Whether the use of new monitor-defibrillators was subject to mandatory collective bargaining; Duty to bargain under the Public Employment Relations Act (PERA); MCL 423.210(1)(a), (b), & (e); MCL 423.215(1); Alleged unfair labor practice (ULP); Port Huron Educ Ass’n, MEA/NEA v Port Huron Area Sch Dist; Notice; St. Clair Intermediate Sch Dist v Intermediate Educ Ass’n/MI Educ Ass’n; Michigan Employment Relations Commission (MERC); Administrative law judge (ALJ); Collective bargaining agreement (CBA)

The court held that the MERC erred by adopting the ALJ’s finding that respondent-city’s fire department engaged in a ULP against members of charging party-union under the PERA by using data generated by newly-purchased monitor-defibrillators to discipline and discharge two employees for neglect of duty when providing emergency medical treatment to a patient. The union asserted that using the data for disciplinary purposes was improper because such use was subject to mandatory collective bargaining that had not occurred, thereby resulting in an impermissible unilateral alteration of the CBA. MERC adopted the ALJ’s recommendation that the city be ordered to bargain with the union on the use of the data as an investigative and disciplinary tool and to cease and desist using the data for disciplinary purposes until completion of the bargaining obligation. The court disagreed. “The record is clear that with respect to CPR, the two [u]nion members who lost their jobs were disciplined and discharged for failing to timely perform CPR and that the punishment had nothing to do with the quality of CPR. This undermines the entire premise of” the union’s argument. The record was “equally clear that the conclusion that no CPR was performed could have been determined by examining EKG and other data from” an old monitor. And there was no argument that data from an old monitor “could not be used in disciplinary proceedings under PERA.” As such, the court concluded that “no ULP occurred under the circumstances. Indeed, were we to rule otherwise, we would essentially be punishing the [d]epartment and the [c]ity for simply using new technology that plainly improved patient care. Yet the improvements in the technology that allowed for the recovery of data not previously available and that improved patient care were ultimately not used against the discharged employees.” Thus, the court held that the use of the monitor data “to discipline the employees for failure to perform CPR did not implicate mandatory collective bargaining.” It also found it “unnecessary to determine whether mandatory collective bargaining arises when [the] data is used to discipline an employee for not properly or adequately performing” CPR. The court noted that the MERC’s ruling “completely ignored the facts of record that data from” an old monitor, like data from one of the new monitors “could be used to establish that no CPR was performed in a given case. The important distinction here is that this was not a case that involved the quality of CPR. MERC’s factual findings to the contrary were not supported by competent, material, and substantial evidence on the whole record.” Reversed and remanded for entry of an order concluding that the city and the department did not engage in a ULP.