AFSCME Local Local v. Wayne Cnty.

• Decision Date: 02 August 2012
• Docket Number: 306415.,Docket Nos. 306414
• Citation: 297 Mich.App. 489,824 N.W.2d 271
• Parties: AFSCME LOCAL 25 v. WAYNE COUNTY.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 489

824 N.W.2d 271

AFSCME LOCAL 25

v.WAYNE COUNTY.

Docket Nos. 306414, 306415.

Court of Appeals of Michigan.

Submitted April 11, 2012, at Detroit.

Decided Aug. 2, 2012, at 9:00 a.m.

Law Office of Eric I. Frankie PLC (by Eric I. Frankie, Royal Oak) and Miller Cohen, P.L.C. (by Richard G. Mack, Jr., Detroit, Ada Verloren, Detroit, and Austin W. Garrett), for Michigan AFSCME Council 25.

Bruce A. Campbell, Assistant Corporation Counsel, and Clark Hill PLC (by Thomas M.J. Hathaway, Detroit, Jeffrey A. Steele, Detroit, and David A. Hardesty) for Wayne County and the Wayne County Chief Executive Officer.

Before: M.J. KELLY, P.J., and FITZGERALD and DONOFRIO, JJ.

DONOFRIO, J.

Defendants, Wayne County (or the county) and the Wayne County Chief Executive Officer (the CEO), appeal both as of right and by leave granted the trial court's orders granting partial summary disposition in favor of intervening plaintiff, Michigan AFSCME Council 25, on its claim that defendants unlawfully imposed a wage reduction for county employees, and denying defendants' motion for reconsideration regarding the applicability of governmental immunity. Because defendants were not required to obtain approval from the Wayne County Commission before implementing the terms of the “last best offer,” we reverse and remand for entry of summary disposition in defendants' favor.

Plaintiffs (four AFSCME local unions) and defendants were parties to a collective-bargaining agreement (CBA). After the CBA expired, the parties unsuccessfully engaged in negotiations to reach a successor agreement. On October 21, 2010, plaintiffs filed this action, alleging that defendants were in violation of the Wayne County charter and had engaged in improper collective-bargaining practices. In a December 1, 2010, letter to plaintiffs, Mark Dukes, director of Wayne County's labor relations division, declared that negotiations had reached an impasse and indicated that the county would be implementing the terms of its “last best offer” (LBO), which required union employees to accept a 20–percent wage decrease and other concessions. The LBO was issued through the labor relations division, under the authority of the CEO, and was not submitted to or approved by the Wayne County Commission. The county filed a counterclaim for a declaratory judgment and injunctive relief. The trial court granted the motion to intervene of Council 25. Like plaintiffs, Council 25 alleged that the CEO violated Wayne County ordinances by imposing the wage decrease without commission approval.

The trial court granted defendants summary disposition of plaintiffs' claims for lack of jurisdiction¹ and, with respect to intervening plaintiff Council 25, the court granted partial summary disposition in its favor regarding the CEO's failure to obtain commission approval for the wage decrease. The trial court's order invalidated the CEO's imposition of the LBO because it fixed the rates of compensation for county employees without the commission's approval. The court stated that the “matter will proceed on the issue of damages.” The court specifically “declare[d] that under the Wayne County Charter and ordinances, to be lawful, any mandate that fixes the rate of compensation for county employees ... must have the approval of the Wayne County Commission.”

Defendants moved for reconsideration or, alternatively, for a stay of proceedings pending appeal, arguing for the first time that they were immune from suit pursuant to the governmental tort liability act (GTLA), MCL 691.1401 etseq., for violations of a county ordinance. Defendants contended that the trial court therefore erred by granting partial summary disposition in favor of Council 25. The trial court denied defendants' motion and request for a stay. Defendants now appeal in this Court.

“This Court reviews de novo a trial court's grant or denial of a motion for summary disposition.” Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). “A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone.” Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998). Summary disposition under subrule (C)(8) is appropriate when a claim “is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery.” Id.

Public employment labor relations are governed by the public employment relations act (PERA), MCL 423.201 et seq. The underlying purpose of PERA “is to resolve labor-management strife through collective bargaining.” Detroit Fire Fighters Ass'n, IAFF Local 344 v. Detroit, 482 Mich. 18, 28–29, 753 N.W.2d 579 (2008) (quotation marks and citation omitted). Following the expiration of a CBA, PERA requires that a public employer bargain collectively and in good faith with respect to wages, hours, and other terms and conditions of employment that are “mandatory subjects of bargaining....” Jackson Community College Classified & Technical Ass'n, MESPA v. Jackson Community College, 187 Mich.App. 708, 711–712, 468 N.W.2d 61 (1991) (quotation marks and citation omitted). These subjects “survive the expiration of an agreement by operation of law until an impasse in negotiation occurs.” Id. at 712, 468 N.W.2d 61. Consequently, “[b]efore an impasse in the bargaining process is reached, neither party may take unilateral action with respect to a mandatory subject of bargaining....” Id.

Section 15 of PERA, MCL 423.215(1), provides:

A public employer shall bargain collectively with the representatives of its employees as described in [MCL 423.211] and may make and enter into collective bargaining agreements with those representatives. Except as otherwise provided in this section, for the purposes of this section, to bargain collectively is to perform the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or to negotiate an agreement, or any question arising under the agreement, and to execute a written contract, ordinance, or resolution incorporating any agreement reached if requested by either party, but this obligation does not compel either party to agree to a proposal or make a concession.

In constructing this provision, our Supreme Court has recognized:

The primary obligation placed upon the parties in a collective bargaining setting is to meet and confer in good faith.... The law does not mandate that the parties ultimately reach agreement, nor does it dictate the substance of the terms on which the parties must bargain. In essence the requirements of good faith bargaining is [sic] simply that the parties manifest ... an attitude and conduct that will be conducive to reaching an agreement. [Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 53–54, 214 N.W.2d 803 (1974).]

If the parties have negotiated in good faith regarding mandatory subjects of bargaining, their statutory duty under PERA has been met. Id. at 55, 468 N.W.2d 61.

Intrinsic to the duty to collectively bargain in good faith is the authority to unilaterally implement an LBO when negotiations have reached an impasse. The parties here do not dispute this authority, which is a product of the evolution of the common law as it pertains to collective bargaining.² See Detroit Police Officers Ass'n, 391 Mich. at 56, 214 N.W.2d 803;AFSCME Council 25 v. Wayne Co., 152 Mich.App. 87, 93–94, 97, 393 N.W.2d 889 (1986). Council 25 argues, however, that because the LBO in this case affected wages and benefits, commission approval was required before the terms of the LBO could be implemented. This argument contravenes the notion that the authority to implement an LBO when an impasse is reached is part of the negotiation process itself. The United States Supreme Court has recognized that “impasse and an accompanying implementation of proposals constitute an integral part of the bargaining process.” Brown v. Pro Football, Inc., 518 U.S. 231, 239, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996). Similarly, the authority to unilaterally implement the terms of an LBO following impasse has been characterized as a “ bargaining ‘tactic [ ]’ ... utilized in the collective bargaining process.” Brown v. Pro Football, Inc., 50 F.3d 1041, 1054 (D.C.Cir.1995), aff'd 518 U.S. 231, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996). Thus, the implementation of an LBO is a continuation of the collective-bargaining process and inherent to the statutory obligation to negotiate in good faith to reach a CBA. Because the authority to implement the LBO was integral to the negotiation process, and § 4.323(b) of the Wayne County Charter required the labor relations division to “act for the County under the direction of the CEO in the negotiation and administration of collective bargaining contracts,” commission approval was not required before the LBO could be implemented.

In support of its argument that commission approval was required, Council 25 relies on, and the trial court found dispositive, Wayne County Ordinance 90–847,³ pertaining to the rulemaking authority of county agencies. “The rules of statutory construction apply to ordinances....” Wayne Co. v. Wayne Co. Retirement Comm., 267 Mich.App. 230, 244, 704 N.W.2d 117 (2005). “When interpreting statutory language, the primary goal is to discern and give effect to the legislative intent that may reasonably be inferred from the language of the statute.” Id. at 243, 704 N.W.2d 117. When language is unambiguous, courts must apply the provision as written. Id. We accord words used in a provision their common and ordinary meanings and “must ‘give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.’ ” Id. at 244, 704 N.W.2d 117, quoting State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644...