Opinion
Docket No. 78-3683.
Decided July 23, 1979.
Eddie Robertson, in propria persona.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for the Michigan Employment Relations Commission.
Farber Downs, P.C., for respondent union.
On December 28, 1977, appellant filed charges with the Michigan Employment Relations Commission (hereinafter MERC) against his bargaining unit. The charges involved the union's duty of fair representation in bargaining for a new contract and the union's failure to support appellant's personal concerns. The charges were brought under the public employment relations act (hereinafter PERA). After a hearing, the administrative law judge issued a recommended order that the charges be dismissed. MERC adopted that order on July 24, 1978, after the period for taking exceptions to the administrative law judge's recommendation had expired without either side filing any exceptions. The charging party now appeals.
We conclude that appellant's failure timely to file exceptions to the administrative law judge's proposed order constitutes a waiver of any objections and bars this appeal.
MCL 423.216(b); MSA 17.455(16)(b) provides in part:
"If the evidence is presented before a commissioner of the commission, or before examiners thereof, the commissioner, or examiners shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the commission, and if an exception is not filed within 20 days after service thereof upon the parties, or within such further period as the commission may authorize, the recommended order shall become the order of the commission and become effective as prescribed in the order."
MCL 423.216(d); MSA 17.455(16)(d) states in part:
"No objection that has not been urged before the commission, its commissioner or agent, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances."
We have not found any Michigan cases construing the above language. However, in the absence of governing Michigan law, we may rely on similar sections of the National Labor Relations Act when construing provisions of PERA. Michigan Employment Relations Comm v Reeths-Puffer School Dist, 391 Mich. 253, 260; 215 N.W.2d 672 (1974).
The National Labor Relations Act contains provisions substantially identical to the PERA provisions quoted above. 29 U.S.C. § 160(c), provides in part:
"In case the evidence is presented before a member of the Board, or before an examiner or examiners thereof, such member, or such examiner or examiners as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed." 29 U.S.C. § 160(e) states in part:
"No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."
Several Federal courts of appeal have construed these provisions and held that objections not raised before the NLRB are waived. See National Labor Relations Board v International Union of Operating Engineers, Local 66, 357 F.2d 841, 845-847 (CA 3, 1966), and cases cited therein. In National Labor Relations Board v Pugh Barr, Inc, 194 F.2d 217 (CA 4, 1952), a trial examiner's recommended order was adopted by the NLRB after the respondent failed to file exceptions to the order. When the NLRB petitioned the Court for enforcement of the order, respondent, without offering any excuse for its failure to file exceptions to the trial examiner's report, urged the Court to deny the motion and hold a hearing on the sufficiency of the evidence used to support the order. The Court reviewed the relevant statutes, refused to review the sufficiency of the evidence because respondent failed to raise the issue in a timely manner before the NLRB and offered no explanation for the omission, and granted the NLRB's motion. The Court, in essence, refused to review the case.
We likewise hold that appellant failed to preserve this case for review by inexplicably failing to object in a timely fashion to the administrative law judge's recommended order. If this Court were to rule otherwise, parties would be able to circumvent MERC's review of administrative law judge orders, and the statutes under consideration would be rendered meaningless. Appellant will not be permitted to skip a step in the review process without demonstrating good cause. In the instant case, appellant has failed to give any explanation for his failure to file exceptions to the recommended order. Therefore, this case has not been preserved for appeal.
Appeal dismissed. No costs, a public question being involved.