AFSCME Council 25 v. Wayne County

• Decision Date: 08 October 1986
• Docket Number: Docket No. 84103
• Citation: 152 Mich.App. 87,393 N.W.2d 889
• Parties: , 125 L.R.R.M. (BNA) 2588 AFSCME COUNCIL 25, and Locals 25, 409, 1917, and 2928, Charging Parties/Appellees/Cross-Appellants, v. WAYNE COUNTY, Wayne County Board of Commissioners, and Wayne County Executive, Respondents/Appellants/Cross-Appellees, and City of Detroit, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 889

393 N.W.2d 889

152 Mich.App. 87, 125 L.R.R.M. (BNA) 2588

AFSCME COUNCIL 25, and Locals 25, 409, 1917, and 2928 Charging Parties/Appellees/Cross-Appellants, v. WAYNE COUNTY, Wayne County Board of Commissioners, and Wayne County Executive, Respondents/Appellants/Cross-Appellees and City of Detroit, Amicus Curiae.

Docket No. 84103.

Court of Appeals of Michigan.

Submitted Jan. 23, 1986.

Decided May 21, 1986.

Released for Publication Oct. 8, 1986.

Maurer and Kalls by George M. Maurer, Jr., and Greenspon, Scheff & Washington, P.C. by George B. Washington, Detroit, for charging parties/appellees/cross-appellants.

John D. O'Hair, Corp. Counsel, and Ellen C. Lindquist, Asst. Corp. Counsel, Detroit, for respondents/appellants/cross-appellees.

Donald Pailen, Corp. Counsel, Abigail Elias, Deputy Corp. Counsel, Thomas L. Walters and Trudy D. Archer, Asst. Corp. Counsels, amicus curiae, for the City of Detroit.

Before KELLY, P.J., and SHEPHERD and KNOBLOCK ^*, JJ.

KELLY, Presiding Judge.

This is an appeal from a decision of the Michigan Employment Relations Commission which held that respondents Wayne County, Wayne County Board of Commissioners and the Wayne County Executive had engaged in unfair labor practices by unilaterally changing wages, hours and other conditions of employment during the collective-bargaining process, contrary to Sec. 10(1)(e) of the public employment relations act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq. (PERA). At issue in this case is a significant principle of public sector labor law. The City of Detroit has filed an amicus curiae brief in support of respondents' position. Council 25 of the American Federation of State, County and Municipal Employees and its affiliated locals (AFSCME) have filed a cross-appeal challenging that portion of the commission's order limiting its make-whole relief through July 5, 1984. We have thoroughly reviewed the administrative record and briefs on appeal and we affirm all aspects of the commission's decision.

There is no dispute as to the essential facts in this case, as set forth in the findings of the hearing officer and adopted by the commission. This controversy arises out of a collective-bargaining agreement between the parties, which became effective December 1, 1979, and expired on June 30, 1982. Prior to the expiration of the agreement, the parties began negotiating a new contract and reached a tentative agreement on July 1, 1982, which essentially continued the terms of the earlier agreement. This tentative agreement was, however, subsequently rejected by the Wayne County Board of Commissioners and negotiations continued. In a letter dated August 27, 1982, respondents informed AFSCME that until either a new agreement or an impasse was reached, the earlier agreement would be continued with the exception of cost of living and arbitration provisions. ¹

Negotiations continued, during which time Wayne County's plan for reorganization of government went into effect, commencing with the election of a county executive, who took office on January 1, 1983. A second tentative agreement was reached between the parties in April of 1983 but was subsequently rejected by the AFSCME membership. Negotiations continued and the parties eventually agreed to mediation. Mediation proceedings were conducted on July 8 and July 11, 1983.

By letter of July 11, 1983, respondents advised AFSCME that they would no longer honor the expired collective-bargaining agreement. Respondents further informed AFSCME that forthcoming changes in conditions of employment would include the imposition of a four-day work week and corresponding pay decreases, as well as changes in procedures governing grievances, disciplinary measures, transfers, demotions, promotions, reclassifications and layoffs. Mediation nevertheless continued but a third tentative agreement was rejected by AFSCME membership on August 4, 1983. On August 8, 1983, AFSCME applied to the commission for an appointment of a fact-finder as provided under Sec. 25(1) of the labor mediation act, M.C.L. Sec. 423.1 et seq.; M.S.A. Sec. 17.454(1) et seq.

While that application was pending, AFSCME was informed by respondents' letter of August 9, 1983, that respondents viewed the membership's vote on August 4, 1983, as an impasse and that the changes described in the July 11, 1983, letter would be implemented on August 15, 1983. AFSCME denied the existence of an impasse and requested further bargaining. The parties continued to negotiate although the respondents did proceed to implement the proposed changes.

AFSCME filed unfair labor charges against respondents on July 21, 1983, and on August 23, 1983. These charges were consolidated and hearings were subsequently conducted in September of 1983 before a hearing officer who, on January 19, 1984, issued findings of fact and concluded therefrom that respondents had not engaged in any unfair labor practices under PERA. The hearing officer recommended the dismissal of AFSCME's charges.

Members of the commission disagreed with the hearing officer's conclusions of law and issued an opinion and order on December 12, 1984, concluding that respondents had violated their duty to bargain in good faith by implementing unilateral changes in mandatory subjects of bargaining during the negotiation process. At that time, the commission reserved its decision on the issuance of retroactive relief for AFSCME employees and allowed the parties until January 31, 1985, to settle their differences on the relief issue without administrative intervention. On March 29, 1985, MERC issued a supplemental opinion and ordered respondents to cease and desist from implementing the disputed changes in conditions of employment and to make employees whole for any monetary losses suffered during the period commencing August 15, 1983, and ending July 5, 1984.

The general principles of law governing an employer's right to implement changes in wages and other working conditions during the negotiation process are well established and have been set forth by this Court in Local 1467, International Ass'n of Firefighters, AFL-CIO v. Portage, 134 Mich.App. 466, 472-473, 352 N.W.2d 284 (1984):

"At the expiration of a labor contract, a public employer is charged with the duty to bargain in good faith pursuant to a proposed new contract with regard to 'wages, hours, and other terms and conditions of employment'. MCL 423.215; MSA 17.455(15). Subjects of bargaining included in this phrase are referred to as 'mandatory subjects' of bargaining. At contract expiration, those 'wages, hours, and other terms and conditions of employment' established by the contract which are 'mandatory subjects' of bargaining survive the contract by operation of law during the bargaining process. The public employer, thus, has the continuing obligation during the bargaining process to apply those 'wages, hours, and other terms and conditions of employment' so designated as 'mandatory subjects' until such time as impasse is reached in the bargaining process.

"Neither party may take unilateral action on a 'mandatory subject' of bargaining absent an impasse in negotiations. An employer taking unilateral action on a 'mandatory subject' of bargaining prior to impasse in negotiations has committed an unfair labor practice. MCL 423.210(1)(e); MSA 17.455(10)(1)(e). This prohibition against unilateral action prior to impasse serves to foster labor peace and must be liberally construed, particularly in light of the prohibition against striking by public employees set forth in MCL 423.202; MSA 17.455(2)." (Citations and footnote omitted.) See also, Ottawa County v. Jaklinski, 423 Mich. 1, 12-13, 377 N.W.2d 668 (1985).

In this case, we must consider what effect, if any, the initiation of fact-finding proceedings has on the employer's ability to make unilateral changes in conditions of employment without risk of committing an unfair labor practice under M.C.L. Sec. 423.210(1)(e); M.S.A. Sec. 17.455(10)(1)(e).

The commission's fact-finding function is created under the labor mediation act rather than under PERA and is thus properly viewed as a step in the mediation process:

"When in the course of mediation under section 7 of Act No. 336 of the Public Acts of 1947, as amended, being section 423.207 of the Michigan Compiled Laws, it shall become apparent to the commission that matters in disagreement between the parties might be more readily settled if the facts involved in the disagreement were determined and publicly known, the commission may make written findings with respect to the matters in disagreement. The findings shall not be binding upon the parties but shall be made public." M.C.L. Sec. 423.25(1); M.S.A. Sec. 17.454(27)(1).

AFSCME requested that the commission intervene in the mediation process as a fact-finder on August 8, 1983, exactly one month after the commencement of mediation and four days after its membership had rejected the third tentative "mediated" agreement. Respondents informed AFSCME by letter of August 9, 1983, that the proposed changes in wages, hours and working conditions would become effective August 15, 1983. The issue is whether respondents violated their duty to bargain in good faith by announcing and unilaterally implementing the changes after fact-finding proceedings had been initiated, during the mediation process.

In its opinion of December 12, 1984, the commission concluded:

"We will continue to regard factfinding as an integral part of the dispute resolution processes provided by the Legislature. We decide today that implementation of a last best offer when factfinding is pending is objectionable conduct by the Employer, for the reason that it obviously tends to forestall the possibility of reaching agreement through the use of the factfinding process. We conclude that by implementing its last best offer when factfinding had been initiated but not completed, Respondent violated...