Demings v. City of Ecorse

Decision Date19 October 1983
Docket NumberDocket No. 60492
Citation127 Mich.App. 608,339 N.W.2d 498
PartiesAlvin DEMINGS, Plaintiff-Appellee, v. CITY OF ECORSE and City of Ecorse Police and Fire Commission, Defendants, and Police Officers Association of Michigan, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Hurwitz & Karp, P.C. by Martin Hirschman, Dearborn Heights, for plaintiff-appellee.

Hiller, Larky & Hoekenga by Daniel J. Hoekenga and Steven J. Amberg, Southfield, for Police Officers Ass'n of Michigan.

Before BRONSON, P.J., and MacKENZIE and SANBORN, * JJ.

BRONSON, Presiding Judge.

The Police Officers Association of Michigan (POAM) appeals from a decision finding that it acted in bad faith and an order vacating an arbitration award, restoring plaintiff to his previous position and directing the parties to conduct an arbitration hearing in which plaintiff is allowed to participate.

On May 5, 1980, the Ecorse Police and Fire Commission promoted plaintiff, then a patrolman, to the rank of detective. On May 7, 1980, Corporal Frank Chirillo sought the assistance of POAM in filing a grievance concerning plaintiff's promotion. POAM was the exclusive collective bargaining agent for both plaintiff and Corporal Chirillo. Its collective bargaining agreement with the city provided the following grievance procedure:

"7.1: Whenever a police officer has a complaint or grievance, he shall take it up first with the Union.

"Step 1:

"7.2: The Union may file the grievance with the Chief of Police to attempt to settle the dispute. The Chief shall answer the grievance within ten (10) days.

"Step 2:

"7.3: If the answer is unsatisfactory to the Union, the Union may appeal the dispute to the Police and Fire Commission to be heard at the next regular meeting. The Police and Fire Commission shall answer the grievance within thirty-five (35) days from when it is filed.

"Step 3:

"7.4: In the event the Union is not satisfied with the disposition of the dispute, the Union may file the dispute with the American Arbitration Association or the Michigan Employment Relations Commission (MERC) for final and binding arbitration in accordance with their rules.

"7.5: The City and Union shall share the cost of arbitration."

POAM pursued Corporal Chirillo's grievance to arbitration. It contended that plaintiff's promotion had violated the collective bargaining agreement due to the city's failure to post and fill the job opening according to the provisions of the agreement. The city contended that the position filled by plaintiff was not covered by the vacancy or job assignment provisions of the agreement.

On February 12, 1981, an arbitration hearing was held. Plaintiff attempted to appear at the hearing with his attorney. POAM's representative asked that plaintiff be excluded from the hearing unless the city wished to call him as a witness. The arbitrator granted POAM's request. At the conclusion of the hearing, POAM, the city and the arbitrator agreed that plaintiff should be requested to submit his arguments in writing to the arbitrator. On February 17, 1981, plaintiff's attorney submitted a letter to the arbitrator. He reiterated plaintiff's position, stated before the hearing, that the arbitrator was without jurisdiction to make an award directly affecting plaintiff. He argued that, even if the arbitrator had possessed jurisdiction to decide plaintiff's claim to stay in his job, plaintiff's right to due process had required his participation in the arbitration hearing. He also argued that a favorable disposition of Corporal Chirillo's grievance did not require plaintiff's demotion.

On March 13, 1981, the arbitrator ruled in favor of Corporal Chirillo. He specifically noted that POAM had not asked that plaintiff be removed from his position, but only that a detective position be posted and filled according to the terms of the collective bargaining agreement. The city had contended that the arbitrator was without power to affect plaintiff's position. He ruled that the city violated the collective bargaining agreement by promoting plaintiff. His award stated:

"3. The Employer shall reconsider the promotion of Officer Demings by offering the Detective position filled by Demings to the most senior qualified member of the bargaining unit, if other than Demings. In so doing the Employer shall first offer the position to the members of the bargaining unit and then fill the position with the most senior qualified employee in the bargaining unit seeking the position."

On June 1, 1981, the city rescinded plaintiff's promotion and resolved to keep the position to which he had been promoted vacant.

On June 26, 1981, plaintiff filed an action in circuit court seeking a preliminary injunction restoring him to his previous position, monetary damages and other relief. Named as defendants were the city, its police and fire commission and POAM. Plaintiff's claims can be characterized as follows:

1. The city violated the collective bargaining agreement by demoting him;

2. POAM arbitrarily refused to file a grievance on his behalf concerning the alleged violation;

3. Certain of the allegations made in Corporal Chirillo's grievance were equally applicable to other promotions, yet no grievances were filed in those cases;

4. His demotion resulted from his wrongful exclusion from the February 12, 1981, arbitration hearing;

5. The city and POAM discriminated against him on the basis of race.

Claims 2, 3, and 4 were alleged to be breaches of POAM's duty of fair representation.

At a hearing on plaintiff's request for a preliminary injunction, plaintiff asked the court to make a preliminary decision based only on the question of the union's duty of fair representation. The trial court ruled that POAM breached its duty to represent plaintiff fairly by refusing to allow him to participate in the arbitration of Corporal Chirillo's grievance. The court entered an order setting aside the arbitrator's award, directing that a new arbitration proceeding be conducted with plaintiff's participation and restoring plaintiff to the position of detective retroactive to the date of his demotion. Later, the court stayed that part of the order directing that a new arbitration hearing be conducted and entered the provisions of the preliminary injunction as a final order. At that time, it denied defendant POAM's motions for summary and accelerated judgment. POAM has appealed; the city has not.

POAM claims that Michigan should not recognize, as a cause of action, a claim that a public employee union breached its duty of fair representation. Such a cause of action may be asserted in federal and state courts for private sector employees covered by the provisions of the federal Labor Management Relations Act (LMRA) under Sec. 301 of that act, 29 U.S.C. Sec. 185. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Plaintiff, an employee of a political subdivision of a state, is not covered by the federal labor laws. LMRA, Sec. 2(2), 29 U.S.C. Sec. 152(2). Plaintiff, the city and POAM are subject to Michigan's analogous public employment relations act (PERA), M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq.

POAM argues that the absence, in PERA, of a provision analogous to Sec. 301 of the LMRA indicates that no cause of action for breach of the duty of fair representation exists for the state's public employees. The inclusion of the jurisdictional grant in Sec. 301 confirmed the congressional intent that other provisions of the LMRA for redressing unfair labor practices did not constitute an exclusive statement of the rights created by that act and did not eliminate or militate against the right to seek relief in federal courts for violations of a collective bargaining agreement. Wilson & Co. v. United Packinghouse Workers of America, 83 F.Supp. 162 (SD NY, 1949). Section 301 was intended to eliminate obstacles to bringing a claim of a breach of a collective bargaining agreement in federal court, International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952). The jurisdictional grant does not give federal courts any different or additional powers than a state court would have had if the action had been brought there. Mercury Oil Refining Co. v. Oil Workers International Union, CIO, 187 F.2d 980 (CA10, 1951).

The Michigan Supreme Court has recognized that a right of action exists for breach of the duty of fair representation. Lowe v. Hotel & Restaurant Employees Union, Local 705, 389 Mich. 123, 145, 205 N.W.2d 167 (1973). Our Supreme Court stated that the duty arose out of the statutory power of exclusive representation granted unions in Sec. 9 of the National Labor Relations Act (NLRA), 29 USC 159. Bebensee v. Ross Pierce Electric, Inc., 400 Mich. 233, 244, 253 N.W.2d 633 (1977). The Court held that a union's power to bargain exclusively for the employees of a bargaining unit, and to make binding agreements governing the individual member's employment, implicitly imposed on the union the duty of fairly representing all members of the unit. Bebensee, supra, pp. 244-245, 253 N.W.2d 633. See also Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953).

In Michigan, a public employee's union is granted the same power of exclusive representation by Sec. 11 of PERA, M.C.L. Sec. 423.211; M.S.A. Sec. 17.455(11), as is granted unions in the private sector by Sec. 9 of the NLRA. As in the private sector, the power of exclusive representation implies the duty to represent fairly. See Saginario v. Attorney General, 87 N.J. 480, 435 A.2d 1134 (1981) (Clifford, J., concurring). The statutory grant of the power of exclusive representation might infringe on the due process rights of a member of a bargaining unit absent the implication of a duty to ...

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6 cases
  • Demings v. City of Ecorse
    • United States
    • Michigan Supreme Court
    • November 7, 1985
  • Goolsby v. City of Detroit
    • United States
    • Michigan Supreme Court
    • December 10, 1984
    ... ... See Demings v. City of Ecorse, 127 Mich.App. 608, 615-617, 339 N.W.2d 498 (1983) ... 6 In this state, a person claiming that a labor organization has breached ... ...
  • Harris v. City of Detroit
    • United States
    • Court of Appeal of Michigan — District of US
    • July 8, 1987
    ... ... Demings v. Ecorse, 127 Mich.App. 608, 622-623, 339 N.W.2d 498 (1983), mod. on other grounds 423 Mich. 49, 377 N.W.2d 275 (1985); McMath v. Ford Motor Co., ... ...
  • O'Keefe v. Department of Social Services
    • United States
    • Court of Appeal of Michigan — District of US
    • October 15, 1987
    ... ... summary disposition and denying reconsideration based on the Supreme Court decision in Demings v. City of Ecorse. 1 The motion was denied on January 14, 1986. Plaintiff Billmieir has not ... ...
  • Request a trial to view additional results

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