American Fed'n of State, Cnty. & Municipal Emps., Council 25 v. Wayne Cnty.

Decision Date24 March 2011
Docket NumberDocket No. 298655.
Citation292 Mich.App. 68,190 L.R.R.M. (BNA) 2749,811 N.W.2d 4
CourtCourt of Appeal of Michigan — District of US


Recognized as Unconstitutional

M.C.L.A. §§ 600.591, 600.593a(3, 4, 5, 6, 7, 8, 9, 10), 600.837, 600.8271, 600.8273, 600.8274.

Miller Cohen, P.L.C. (by Bruce A. Miller and Richard G. Mack, Jr.), Detroit, for the American Federation of State, County and Municipal Employees, Council 25.

Marianne Talon, Corporation Counsel, and Cheryl Yapo, Assistant Corporation Counsel, for Wayne County.Allan Falk, P.C. (by Allan Falk), Okemos, for the Wayne Circuit Court.

Before: MURPHY, C.J., and STEPHENS and M.J. KELLY, JJ.


In this case, intervening defendant, the Wayne Circuit Court (WCC), argued that its judges have the exclusive authority to make the determination with respect to the assignment or selection of a deputy circuit court clerk (hereafter court clerk”) to serve in a judge's courtroom, as reflected in Local Administrative Order No. 2005–06 (LAO 2005–06).1 PLAINTIFF, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAl Employees, Council 25 (hereafter “the union”), contended that the assignment is solely governed and controlled by the collective-bargaining agreement (CBA) between the union and defendant, Wayne County (hereafter “the county”), as implemented by the Wayne County Clerk (hereafter “the county clerk”) and as interpreted in an underlying arbitration ruling that was entered before the adoption of LAO 2005–06. The county declined to take a stance on the merit of the arguments posed by the WCC and the union did not offer its own resolution of the issues presented. The trial court, sitting by assignment, sided with the union, entering an order granting summary disposition in favor of the union and denying the WCC's competing motion for summary disposition. We agree with the position proffered by the WCC. Accordingly, we reverse the trial court's order and remand for entry of an order granting summary disposition in favor of the WCC.


On March 30, 2007, the union filed a “complaint to compel” against the county, alleging that the union is a labor organization for purposes of the public employment relations act (PERA), MCL 423.201 et seq. , that it represents employees engaged in public employment in Wayne County, that the county is the “public employer” of these employees for purposes of PERA, and that the union and the county entered into the CBA at issue, effective December 1, 2000. According to the union, the CBA covered various classifications of county employees , including court clerks, and the CBA provided the procedure for processing and adjusting grievances, culminating in binding arbitration upon an impasse. The union alleged that in 2002 it filed two grievances on behalf of court clerks after the county failed to post and fill a court clerk vacancy in a juvenile court courtroom in accordance with the CBA. The union specifically complained that the county failed to comply with the CBA, as construed by the union, when it did not fill the position on the basis of seniority and improperly limited the pool of applicants. The union maintained that the arbitrator issued an opinion and award in December 2004, finding in favor of the union and the grieving employees with respect to the grievances and interpretation of the CBA. The union alleged that the county had refused since January 2007 to comply with the arbitrator's ruling, posting and filling court clerk vacancies in certain courtrooms without regard to seniority and absent consideration of the appropriate applicant pool. In its prayer for relief, the union requested that the trial court order the county to comply with the arbitration ruling and to repost and refill the vacancies in accordance with the ruling and the CBA.

The arbitrator's written ruling and the CBA provide additional details and enlightenment. We initially note that under the CBA, § 10.04, Step 5F, there could be no appeal from the arbitrator's decision if rendered in a manner consistent with the arbitrator's jurisdiction and authority as provided under the CBA, and the decision was deemed final and binding “on the Employer, on the employee or employees, and the Union.” Pursuant to §§ 17.01 and 17.02(A) of the CBA, when there exists an intradepartmental job vacancy resulting from the creation of a new position, a transfer, a resignation, a termination, a retirement, or other means, “an employee who holds the same classification and has completed one (1) year of service within the division may exercise his or her seniority for the selection of a job.” The CBA also provides, under § 17.02(G), that [a] senior employee deemed not qualified for a job ... shall have recourse to the grievance procedure.” These CBA sections are general in scope and not specifically tailored to court clerks or any other particular employment classification. In its written ruling, the arbitrator concluded:

Per the contract language[,] a vacant position is to be awarded to the employee, in the section of the division having the vacant position, who (1) holds the same classification, (2) has completed one year of service within the division and (3) elects to exercise his or her seniority. Under the CBA, subordination of seniority is permitted only upon a determination that a senior employee is not qualified for a job. There is no contention in this matter that any of the court clerks lack the knowledge, skills and ability required to serve in any courtroom at the [Lincoln Hall of Justice] LHJ. Absent some ambiguity in the contract language at issue, the claim of a past practice is unavailing to modify a clear promise.

The County opines that prior to the instant matter the Union had not grieved or protested the County's restriction of the applicant pool for court clerk vacancies in judge-led courtrooms; thus, it may be found that the Union has acquiesced in the County's practice. One of the rules of contract interpretation related to the use of custom and practice is that a party's failure to file grievances or to protest past violations of a clear contract rule does not bar that party, after notice to the violator, from insisting upon compliance with the clear contract requirement in future cases. I conclude there is no basis for finding the Union acquiesced in the County's practice such that it should be held that the parties have, by their conduct, amended the CBA language on filling vacancies. I further conclude that the County violated the CBA when it limited the pool of court clerks who could apply for the ... position.

...<... i believe the foregoing discussions about what is required by class="ldml-entity">Article 17 and particularly section [17.02(A) compel] a determination that the County violated the CBA by filling the position at issue with an employee who had less seniority than other interested applicants. Given the findings and conclusions above, the grievances must be granted.

By way of further background, in April 2005, the WCC's chief judge penned a letter that was delivered to the county clerk, indicating that the WCC would not abide by the arbitrator's ruling. The chief judge enclosed a draft of a LAO that would supersede the arbitration award and be implemented unless the WCC and the county clerk could come to a consensual resolution. The chief judge noted that the WCC had not been aware of the arbitration proceedings until after the arbitrator's ruling was entered and that the time-honored practice over the past 30 years had been to allow the judges to choose the courtroom clerks to be assigned to their particular courtrooms. When no consensual resolution could be reached, the WCC promulgated LAO 2005–06, which was issued on June 2, 2005.

LAO 2005–06 provided that upon written request of the chief judge or the court administrator, the county clerk shall be responsible for assigning a court clerk to perform clerk functions in a presiding judge's or referee's courtroom, that the judge or referee assigned to a particular courtroom shall notify the county clerk of the person from the appropriate pool of interested, eligible clerks whom the judge or referee approves, and that the county clerk “shall then assign that person to perform court clerk functions in that courtroom.” Additionally, LAO 2005–06 provided that the county clerk “shall not permanently assign to any courtroom or transfer from any courtroom a court clerk without the prior written consent of the presiding courtroom judge or referee....” It further stated that on the written request of the court administrator, the county clerk shall remove a court clerk previously assigned to a courtroom and assign a different court clerk consistent with the procedures in LAO 2005–06. Finally, LAO 2005–06 provided that it superseded the arbitration ruling discussed above and that, where not in conflict with LAO 2005–06, all other terms and conditions of the county's civil service rules and the CBA shall prevail. Under LAO 2005–06, seniority does not govern the assignment of a court clerk to a judge's or referee's courtroom. LAO 2005–06 expressly indicated that the WCC was acting pursuant to its constitutional authority to direct the county clerk, sitting as the clerk of the circuit court, “to perform noncustodial ministerial duties pertaining to court administration....” The order further explained that, for purposes of efficiently and properly administering justice, the WCC had the authority to control its courtrooms and, more particularly, a presiding judge or referee had the authority to control his or her courtroom, which included control over the selection of a court clerk to work in the courtroom.

On June 8, 2005, the Michigan Supreme Court's State Court Administrative Office (SCAO) prepared a letter addressed to the chief judge of the WCC, which advised the chief judge that LAO 2005–06 conformed to...

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