Civil Service Commission for Wayne County v. Wayne County Bd. of Sup'rs, Docket Nos. 5431

• Decision Date: 27 February 1970
• Docket Number: Docket Nos. 5431,No. 1,6076,1
• Citation: 177 N.W.2d 449,22 Mich.App. 287
• Parties: , 73 L.R.R.M. (BNA) 2822, 63 Lab.Cas. P 52,322 CIVIL SERVICE COMMISSION FOR the COUNTY OF WAYNE, Plaintiff-Appellant and Appellee, v. WAYNE COUNTY BOARD OF SUPERVISORS and Wayne County Labor Relations Board, Defendants-Appellees, and Wayne County Board of Road Commissioners, Defendant-Appellant and Appellee
• Court: Court of Appeal of Michigan — District of US

Page 449

177 N.W.2d 449

22 Mich.App. 287, 73 L.R.R.M. (BNA) 2822,

63 Lab.Cas. P 52,322

CIVIL SERVICE COMMISSION FOR the COUNTY OF WAYNE, Plaintiff-Appellant and Appellee, v. WAYNE COUNTY BOARD OF SUPERVISORS and Wayne County Labor Relations Board, Defendants-Appellees and Wayne County Board of Road Commissioners Defendant-Appellant and Appellee.

Docket Nos. 5431, 6076.

Court of Appeals of Michigan, Division No. 1.

Feb. 27, 1970.

Released for Publication June 5, 1970.

Thomas V. LoCicero, Detroit, for Civil Service Comm., Wayne County; Fred Hustad, Detroit, Avery Weiswasser, Asst. Pros. Atty., Detroit, of counsel.

William L. Cahalan, Pros. Atty., by Aloysius J. Suchy and David R. Kaplan, Asst. Pros. Attys., Detroit, for Board of Supervisors and Labor Relations Board.

Clayton M. Foor and Robert E. Murphy, Detroit, for Board of County Road Commissioners; Theodore Sachs, Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, of counsel.

Before FITZGERALD, P.J., and LEVIN and T. M. BURNS, JJ.

FITZGERALD, Presiding Judge.

This Court is faced with two cases which have been consolidated for purposes of this appeal, the same statement of facts being applicable in both instances. The original actions dealt with and arose out of the amendment to the statute known as the 'Hutchinson Act'. It is concerned with the right of county employees to organize and bargain collectively with their respective governmental employers over rates of pay, wages, conditions of employment and hours of work.

The initial dispute arose on March 22, 1966, when the Wayne County Board of Supervisors adopted a resolution which established a three-member labor relations board for the express purpose of complying with the requirements of P.A. 1965, No 379, M.C.L.A. § 423.209 (Stat.Ann. 1968 Rev. § 17.455(9)), amending P.A.1947, No. 336, and establishing collective bargaining for public employees. The act provides that:

'It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.'

In § 15 of the act, collective bargaining is made an employer duty, the act specifically providing that:

'A public employer shall bargain collectively with the representative of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives.'

The Labor Relations Board, which consisted of representatives of the Board of Supervisors, Wayne County Civil Service Commission and the Wayne County Road Commission, began collective bargaining sessions. This, in effect, displaced the Civil Service Commission in bargaining for rates of pay and terms and conditions of employment.

In April, 1967, the Wayne County Civil Service Commission filed an action against the Wayne County Board of Supervisors, the Wayne County Road Commission and the Wayne County Labor Relations Board, seeking a declaratory judgment for determination of the collective bargaining rights of the respective parties. The case came on to be heard by a three-judge panel of the Wayne county circuit court.

On March 26, 1968, the court entered a declaratory judgment, with one judge dissenting, which determined that the county of Wayne was the employer under P.A.1965, No. 379, M.C.L.A. § 423.209 (Stat.Ann. 1968 Rev. § 17.455(9)), and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. All parts of P.A.1941, No. 370 (M.C.L.A. § 38.401 et seq. (Stat.Ann. 1961 Rev. § 5.1191(1) et seq.)), which were inconsistent were declared repealed by implication or suspended. ¹ Subsequently, on April 9, 1968, plaintiff filed a claim of appeal to the circuit court which was denied. The court also denied a motion for new trial and a motion to amend the judgment. On August 8, 1968, defendant Wayne County Board of Road Commissioners filed a claim of appeal.

We are primarily concerned with the issue of whether the trial court erred in its determination that the county of Wayne was the employer under P.A. 1965, No. 379, and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the Labor Relations Board. More succinctly stated, we are asked to determine who actually is the employer of employees of Wayne county for the purpose of collective bargaining and negotiation. We note that this problem exists because the legislature in drafting P.A. 1965, No. 379, failed to specifically define the term 'employer' for purposes of collective bargaining under the act.

It is the contention of the plaintiff Civil Service Commission that the county of Wayne is the employer and that the Civil Service Commission is the exclusive body to represent the county of Wayne and all bodies within the county in matters dealing with terms and conditions of employment, salaries and wages of all employees of this governmental unit in the classified service. On the other hand, defendant Board of Wayne County Road Commissioners avers that it is the employer of its own employees.

The Board of Wayne County Supervisors takes a slightly different tack and maintains that the county of Wayne is composed of joint employers and the Board of Supervisors is the branch of government within the county upon whom the duties and responsibilities arising under P.A. 1965, No. 379, are imposed.

We note that this whole action comes to us as a by-product of the passage of P.A. 1965, No. 379, Supra. After a careful examination of the pertinent provisions of this act, nowhere within it is the term 'public employer' defined. This oversight is the crux of the problem with which we are faced. Nowhere within the statutory confines of 'P.E.R.A.' can be found any standards to aid in this determination.

In reviewing the dissenting opinion entered in this cause, we find the general characteristics of identification of an employer are: 1) that they select and engage the employee; 2) that they pay the wages; 3) that they have the power of dismissal; 4) that they have the power and control over the employee's conduct (35 Am.Jur., Master & Servant, § 3, p. 445). A most significant requisite of one who is an employer is his right to exercise control over the method by which the employee carries out his work. Hence, before we can reach a proper conclusion to this controversy it is necessary to determine what authority and power each of the parties to this litigation have with regard to the employment relationship.

The powers of the Wayne County Civil Service Commission are set forth in P.A. 1941, No. 370, (M.C.L.A. § 38.409 (Stat.Ann. 1961 Rev. § 5.1191(9))). Thus, the Civil Service Commission has authority to:

'Provide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the county service, and for such other matters pertaining to the carrying out of the provisions of this act * * *.'

Its powers are more specifically delineated in M.C.L.A. § 38.412 (Stat.Ann. 1969 Cum.Supp. § 5.1191(12)) which states:

'(a) It shall classify all the offices and positions of employment with reference to the examinations herein provided for, excepting as herein otherwise provided;

'(b) Shall from time to time make, in accordance with the provisions hereof, rules adapted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county;

'(c) Shall supervise the administration of the civil service rules, hold examinations thereunder from time to time, giving notice thereof, prepare and keep an eligible list of persons passing such examinations and certify the names of persons thereon to the appointing officers of the several departments;

'(d) Shall, by itself or otherwise, investigate the enforcement of the provisions of this act, of its own rules and of the action of appointees in the classified service. In the course of such investigation, the commission or its authorized representative, shall have the power to administer oaths, and the commission shall have power by its subpoena, to secure both the attendance and testimony of witnesses and the production of books and papers relevant to such investigation;

'(e) Shall provide, through the purchasing department of the county, all needed supplies for the use of the commission.

'(f) The classification shall be subdivided into groups and shall be based upon, and graded according to the duties and responsibilities of such positions, and shall be so arranged as to permit the filling of the higher grades through promotion. All salaries shall be uniform for like service in each grade of the classified service as the same shall be classified and standardized by the commission. Such classification and standardization of salaries shall not be final until approved by the board of supervisors and such salaries shall not be paid except in accordance with such classification and standardization;

'(g) Shall have such other powers and perform such other duties as may be necessary to carry out the provisions hereof.'

As can readily be seen from an examination of the aforementioned powers and duties, the Civil Service Commission is clothed with some of the characteristics of an employer. However, while the plaintiff must classify positions and submit uniform pay plans for standardizing salaries, it does not have exclusive control over...