Unfair labor-practices; Damages; Vaca v Sipes; Bowen v United States Postal Serv; Waiver; Law of the case doctrine; Distinguishing Rott v Rott; Police Officers Association of Michigan (POAM); Michigan Employment Relations Commission (MERC); Administrative Law Judge (ALJ)

The court concluded that MERC did not err by apportioning any damages to respondent-POAM. Also, it found no error in MERC’s conclusion that even if the waiver of POAM’s argument as to the arbitrability of the charging party’s grievance “was timely raised the result would not have changed.” Finally, MERC did not err by applying the law of the case. “Charging party initiated unfair labor-practices charges against his former employer,” and respondent. “According to respondent, charging party failed to demonstrate how any of his damages stemmed from respondent’s failure to pursue a grievance on his behalf.” The court “already affirmed MERC’s prior determination that charging party was terminated without just cause.” Thus, MERC correctly found “that the ALJ did not need to analyze whether charging party’s grievance would have been successful on the merits because this had already been decided by this Court on appeal and prior to MERC’s remand order. Moving to the apportionment of damages, we discern no error in MERC’s reasoning.” The court held that “it was incorrect for the ALJ to focus solely on the fact that charging party’s damages stemmed from his termination by the City because respondent’s actions increased such damages.” It determined that “the fact that charging party sought economic damages was also not dispositive because nothing in Vaca, Bowen, or their progeny suggest that the type of damages being sought has any bearing on the matter. Furthermore, MERC’s calculation of the damages was not erroneous.” Contrary to respondent’s claims, “MERC did not apportion all possible damages to respondent. Rather, by utilizing a hypothetical date on which an arbitrator could have rendered a decision in charging party’s favor, MERC only apportioned those damages that were increased as a result of respondent’s actions, along with any interim earnings subtracted.” The court also found “no error in the date MERC used for the hypothetical arbitration award.” Respondent argued “that MERC erred by determining that it had waived its argument regarding the arbitrability of charging party’s grievance.” While the court agreed “that respondent raised this issue early in this case, we discern no error in MERC’s conclusion that even if was timely raised the result would not have changed.” Finally, respondent argued “that MERC erred by applying the law-of-the-case doctrine regarding whether charging party was terminated without just cause.” The court found that “Rott does not support respondent’s argument that courts may freely depart from the law-of-the-case doctrine if their prior decision was clearly erroneous and would result in manifest injustice.” Further, it concluded that even assuming “that the prior panel misstated MERC’s decision, the fact that respondent failed to follow any of the procedures in place to rectify mistakes made by this Court precludes a conclusion that the application of this doctrine would work a manifest injustice.” Affirmed.