maybe something to that effect.” [3] MERC majority opinion, p 8. [4] MERC majority opinion on rehearing, p 4. [5] Id., p 2.