Dearborn Fire Fighters Union, Local No. 412, I.A.F.F. v. City of Dearborn, s. 3

CourtSupreme Court of Michigan
Citation231 N.W.2d 226,394 Mich. 229
Docket Number4,Nos. 3,s. 3
Parties, 90 L.R.R.M. (BNA) 2002, 77 Lab.Cas. P 53,740 DEARBORN FIRE FIGHTERS UNION, LOCAL NO. 412, I.A.F.F., a Voluntary Unincorporated Association, Plaintiff-Appellee, v. CITY OF DEARBORN, a Michigan Municipal Corporation, Defendant-Appellant. POLICE OFFICERS ASSOCIATION OF DEARBORN, a Voluntary Unincorporated Association, Plaintiff-Appellee, v. CITY OF DEARBORN, a Michigan Municipal Corporation, Defendant-Appellant.
Decision Date24 June 1975

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid by Theodore Sachs, Ronald R. Helveston, Detroit, for plaintiff-appellee, Dearborn Fire Fighters Union.

Joseph J. Burtell, Eugene A. Forbes, Dearborn, for defendant-appellant.

Law Offices of Winston L. Livingston by Winston L. Livingston and J. Douglas Korney, Detroit, for plaintiff-appellee, Police Officers Ass'n of Dearborn.

Louis C. Andrews, Jr., Secretary Mich. Ass'n of Municipal Attys., Ann Arbor, Albin J. Schinderle, City Atty. Big Rapids, Big Rapids, Hartman, Beier, Howlett, McConnell & Googasian, Bloomfield Hills, Duane Dunick, Atty. for Dearborn Heights, Dearborn, Peter Houk, Lansing City Atty., Lansing, for Mich. Ass'n of Municipal Attys., amicus curiae.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., Detroit, for Michigan Employment Relations Commission.

Before the Entire Bench, except SWAINSON, FITZGERALD and LINDEMER, JJ.

LEVIN, Justice.

The City of Dearborn challenges the constitutionality of the act (1969 P.A. 312) which provides for compulsory arbitration of police and fire department labor disputes. 1

In 1970, the City of Dearborn and unions representing its policemen and firemen (Police Officers Association of Dearborn and Dearborn Fire Fighters Union) attempted to negotiate new labor agreements. When the negotiations and subsequent mediations failed, the unions initiated arbitration proceedings under the act.

Each union chose a 'delegate' to its respective arbitration panel. The city refused to name a delegate to either panel. The absence of the city's delegate precluded selection by delegates to the panels of a third person to act as 'arbitrator/chairman'. Pursuant to the act, the chairman of the Michigan Employment Relations Commission appointed the arbitrator/chairman of the panels.

Each two-member panel conducted hearings and rendered a decision. Upon the city's refusal to comply with the decisions, the unions initiated these actions. The circuit court ordered enforcement. The Court of Appeals affirmed. 42 Mich.App. 51, 201 N.W.2d 650 (1972).

We hold the act to be unconstitutional. The arbitrator/chairman of the panel is entrusted with the authority to decide major questions of public policy concerning the conditions of public employment, the levels and standards of public services and the allocation of public revenues. Those questions are legislative and political, not judicial or quasi-judicial. The act is structured to insulate the arbitrator/chairman's decision from review in the political process. It is not intended that he be, nor is he in fact, accountable within the political process for his decision. This is not consonant with the constitutional exercise of political power in a representative democracy.

We give this ruling prospective effect. Orders of arbitration panels heretofore entered will be enforced.


Because we give our ruling on the constitutionality of the act prospective effect only, we consider the city's other challenges to the validity of the orders. We find that the arbitration panels proceeded in accordance with the provisions of the act. Their orders, accordingly, will be enforced.

The absence of the city's delegates from the arbitration panels did not deprive the panels of subject matter jurisdiction.

The act provides: 'the employees Or employer may initiate binding arbitration proceeding.' 2 (Emphasis supplied.) 'Upon their (the city's and the union's delegates') Failure to agree upon and appoint the arbitrator * * * Either of them may request the chairman of the state labor mediation board to appoint the arbitrator'. 3 (Emphasis supplied.)

It is apparent that once either party requests arbitration, 'the other party's participation is compulsory, and arbitration necessarily follows.' 4

The city would require a union confronted with a recalcitrant public employer to seek a court order to compel the employer to submit to arbitration. This additional step would encourage dilatory practices and would be at odds with the act's policy of providing 'an alternate, expeditious, effective and binding procedure for the resolution of disputes'. 5 Also without merit is the city's challenge to the fire fighter order on the ground that the panel failed to issue its order within the 30-day period prescribed in the act. 6


The city contends that compulsory arbitration unconstitutionally divests home-rule cities of their powers under the Constitution. 7

The powers reserved in the Constitution to home-rule cities are expressly 'subject to the constitution and law'. Const.1963, art. 7, § 22 (see fn. 7).

The power of the Legislature to provide for the resolution of disputes in public employment is explicitly stated in § 48 of article 4 of the Constitution: 'The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service'. The city contends that under this provision the Legislature may 'regulate' but not 'control' municipal labor relations. The proffered distinction between 'regulation' and 'control' eludes us.

This Court recently held 8 that the home-rule powers 9 of the Common Council of the City of Detroit to adopt a residency requirement and a retirement plan are subject to the City's obligations as a public employer under the public employment relations act 10 and that both residency and retirement benefits are mandatory subjects of collective bargaining under the PERA. Referring to § 48 of article 4, we said: 'PERA is such a law ('for the resolution of disputes concerning public employees') and we as a Court are required to follow the constitutional intent of the Legislature'. Detroit Police Officers Association v. Detroit, 391 Mich. 44, 59, 214 N.W.2d 803, 810 (1974).

Relying on § 48 of article 4, we previously had rejected claims of the Regents of the University of Michigan that the PERA infringes upon the constitutional autonomy of the Regents. 11 Regents of the University of Michigan v. Employment Relations Commission, 389 Mich. 96, 204 N.W.2d 218 (1973). Still earlier, this Court held that the 'authority and duty' of the Wayne County Civil Service Commission under an act of the Legislature 12 'was diminished Pro tanto, by the' enactment of the PERA. Wayne County Civil Service Commission v. Board of Supervisors, 384 Mich. 363, 374, 184 N.W.2d 201 (1971).

The constitutional and statutory powers of a home-rule city to establish the conditions of public employment are subject to the power of the Legislature. The Legislature may properly provide for the resolution of disputes concerning employees of home-rule cities--as well as other public employees, except those in the state classified civil service--and may impose the resolution on both the public employer and the public employees.

The city additionally contends that the challenged act 'indirectly, but undeniably, surrenders the power to tax' in violation of the following constitutional prohibition: 'The power of taxation shall never be surrendered, suspended or contracted away'. Const.1963, art. 9, § 2. The city premises that wage and benefit increases for policemen and firemen can only be paid by the imposition of new taxes. 'Accordingly, the power to grant such pay increases includes the power to increase taxes.'

The orders of the arbitration panels do not in terms require an increase in taxes. Assuming the predicate of the city's argument, that existing revenues are insufficient to fund the cost of the increases in compensation and benefits awarded, the orders can be read as contemplating either an increase in taxes or a decrease in other municipal expenditures. Be that as it may, implicit in the power conferred by the Constitution on the Legislature to 'resolve' disputes concerning public employees is legislative power to require, if need be, a public employer to provide the necessary funds subject to constitutional limitations, E.g., the 15-mill limitation. 13 The constitutional prohibition against surrender of the power of taxation has not been violated.


The constitutional principle restricting the delegation of legislative power is invoked against this delegation of the power to resolve a labor dispute to persons other than governmental officials or tribunals. 14

Also implicit in the legislative power to enact laws providing for the 'resolution of disputes concerning public employees' is the power to delegate the resolving authority; clearly it was not intended that the Legislature itself decide each and every dispute. 15

The nondelegation doctrine, Professor Davis has written, is 'almost a complete failure'. 16 In his treatise, State Administrative Law, Professor Cooper demonstrated that it is not possible to devise a 'true test' for determining whether a particular delegation will be sustained, one articulating and enumerating all the factors that motivate the judicial response. 17 In the final analysis, courts, 'weighing the advantage of (the) delegation against the hazards involved', 18 make a pragmatic analysis of whether the consequences of the delegation are so undesirable as to require judicial intervention.

Another writer pertinently notes that while 'the old delegation doctrine' has been rightly repudiated as an 'absolutist legal theory', the 'doctrine has an underlying core of validity in that it requires that those who have been selected by a given process and from...

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