Unfair labor practices (ULPs); The National Labor Relations Act (NLRA); Multiemployer bargaining; Withdrawal from a multiemployer CBA; Retail Assocs, Inc (NLRB); Charles D. Bonanno Linen Serv, Inc v NLRB; Whether the withdrawal was timely; Whether the employer violated the NLRA; NLRA §§ 8(a)(1) & (5); Claw back of fringe-benefit fund contributions; “Economic exigency”; Increasing bargaining-unit employees’ wages without bargaining with the Union; Whether a strike was a ULP strike or an economic strike; Michigan Infrastructure & Transportation Association (MITA); Administrative Law Judge (ALJ)

On petition for review of an NLRB order, the court held that the intervenor-Union’s withdrawal from a multiemployer CBA was timely and lawful, and that petitioner-employer (Rieth-Riley) committed ULPs. Thus, it denied Rieth-Riley’s petition for review and granted the NLRB’s cross-application for enforcement of its order requiring Rieth-Riley to “bargain in good faith.” Rieth-Riley is based in Indiana and engaged with the Union through the MITA. When the CBA to which MITA and the Union were parties was about to expire, the Union told the MITA it wished to terminate the CBA because it would rather bargain with the individual employers. After it expired, conflicts arose. Eventually there was a strike and a lockout. The NLRB’s General Counsel brought a ULP complaint against Rieth-Riley alleging that the company had violated the NLRA. The ALJ found that the Union’s withdrawal from multiemployer bargaining was timely and lawful. He also concluded “that Rieth-Riley violated the NLRA by locking out Union members to pressure [it] to bargain on a multiemployer basis. Third, he determined that Rieth-Riley violated the NLRA by unilaterally granting employees wage increases in 2018 and 2020 and by making certain deductions from their paychecks. Fourth, he found that the 2019 strike was an economic strike” rather than a ULP strike. The NLRB reversed the fourth finding but otherwise affirmed. The court first held that the “Union timely withdrew from the multiemployer unit.” It notified MITA of its intent to do so “before negotiations on a new agreement began. Nothing more was required to withdraw from the multiemployer unit.” The court rejected Rieth-Riley’s arguments that this result did not comport with Retail Assocs, and that negotiations on a new agreement had begun. It next considered whether “Rieth-Riley’s clawback of benefit-fund contributions and its grant of wage increases in 2020, both of which [it] carried out without bargaining with the Union” violated NLRA §§ 8(a)(1) and (5). It held that because “Rieth-Riley failed to prove an economic exigency, its clawback of benefit-fund contributions” did so. As the ALJ stated, “‘[t]he length of time that elapsed before [Rieth-Riley] acted contradicts the claim that time was of the essence and an economic exigency existed.’” Substantial evidence also supported “the Board’s determination that Rieth-Riley violated the NLRA by unilaterally increasing its employees’ wages in 2020.” Finally, as to the strike issue, the court found that because “the company’s 2018 lockout was an [ULP], sufficient evidence exists connecting the lockout to the strike.”

Sufficiency of the evidence for a second-degree murder conviction; Self-defense; MCL 780.972(1)(a); Necessity of deadly force; Lying to officers; Attempts to hide evidence; Malice; Great weight of the evidence

Holding that there was sufficient evidence to support defendant-Holden’s second-degree murder conviction and that it was not against the great weight of the evidence, the court affirmed. He was also convicted of felony-firearm and lying to a peace officer during a violent crime investigation. He fatally shot the victim (H) during an argument in defendant’s apartment. He contended “there was insufficient evidence for a reasonable fact-finder to determine that (1) the shooting was not justified by self-defense or (2) that [he] acted with malice when he shot” H. But the court concluded “there was sufficient evidence for a rational fact-finder to determine that deadly force was not necessary to avoid the danger that decedent posed. Neither party disputes that decedent arrived at Holden’s home armed and later tried to physically fight and slapped Holden. And two witnesses testified that decedent was not holding his firearm when Holden shot him. Thus, viewing this evidence in the light most favorable to the prosecution, the loaded firearm was not on decedent’s person and a slap is not sufficient provocation to warrant deadly force.” Further, a video showed that he continued to shoot H even after H “tried to retreat; the shot while decedent’s back was turned supports this.” The court added that, even “if one thinks it unrealistic that one would come forward to police after fatally shooting someone in their home, our caselaw is clear that lying to two different officers when questioned about the shooting can discredit Holden’s self-defense argument.” Defendant also “tried to hide evidence of the shooting.” As to his malice argument, by asserting “he acted in self-defense, Holden necessarily conceded that there was sufficient evidence that he acted with malice.” His great weight of the evidence claim primarily restated his failed sufficiency of the evidence argument. While he alternatively asserted that the great weight of the evidence supported a finding that “the murder was mitigated to voluntary manslaughter” the court noted the jury was instructed on that offense and still found him guilty of second-degree murder, a determination it would not second-guess.

Above guidelines sentencing; Proportionality; Articulation of the reason for the departure; Consideration of defendant’s pregnancy; Distinguishing People v Hughes (Unpub)

The court agreed in part that defendant-Luna’s above guidelines sentences of 3 to 10 years “violated the principle of proportionality.” Thus, it vacated and remanded for resentencing for the trial court to articulate the rationale for the extent of any departure. Luna pled guilty to possession of meth in two separate cases. She “was initially sentenced to probation for both offenses. One year into her three-year probationary term, Luna was unsuccessfully discharged from mental health court, thereby violating her probation.” The trial court “nearly doubled the top end of the guidelines range for her” meth offenses in imposing the 3 to 10-year sentence. At sentencing, it summarized Officer B’s “report of Luna’s probation violation.” The court requested the report, but it was not available for it to review. The trial court determined that her violations of the terms of her probation warranted a prison sentence. But the court noted that “Luna’s maximum minimum sentence under the guidelines was 17 months which itself would have guaranteed a minimum sentence in prison. In addressing the reasons to depart from the guidelines, the trial court emphasized ‘a term of incarceration was in order’ and that ‘there is no way that she can remain on probation.’ But, again, a sentence within the guidelines would have achieved those disciplinary goals.” The court declined “to sua sponte fill in the gaps” in the trial court’s rationale “because doing so would be contrary to our highly deferential standard of review and to our own jurisprudence.” Luna argued “that her pregnancy should have been considered a mitigating factor, but it was instead treated as aggravating by the trial court.” However, the court found that it appeared the trial court did not treat it as such. This case differed from “Hughes. Here, after issuing a sentence and on its own initiative, the trial court concluded the sentencing hearing with the statement, ‘Let’s hope to God that whatever baby you’re going to have in prison is taken away so that that baby has a chance.’” This did “not appear to have been the rationale for the departure sentence, so it” did not affect the disposition of the appeal. But the court acknowledged “that the comment was inappropriate. Judges should refrain from expressing personal views on a defendant’s parenting when, as was the case here, such a statement is not relevant to the issues before [it], and particularly after a sentence has been imposed.”

Admissibility of the contents of defendant’s cell phone; Validity of the search warrant; The particularity requirement; People v Carson; Whether an error affected defendant’s substantial rights; Testimony about a statement the witness allegedly heard defendant make; Whether a mistrial was warranted; People v Lane; Prejudice; Sentencing; Modification of the judgments of sentence (JOS) to include lifetime electronic monitoring (LEM); MCR 6.429(A); Ineffective assistance of counsel; Failure to obtain a written order consolidating defendant’s cases

While the court concluded that a search warrant was constitutionally invalid and photos of the victim (MS) found on defendant’s cell phone were erroneously admitted, it held that he did not show his substantial rights were affected by the error. It also rejected his claim that the trial court should have declared a mistrial based on a witness’s testimony. Further, the trial court “acted within its authority to sua sponte correct” his invalid sentences to impose statutorily-required LEM. Finally, his ineffective assistance of counsel claims failed. He was convicted of CSC I, II, and III in these consolidated cases. He first challenged the admission of the contents of his cell phone, based on the Fourth Amendment’s particularity requirement. Reviewing the issue for plain error. the court found that the search warrant at issue here was “virtually indistinguishable from the” one the Michigan Supreme Court held was invalid in Carson and thus, there was no reason for it to rule differently in this case. But it determined that defendant was not entitled to relief. It noted that the “photos were fairly innocuous in nature, in that they did not depict anything overtly sexual with regard to MS. And even absent admission of the photos, there was ample evidence demonstrating defendant’s guilt. MS testified at length (and in great detail) about the multiple sexual acts between her and defendant, which began when MS was 13 years old and included sexual contact, digital penetration, and oral penetration. MS also testified that [he] had given her a vibrator belonging to his wife when she attempted to end their sexual relationship, which [he] used on her during their subsequent sexual encounters, and the vibrator was admitted as evidence. Defendant’s wife also testified that [he] admitted to her that he had given her vibrator to MS and that he had kissed and inappropriately touched MS more than once. This testimony and evidence, irrespective of the photos, was more than enough for a jury to conclude that defendant was guilty of the charged offenses beyond a reasonable doubt, and” he failed to show “that the photos’ erroneous admission affected the outcome of his trial.” As to MS’s father’s testimony about a statement he allegedly overheard defendant make, the record indicated that any prejudice from it “was minimal and could have been further alleviated by a curative instruction to the jury if defendant had made such a request.” Affirmed.

Unfair labor practices (ULPs); The National Labor Relations Act (NLRA); Multiemployer bargaining; Withdrawal from a multiemployer CBA; Retail Assocs, Inc (NLRB); Charles D. Bonanno Linen Serv, Inc v NLRB; Whether the withdrawal was timely; Whether the employer violated the NLRA; NLRA §§ 8(a)(1) & (5); Claw back of fringe-benefit fund contributions; “Economic exigency”; Increasing bargaining-unit employees’ wages without bargaining with the Union; Whether a strike was a ULP strike or an economic strike; Michigan Infrastructure & Transportation Association (MITA); Administrative Law Judge (ALJ)

On petition for review of an NLRB order, the court held that the intervenor-Union’s withdrawal from a multiemployer CBA was timely and lawful, and that petitioner-employer (Rieth-Riley) committed ULPs. Thus, it denied Rieth-Riley’s petition for review and granted the NLRB’s cross-application for enforcement of its order requiring Rieth-Riley to “bargain in good faith.” Rieth-Riley is based in Indiana and engaged with the Union through the MITA. When the CBA to which MITA and the Union were parties was about to expire, the Union told the MITA it wished to terminate the CBA because it would rather bargain with the individual employers. After it expired, conflicts arose. Eventually there was a strike and a lockout. The NLRB’s General Counsel brought a ULP complaint against Rieth-Riley alleging that the company had violated the NLRA. The ALJ found that the Union’s withdrawal from multiemployer bargaining was timely and lawful. He also concluded “that Rieth-Riley violated the NLRA by locking out Union members to pressure [it] to bargain on a multiemployer basis. Third, he determined that Rieth-Riley violated the NLRA by unilaterally granting employees wage increases in 2018 and 2020 and by making certain deductions from their paychecks. Fourth, he found that the 2019 strike was an economic strike” rather than a ULP strike. The NLRB reversed the fourth finding but otherwise affirmed. The court first held that the “Union timely withdrew from the multiemployer unit.” It notified MITA of its intent to do so “before negotiations on a new agreement began. Nothing more was required to withdraw from the multiemployer unit.” The court rejected Rieth-Riley’s arguments that this result did not comport with Retail Assocs, and that negotiations on a new agreement had begun. It next considered whether “Rieth-Riley’s clawback of benefit-fund contributions and its grant of wage increases in 2020, both of which [it] carried out without bargaining with the Union” violated NLRA §§ 8(a)(1) and (5). It held that because “Rieth-Riley failed to prove an economic exigency, its clawback of benefit-fund contributions” did so. As the ALJ stated, “‘[t]he length of time that elapsed before [Rieth-Riley] acted contradicts the claim that time was of the essence and an economic exigency existed.’” Substantial evidence also supported “the Board’s determination that Rieth-Riley violated the NLRA by unilaterally increasing its employees’ wages in 2020.” Finally, as to the strike issue, the court found that because “the company’s 2018 lockout was an [ULP], sufficient evidence exists connecting the lockout to the strike.”

Invasion of privacy & intentional infliction of emotional distress (IIED); Statute of limitations; Distinguishing Green v Lansing Automakers Fed Credit Union (Unpub); Township of Fraser v Haney; Statutory claim under MCL 750.539d

The court concluded plaintiffs’ lawsuit asserting invasion of privacy and IIED claims was timely under Fraser. The trial court erred in granting defendants summary disposition when discovery was incomplete, and in ruling they “were entitled to judgment as a matter of law on common law invasion of privacy.” While it did not err in dismissing the statutory privacy claim, it should not have granted summary disposition on the IIED claim “absent a definitive showing that defendants’ cameras cannot film inside plaintiffs’ home.” The case arose out of a dispute between the parties “over the placement of surveillance security cameras on defendants’ property.” Applying the reasoning in Fraser, the court concluded plaintiffs were not precluded from bringing this “suit simply because they did not bring it immediately upon the installation of the cameras. Under Fraser, defendants allegedly violate the law as long as they retain their surveillance of plaintiffs’ property, and plaintiffs seek to remedy the violations occurring within the statutory period of limitations—the three-year period preceding this suit. That time period also applies to their” IIED claim. Given the court’s “analysis under Fraser, whether defendants fraudulently concealed the operation of their cameras” was irrelevant. Thus, defendants did not show “the wrong occurred when they installed the cameras more than three years before suit. Rather, the wrongs occurred when the recordings were made under the analysis in Fraser, and those recordings occurred within three years of plaintiffs’ suit.” Defendants were “not entitled to judgment as a matter of law on the basis of the statute of limitations.” The court also agreed with plaintiffs that “the trial court erred in granting summary disposition before discovery was complete in this case.” Conflicting expert testimony, “coupled with the truncated time allotted to” one expert for full discovery, showed that a genuine issue of material fact existed as to “whether defendants’ cameras can film inside plaintiffs’ home. Given the disputed facts, the trial court prematurely granted” defendants summary disposition. Finally, plaintiffs “set forth sufficient facts to create a genuine issue of material fact” on their common-law invasion of privacy/intrusion upon seclusion claim. The court found that the “trial court erred in ruling defendants were entitled to judgment as a matter of law on this issue.” But as to the statutory claim, plaintiffs “produced no evidence to rebut defendants’ assertion that the security system does not record sound.” Reversed in part and remanded.

Invasion of privacy & intentional infliction of emotional distress (IIED); Statute of limitations; Distinguishing Green v Lansing Automakers Fed Credit Union (Unpub); Township of Fraser v Haney; Statutory claim under MCL 750.539d

The court concluded plaintiffs’ lawsuit asserting invasion of privacy and IIED claims was timely under Fraser. The trial court erred in granting defendants summary disposition when discovery was incomplete, and in ruling they “were entitled to judgment as a matter of law on common law invasion of privacy.” While it did not err in dismissing the statutory privacy claim, it should not have granted summary disposition on the IIED claim “absent a definitive showing that defendants’ cameras cannot film inside plaintiffs’ home.” The case arose out of a dispute between the parties “over the placement of surveillance security cameras on defendants’ property.” Applying the reasoning in Fraser, the court concluded plaintiffs were not precluded from bringing this “suit simply because they did not bring it immediately upon the installation of the cameras. Under Fraser, defendants allegedly violate the law as long as they retain their surveillance of plaintiffs’ property, and plaintiffs seek to remedy the violations occurring within the statutory period of limitations—the three-year period preceding this suit. That time period also applies to their” IIED claim. Given the court’s “analysis under Fraser, whether defendants fraudulently concealed the operation of their cameras” was irrelevant. Thus, defendants did not show “the wrong occurred when they installed the cameras more than three years before suit. Rather, the wrongs occurred when the recordings were made under the analysis in Fraser, and those recordings occurred within three years of plaintiffs’ suit.” Defendants were “not entitled to judgment as a matter of law on the basis of the statute of limitations.” The court also agreed with plaintiffs that “the trial court erred in granting summary disposition before discovery was complete in this case.” Conflicting expert testimony, “coupled with the truncated time allotted to” one expert for full discovery, showed that a genuine issue of material fact existed as to “whether defendants’ cameras can film inside plaintiffs’ home. Given the disputed facts, the trial court prematurely granted” defendants summary disposition. Finally, plaintiffs “set forth sufficient facts to create a genuine issue of material fact” on their common-law invasion of privacy/intrusion upon seclusion claim. The court found that the “trial court erred in ruling defendants were entitled to judgment as a matter of law on this issue.” But as to the statutory claim, plaintiffs “produced no evidence to rebut defendants’ assertion that the security system does not record sound.” Reversed in part and remanded.

Termination under § 19b(3)(c)(i); In re White; Reasonable reunification efforts; In re Hicks/Brown; In re Frey; Children’s best interests; In re Olive/Metts; Doctrine of anticipatory neglect

The court held that clear and convincing evidence supported termination of both respondents’ parental rights under § (c)(i), that the DHHS made reasonable reunification efforts, and that termination was in the children’s best interests. Thus, it affirmed the orders terminating respondents’ parental rights. Over “182 days had elapsed since the issuance of an initial dispositional order.” As to respondent-mother, one of the conditions leading to adjudication was her mental health. After a psychological evaluation it was recommended that she “participate in parenting coaching, have supportive visitation, and continue individual therapy.” There was testimony that the mother “did not successfully complete individual therapy.” She also failed to follow “the recommendations from the psychiatric evaluation including taking prescribed medication and she was not participating in services to address her mental health. There was no indication that [her] mental health was under control.” Due to her failure to follow the recommendations “or participate in individual therapy, [she] did not accomplish any meaningful change in her mental health and therefore her ability to care for the children.” Evidence also showed “that she failed to benefit from the parenting classes and improve her parenting ability.” As to respondent-father, one of the conditions leading to adjudication was substance abuse. While he asserted that this was under control, he “tested positive for fentanyl, heroin, THC, and alcohol. Despite receiving methadone treatment for more than a year, [his] substance-abuse issues were not under control.” Over two years after the case service plan was ordered, he “continued to engage in the same behavior and was still dependent on substances[.]” He also was still unable to financially support the children. As to the children’s best interests, “the evidence showed that the bond between [the] mother and the children was not healthy for” either child. Her parenting ability, visitation history, and their “need for permanency, stability, and finality” also weighed in favor of termination. The lack of a bond, his parenting ability, and his failure “to comply with the substance-abuse part of his case service plan” and to obtain a legal source of income, along with the children’s needs, weighed in favor of terminating the father’s rights.