By Ed Jacques, LEJ Editor

As reported in a previous LEJ, POAM will periodically report on judges and decisions issuing from various Michigan and Federal Courts which have a positive or negative impact on Law Enforcement and Public Employee Labor Organizations. City of Detroit vs. Detroit Police Officers Association (DPOA), involved a Detroit Police Officer’s creation and operation of an internet website, www.firejerryo.com, while Jerry Oliver was the Detroit Police Chief. The website was created in October 2002, to provide a forum for police officers to express concerns regarding the police department and as a source of information for the community. It primarily contained articles about the police department authored by its webmaster, but also included some comic relief and criticism of department officials. A “guest book” was added to allow other members to express their thoughts.

In July 2003, Chief Oliver suspended the officer with pay. The Chief ordered the officer to shut down the website or risk suspension without pay. The officer continued to operate the website. In September 2003, Chief Oliver prepared a memorandum recommending charges against the officer for various alleged rule violations. The suspension was then changed to without pay, with the approval of the Detroit Board of Police Commissioners.

In January 2004, the DPOA filed an unfair labor practice charge with the Michigan Employment Relations Commission (MERC). The DPOA charged the City of Detroit with violating MCL 423.210(1)a of the Public Employment Relations Act (PERA) by directing that the officer shut down the website and the subsequent suspension for creating and operating the website. In March 2004, while the MERC charge was pending, the police department began formal disciplinary proceedings against the officer for conduct unbecoming a police officer and neglect of duty relating to his operation of the website.

The administrative law judge found that the police department violated PERA by suspending the officer for engaging in protected activity. He recommended that the department be ordered to cease and desist from interfering with, restraining or coercing employees in the exercise of rights guaranteed by MCL 423.209, restore the officer to his previous assignment, make him whole for any losses, and provide notice of the violation to its employees.

The City of Detroit appealed the MERC decision to the Michigan Court of Appeals. Previous case law is clear that MERC’s findings of fact are conclusive if they are supported by competent, material and substantial evidence on the record considered as a whole. MERC’s legal determinations may not be disturbed unless they violate a constitutional or statutory provision or they are based on a substantial and material error of law. The City cited News-Texan, Inc. vs. National Labor Relations Board, 422 F2d 381, 385(CA5, 1970) stating that employees cannot act in a manner that disregards the employer’s right to maintain discipline and efficient operation. The City claimed that the officer’s statements undermined public confidence in its police department and had an adverse impact on its operation.

The Court found that the DPOA established that the officer, although acting alone, operated at least part of the website for a protected purpose, namely, to induce group activity for the mutual aid and protection of fellow police officers. The “guest book” for police officers to log in to and express their concerns supported the administrative law judge’s finding that the officer was engaged in protected activity under MCL 423.209. The Court held that the evidence revealed that the website as a whole was not conducted in such an abusive manner as to lose the protection of PERA. The Court stated that a member’s protected right to engage in lawful concerted activities was adversely affected by the suspension. The Court further concluded if an employer’s action is based on disciplinary rules, the employer must show a legitimate and substantial business justification for instituting and applying the disciplinary rules, citing Ingham County, 275 Mich App at 149.

The Court also referred to the recent decision in Ingham County vs. Capitol City Lodge No. 141, where the Court of Appeals set forth a three part test for situations where an employer claims to have applied a disciplinary rule to justify its actions:

Under the first prong of the test, we look at whether the employer’s action adversely affected the employee’s protected right to engage in lawful concerted activities under the PERA. Under the second prong, we look at whether the employer has met its burden to demonstrate a legitimate and substantial business justification for instituting and applying the rule. Finally, under the third prong, we balance the diminution of the employees’ rights because of application of the rule against the employer’s interests that are protected by the rule.

The Court also stated that employees are not precluded from seeking to improve terms and conditions of employment, or to otherwise improve their lot as employees, through channels outside the employee- employer relationship. The action of a single employee who intends to induce group activity can also constitute concerted activity under the “mutual aid or protection” provision. They also noted that in mixed motive cases, such as this one, the Court has approved the MERC’s use of the burden shifting approach in National Labor Relations Board vs. Wright Line 662 F2d 899(CA 1, 1981), which requires the charging party to demonstrate that protected conduct under the PERA was a motivated or substantial factor in the employer’s action. Once this showing is made, the burden shifts to the Employer to produce evidence that the same action would have taken place in the absence of the protected conduct.

Considering the evidence as a whole, the Court unanimously concluded that the officer was suspended simply because he continued to operate the website and that disciplining him for not shutting down the entire website violated PERA. The Court affirmed MERC’s order and granted DPOA’s petition to enforce that order.

This decision and Judge’s analysis supports existing law enforcement labor organization rights.

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