Unfair labor practices (ULPs); The National Labor Relations Act; Unilateral wage increases to bargaining-unit employees; Waiver; Clear & unequivocal notice; Whether the employer withdrew recognition of the union; Refusal to bargain in good faith & failure to provide requested information; Applicability of the technical-refusal-to-bargain doctrine; Jurisdiction to review challenge to the enforceability of the NLRB’s bargaining order; 29 USC § 160(e)

Holding that substantial evidence supported respondent-NLRB’s findings that petitioner-employer (Rieth-Riley) engaged in ULPs in 2021 and 2022, the court denied Rieth-Riley’s petition for review of the NLRB’s order and granted the NLRB’s cross-application for enforcement of its order. Rieth-Riley first argued that “its 2021 and 2022 wage increases to bargaining-unit employees were not” ULPs because intervenor-Union “waived its right to bargain over them[.]” The NLRB found that Rieth-Riley did not prove waiver, and the court concluded that substantial evidence supported the “finding that Rieth-Riley failed to provide clear and unequivocal notice of the 2021 and 2022 wage increases to the Union.” The court held that the “supposed notice was far from ‘clear and unequivocal.’ As the Board pointed out, such general statements, without essential details like timing and amounts, are too broad to qualify as adequate notice.” And because the waiver defense failed, the NLRB “did not err by finding that the company committed [ULPs] by granting unilateral wage increases in 2021 and 2022.” The court also determined that substantial evidence supported the NLRB’s “finding that Rieth-Riley withdrew recognition from the Union. Taken together, the company’s conduct—its unilateral wage increases over multiple years, its [6/22] letter to the Union explicitly refusing to bargain, and its failure to provide requested information to the Union—demonstrated an intent to completely sever its relationship with the Union. Of course, a single [ULP] may not convey such an intent. But Rieth-Riley committed several serious ones.” Next, Rieth-Riley did “not deny that it refused to bargain with the Union and that it failed to provide requested information.” Rather, it sought to invoke the technical-refusal-to-bargain doctrine. But the court concluded that none of the Board’s ULP “findings was ‘based in whole or in part’ on the” dismissal of decertification petitions. And given that “Rieth-Riley’s longstanding obligations to the Union remained the same—whether or not the Board dismissed the petitions—it could not test those obligations by refusing to bargain.” Finally, the court found that it lacked jurisdiction to consider Rieth-Riley’s argument that the NLRB “improperly expanded the ALJ’s bargaining order” because Rieth-Riley did not “raise this challenge before the Board.”

Whether the parties had a binding arbitration agreement; Rayford v American House Roseville I, LLC

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 76022 in the 8/26/21 edition) and remanded the case to that court for reconsideration in light of Rayford.

Sufficient evidence for convictions of first-degree murder & AWIM; Premeditation & deliberation; People v Oros; Causation; Intent; Self-defense

Holding that there was sufficient evidence to support defendant’s convictions of first-degree murder and AWIM, the court affirmed. He first asserted that “he had insufficient time to effectively premeditate and deliberate the crime.” But the court concluded that, upon “withdrawing to his home to retrieve his rifle, defendant had sufficient time to think about his actions. Even accepting [his] own version of the events, he still spent about 15 to 20 seconds retrieving the weapon before he re-emerged outside of his house, where he then raised the loaded weapon and fired multiple rounds, shooting” victims-W and T. Applying the Oros standard, this was “more than enough time to have taken a second look at his planned actions and weighed the pros and cons of proceeding. Thus, the evidence was sufficient to allow a jury to conclude beyond a reasonable doubt that defendant was guilty of first-degree premeditated murder.” As to his causation argument, there was also “sufficient evidence on this point to convict” him on both charges. As to first-degree premeditated murder, he “admitted at trial that he fired at the vehicle which he knew to be occupied by [W] and [T], and evidence at trial demonstrated that he fired multiple times. The prosecution also established that [W’s] and [T’s] manner and causes of death were homicide by multiple gunshot wounds.” While he contended that the bullets that killed them “could have come from someone other than him[,]” he ignored the fact that the court “must view the evidence in light most favorable to the prosecution and likewise resolve any evidentiary conflicts in favor of the prosecution.” Applying those standards, it held that “the prosecution presented sufficient evidence at trial for the jury to reasonably conclude beyond a reasonable doubt that defendant shot and killed” W and T. It also held that the evidence was sufficient to establish that he “was guilty of AWIM in relation to the injuries sustained by six partygoers who were caught in the shootout.” As he was the only one “proven to be shooting westward in the direction of the party attendees, a jury could reasonably conclude that defendant caused the injuries sustained by these individuals. Moreover, the jury could reasonably infer the requisite intent to kill from” his conduct. Finally, there was sufficient evidence to disprove his “self-defense claim beyond a reasonable doubt[.]”

Motion to suppress; Traffic stop; Prolonging an investigative seizure; Calling a canine unit; Reasonable suspicion

The court held that based “on the totality of the facts and circumstances, . . . the officer lacked a reasonable, articulable suspicion of criminal activity that justified prolonging the traffic stop and thus defendant’s Fourth Amendment rights were violated.” It reversed the trial court’s denial of his motion to suppress and remanded. He “was pulled over in an empty parking lot when he was confronted by a police officer [P]. Approximately two minutes after [P’s] initial contact with [him], the officer requested a drug-sniffing dog. A search of defendant’s vehicle yielded” meth. He moved to suppress that evidence. The parties disputed “whether, and at what point, defendant was ‘seized’ under the Fourth Amendment.” The court held that “the totality of the circumstances show that [he] was seized before [P] called for the canine unit.” It concluded that P was “justified in seizing defendant to address a possible traffic violation.” But it found that when P “called for a canine unit, the detention became focused on defendant’s potential possession of illegal drugs.” The court noted that P “testified that he was concerned that the vehicle was not safe to operate on the roadway because of its condition. While [P] testified that defendant ‘appeared nervous’ when the deputy first approached him, the video-audio recording of the encounter does not reveal any observable signs of nervousness.” Defendant answered P’s “questions and readily produced his identification. It took time for [him] to form his responses and his speech was impaired, but these deficits can be attributed to his previous stroke.” The court noted that P “also testified that defendant reached into the driver’s side of the vehicle during the initial encounter, which raised a concern that [he] may be attempting to grab for or conceal a weapon. But this concern was quickly dispelled when defendant answered truthfully that he did not have any weapons, a second officer led [him] away from the vehicle, and the driver’s side door was shut. Further, [P] testified that he requested a canine unit to search for drugs, not guns.” The court held that based “on the totality of the facts and circumstances” P did not have “a reasonable, articulable suspicion of criminal activity that justified extending the stop to conduct a dog sniff. [Thus,] the trial court erred by denying defendant’s motion to suppress.”

Unfair labor practices (ULPs); The National Labor Relations Act; Unilateral wage increases to bargaining-unit employees; Waiver; Clear & unequivocal notice; Whether the employer withdrew recognition of the union; Refusal to bargain in good faith & failure to provide requested information; Applicability of the technical-refusal-to-bargain doctrine; Jurisdiction to review challenge to the enforceability of the NLRB’s bargaining order; 29 USC § 160(e)

Holding that substantial evidence supported respondent-NLRB’s findings that petitioner-employer (Rieth-Riley) engaged in ULPs in 2021 and 2022, the court denied Rieth-Riley’s petition for review of the NLRB’s order and granted the NLRB’s cross-application for enforcement of its order. Rieth-Riley first argued that “its 2021 and 2022 wage increases to bargaining-unit employees were not” ULPs because intervenor-Union “waived its right to bargain over them[.]” The NLRB found that Rieth-Riley did not prove waiver, and the court concluded that substantial evidence supported the “finding that Rieth-Riley failed to provide clear and unequivocal notice of the 2021 and 2022 wage increases to the Union.” The court held that the “supposed notice was far from ‘clear and unequivocal.’ As the Board pointed out, such general statements, without essential details like timing and amounts, are too broad to qualify as adequate notice.” And because the waiver defense failed, the NLRB “did not err by finding that the company committed [ULPs] by granting unilateral wage increases in 2021 and 2022.” The court also determined that substantial evidence supported the NLRB’s “finding that Rieth-Riley withdrew recognition from the Union. Taken together, the company’s conduct—its unilateral wage increases over multiple years, its [6/22] letter to the Union explicitly refusing to bargain, and its failure to provide requested information to the Union—demonstrated an intent to completely sever its relationship with the Union. Of course, a single [ULP] may not convey such an intent. But Rieth-Riley committed several serious ones.” Next, Rieth-Riley did “not deny that it refused to bargain with the Union and that it failed to provide requested information.” Rather, it sought to invoke the technical-refusal-to-bargain doctrine. But the court concluded that none of the Board’s ULP “findings was ‘based in whole or in part’ on the” dismissal of decertification petitions. And given that “Rieth-Riley’s longstanding obligations to the Union remained the same—whether or not the Board dismissed the petitions—it could not test those obligations by refusing to bargain.” Finally, the court found that it lacked jurisdiction to consider Rieth-Riley’s argument that the NLRB “improperly expanded the ALJ’s bargaining order” because Rieth-Riley did not “raise this challenge before the Board.”

Appellate review; Standard of review for equitable rescission; Abuse of discretion; Wilmore-Moody v Zakir; Summary disposition; Material misrepresentation under MCR 2.116(C)(10); Insurance rescission; Equitable balancing & reformation v rescission; Bazzi v Sentinel Ins Co; Titan Ins Co v Hyten

The court held that defendant-Progressive was entitled to rescind plaintiff-Sherman’s no-fault policy because there was no genuine issue of material fact that she made material misrepresentations in her insurance application, and the trial court abused its discretion by ordering reformation rather than rescission. Sherman was injured as a passenger in one of her insured vehicles and sought PIP benefits. But Progressive discovered that she misrepresented where her vehicles were garaged and failed to disclose resident-relatives, facts that would have raised her premium by 83.2%. Progressive denied coverage, rescinded the policy, and refunded the premiums. The trial court denied summary disposition and instead reformed the policy to reflect a Detroit garaging address and a higher premium, but the Court of Appeals reversed. On appeal, the court first clarified that, when rescission is sought through a motion under MCR 2.116(C)(10), an appellate court must determine de novo whether “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Then it must review the “trial court’s decision to grant or deny the equitable doctrine of rescission for an abuse of discretion.” The court held that Sherman’s false statements about the garaging location and household residents were material because Progressive showed it “would have issued Sherman a different contract had it known the accurate information,” and there was “no genuine issue of material fact that Sherman made misrepresentations[.]” Finally, the court held that the equities were entirely one-sided because “the record contains no allegation of wrongdoing or inequitable conduct on Progressive’s part,” Sherman was “the party who committed material misrepresentations,” and there were “no third-party interests at stake,” so “there was no plausible basis for the trial court to find that a result favoring Sherman and disfavoring Progressive was warranted as a matter of equity.” The court also held that no remand to rebalance the equities was necessary because “the record is complete and the equities overwhelmingly favor rescission[.]”

The No-Fault Act (NFA); MCL 500.3116(2); No-fault insurer claim against a nonmotorist tortfeasor; Citizens Ins Co v Pezzani & Reid Equip Co, Inc (On Remand); Personal protection insurance (PIP)

In a special panel opinion, the court held that MCL 500.3116 only “applies to an insurer’s right of reimbursement from a claimant and does not apply to an insurer’s tort recovery, as a subrogee, against a nonmotorist tortfeasor.” As a result, the special panel overruled the court’s 1993 decision in Pezzani. Plaintiffs were injured when a tire on another vehicle came off and struck their vehicle. They sued defendant-Family Tire, which had performed a tire rotation on the other vehicle shortly before the accident. Intervening plaintiff-Frankenmuth, their insurer, paid plaintiffs PIP benefits and moved to intervene in their negligence case. “Relying primarily on Pezzani,” the trial court granted Family Tire summary disposition of Frankenmuth’s claim. On appeal, the court in Call I affirmed the trial court because it was bound by Pezzani, but “disagreed with Pezzani and called for the convening of this special panel to determine whether Pezzani should remain binding authority.” After examining the NFA’s language, the special panel agreed “with Call I that Pezzani fails to adhere to the plain and unambiguous language of MCL 500.3116.” It noted that several decisions have determined that the statute’s language only applies “to an insured’s ability to recoup benefits from a claimant.” Despite that case law, “Pezzani applied the provision to bar the insurer plaintiff from recovering against the nonmotorist defendants.” The court noted that decision failed to “analyze the statutory language or explain why the result it reached was consistent with the language.” In Call I, the court applied “the plain, unambiguous statutory language,” and properly found that MCL 500.3116 did not apply here “because Frankenmuth does not seek reimbursement of benefits from the Calls. Rather, as the Calls’ subrogee, [it] seeks to recover from Family Tire damages under a negligence theory, and the amount of Frankenmuth’s damages is the amount of PIP benefits it paid to the Calls because of Family Tire’s alleged negligence. Because MCL 500.3116 does not preclude Frankenmuth’s claim, the trial court erred by granting Family Tire’s motion for summary disposition.” Reversed and remanded.

Whether the parties had a binding arbitration agreement; Rayford v American House Roseville I, LLC

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 76022 in the 8/26/21 edition) and remanded the case to that court for reconsideration in light of Rayford.

Appellate review; Standard of review for equitable rescission; Abuse of discretion; Wilmore-Moody v Zakir; Summary disposition; Material misrepresentation under MCR 2.116(C)(10); Insurance rescission; Equitable balancing & reformation v rescission; Bazzi v Sentinel Ins Co; Titan Ins Co v Hyten

The court held that defendant-Progressive was entitled to rescind plaintiff-Sherman’s no-fault policy because there was no genuine issue of material fact that she made material misrepresentations in her insurance application, and the trial court abused its discretion by ordering reformation rather than rescission. Sherman was injured as a passenger in one of her insured vehicles and sought PIP benefits. But Progressive discovered that she misrepresented where her vehicles were garaged and failed to disclose resident-relatives, facts that would have raised her premium by 83.2%. Progressive denied coverage, rescinded the policy, and refunded the premiums. The trial court denied summary disposition and instead reformed the policy to reflect a Detroit garaging address and a higher premium, but the Court of Appeals reversed. On appeal, the court first clarified that, when rescission is sought through a motion under MCR 2.116(C)(10), an appellate court must determine de novo whether “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Then it must review the “trial court’s decision to grant or deny the equitable doctrine of rescission for an abuse of discretion.” The court held that Sherman’s false statements about the garaging location and household residents were material because Progressive showed it “would have issued Sherman a different contract had it known the accurate information,” and there was “no genuine issue of material fact that Sherman made misrepresentations[.]” Finally, the court held that the equities were entirely one-sided because “the record contains no allegation of wrongdoing or inequitable conduct on Progressive’s part,” Sherman was “the party who committed material misrepresentations,” and there were “no third-party interests at stake,” so “there was no plausible basis for the trial court to find that a result favoring Sherman and disfavoring Progressive was warranted as a matter of equity.” The court also held that no remand to rebalance the equities was necessary because “the record is complete and the equities overwhelmingly favor rescission[.]”

Easement scope; Unverzagt v Miller; Implied easement; Quasi-easement; Charles A Murray Trust v Futrell; Common-law private dedication; Redmond v Van Buren Cnty; Prescriptive easement; Adverse use; Le Roy v Collins

The court held that plaintiffs failed to establish any legal right to use defendants’ private paths for recreational purposes, whether through the easement recognized in Unverzagt, an implied easement, a common-law private dedication, or individual prescriptive easements. Plaintiffs, a property owners’ association and two lot owners in Macatawa Park, sought to use Bay Road, North Walk, and Lakeside Way, private rights of way located in or near a plat referred to as HS31, for recreational walks and lighthouse access. Defendants blocked or restricted that access. The trial court granted partial summary disposition to defendants on the association-wide easement theories and, after a bench trial, rejected the two individual plaintiffs’ prescriptive-easement claims. On appeal, the court held that Unverzagt did not control because that decision referred only to the 1888 Macatawa Park plat and allowed only uses “reasonably necessary and convenient to the proper enjoyment of the easement,” not recreational foot traffic through HS31. The court next held that plaintiffs’ implied-easement theory failed because they produced no evidence of unity of title and because “our Supreme Court does not recognize quasi-easements for rights of way” of this type. The court also held that the common-law-private-dedication claim failed because plaintiffs offered no evidence of “a clear expression of an intent to dedicate made by an identifiable owner,” and historical maps, books, and flyers might bear on scope but “do[] not create a dedication.” The court finally held that the two lot owners did not prove adverse use for a prescriptive easement because defendants and their predecessors improved the paths and “generally left them open for others to freely use,” so the use was “‘permissive only, and under an implied license.’” Affirmed.

Termination under § 19b(3)(c)(i); Child’s best interests; In re White; Effect of relative placement; In re Atchley; Focus on the child; In re Moss; Parent-agency treatment plan (PATP)

Holding that clear and convincing evidence supported terminating respondent-mother’s parental rights under § (c)(i), and that doing so was in the child’s (AAHP) best interests, the court affirmed the termination order. The case manager noted at the termination hearing that AAHP had been in DHHS custody “for 999 days. The case manager explained respondent was diagnosed with bipolar I disorder but contested her diagnosis. Respondent believed she could manage her mental-health issues on her own and never remained compliant with her medications, despite the recommendations of multiple psychological evaluations. [She] was voluntarily and involuntarily hospitalized multiple times during this case. There was sufficient evidence establishing [she] was not compliant with her therapy or medication requirements.” In addition to failing to rectify the issues that led to adjudication, she “expressed her belief she did not need mental-health treatment multiple times, demonstrating the reasons leading to adjudication would continue to exist.” Further, she “struggled to maintain stable housing and employment.” As to the child’s best interests, while “respondent’s psychological evaluator testified respondent could, with time and treatment, eventually become a fit parent, [she] demonstrated she was disinterested in her mental-health care.” The court noted that “psychological evaluations could not provide the time frame it would take for [her] to become fit. AAHP made it clear from early in this case he desired permanency and stability. [His] therapist and foster parent testified respondent’s instability caused AAHP to worry and caused [him] to become the caretaker in the relationship. Best-interest proceedings focus on the child.” The court concluded that there “was sufficient testimony establishing AAHP desired permanency, and respondent was unable to provide him that while AAHP’s adoptive family did.” And while respondent asserted “she was not provided adequate services to comply with her PATP[,]” the court determined that she “was given ample time to comply with the PATP before DHHS filed the supplemental petition seeking termination.”

Jurisdiction over the children; MCL 712A.2(b)(1) & (2); The doctrine of anticipatory neglect; Termination under §§ 19b(3)(b)(i), (j), (k)(ii), & (k)(ix); Children’s best interests

The court detected “no clear error in the trial court’s determinations as to jurisdiction and statutory grounds for termination, but [concluded] that further proceedings are required for the trial court to complete its best-interest analysis.” Thus, it vacated the trial court’s termination order and remanded. The court noted that the trial court explained that, under the doctrine of anticipatory neglect, respondent-father’s “sexual abuse of JFS put CAZ and MAZ at” risk. It found that because “respondent is the biological father of JFS, CAZ, and MAZ, the three children are siblings.” Respondent’s sexual abuse of JFS was probative of how he may treat CAZ and MAZ, “and provided the trial court a sufficient evidentiary basis to conclude by a preponderance of the evidence that it could exercise jurisdiction over the children under MCL 712A.2(b)(1) and (2).” In addition, the trial court did not err by finding “statutory grounds for termination of respondent’s parental rights under” §§ (b)(i), (j), (k)(ii), and (k)(ix). It also did not err in holding, under §§ (k)(ii) and (ix), “that respondent abused CAZ and MAZ’s sibling, JFS, and that the abuse included” CSC involving penetration. Further, the children’s “relation does not impede application of the doctrine of anticipatory neglect in finding sufficient evidence to terminate respondent’s parental rights under” §§ (k)(ii) and (ix). Finally, the court held that even if, as respondent contended, “JFS is not CAZ and MAZ’s sibling, respondent’s conduct would still support a finding that there was a reasonable likelihood that CAZ and MAZ would be harmed if returned to respondent’s home.” Statutory grounds of termination would thus still exist under § (j).