Demings v. City of Ecorse

Citation377 N.W.2d 275,423 Mich. 49
Decision Date07 November 1985
Docket NumberNo. 72407,72407
Parties, 120 L.R.R.M. (BNA) 3246 Alvin DEMINGS, Plaintiff-Appellee, v. CITY OF ECORSE and City of Ecorse Police and Fire Commission, Defendants, and Police Officers Association of Michigan, Defendant-Appellant.
CourtSupreme Court of Michigan

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

Law Offices of Howard & Guido, by Barry L. Howard, Southfield, for defendant-appellant.

Hiller, Larky & Hoekenga by Daniel J. Hoekenga, Southfield, for amicus curiae.

LEVIN, Justice.

The issue is whether the Michigan Employment Relations Commission has exclusive jurisdiction of fair representation actions brought under the public employment relations act. We hold that the circuit court has concurrent jurisdiction with the MERC.

The PERA was modeled on the National Labor Relations Act. Under the NLRA, courts have concurrent jurisdiction with the National Labor Relations Board of fair representation actions. There are a number of reasons for concurrent jurisdiction. The right of fair representation was developed judicially by the United States Supreme Court. The right concerns substantive matters not within the expertise of the NLRB or the MERC and individual rights that might be better protected by the courts. The right is intertwined in the judicial enforcement of collective bargaining agreements.

We are not persuaded that an adequate reason for departing from the federal model in fair representation cases has been advanced. We hold that the circuit court has concurrent jurisdiction with the MERC and, thus, that the MERC does not have exclusive jurisdiction, and affirm the judgment of the Court of Appeals.

The Court of Appeals, 127 Mich.App. 608, 339 N.W.2d 498, affirmed the decision of the circuit court vacating the arbitration award, that the plaintiff, Alvin Demings, challenged in this action. That arbitration award may not properly be vacated unless the defendant Police Officers Association of Michigan breached its duty of fair representation. Because the fair representation issue has not been tried, and the Court of Appeals addressed the questions presented on appeal in the context only of its review of the injunctive relief granted Demings and the denial of the POAM's motion for

summary judgment, we remand the cause to the circuit court to determine whether the POAM's conduct violated the standards applicable in fair representation cases. See Goolsby v. Detroit, 419 Mich. 651, 682, 358 N.W.2d 856 (1984).


The Ecorse Police and Fire Commission promoted Demings to the position of detective on May 5, 1980. At the time, Demings was the patrolman with the highest seniority. Corporal Frank Chirillo, however, had more departmental seniority, and he filed a grievance, claiming that the promotion of Demings violated the terms of the collective bargaining agreement between Ecorse and the POAM. The POAM was the exclusive bargaining agent for both Demings and Chirillo.

The POAM pursued Chirillo's grievance to arbitration, contending that Demings' promotion violated the collective bargaining agreement because of Ecorse's failure to post and fill the job opening as required in the agreement. In February, 1981, Chirillo's grievance was submitted to arbitration. Demings attempted to appear at the hearing with his attorney, but the POAM succeeded in having him excluded. Demings was allowed to submit his arguments in writing. In March, 1981, the arbitrator ruled in Chirillo's favor. The award stated that "[t]he 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 June, 1981, Ecorse rescinded plaintiff's promotion and resolved to keep the detective position vacant.

Following his demotion, Demings requested that the POAM employ the grievance arbitration procedure in his behalf, but the POAM refused. The contract allows only the POAM to invoke the grievance arbitration procedure. Demings filed an action in circuit court, alleging that the POAM had breached its duty of fair representation by having him excluded from the Chirillo arbitration, by refusing to file his grievance, and by challenging his promotion, but not others in the same position. An injunction "to preserve the status quo by restraining [Ecorse] from demoting" him was sought. Demings also claimed that Ecorse violated the collective bargaining agreement by demoting him and that Ecorse and the POAM discriminated against him on the basis of race. The breach of contract and racial discrimination claims are not involved in this appeal. The POAM filed an answer to the motion for injunction and moved for "accelerated and/or summary judgment" claiming that the circuit court lacked jurisdiction.

The circuit court denied the POAM's motion for accelerated and summary judgment, issued a temporary injunction, subsequently entered as a final order, and set aside the arbitration award, finding that the exclusion of Demings was arbitrary and capricious and, therefore, a violation of due process. The order restored Demings to the position of detective, retroactive to the date of his demotion.

The Court of Appeals concluded that the MERC did not have exclusive jurisdiction and affirmed.


Goolsby v. Detroit, 419 Mich 660-661, n 5, 358 N.W.2d 856, n 5, summarizes the relationship between the NLRA and the PERA in general, and provisions of the two acts governing the right of fair representation in particular:

"The rights and responsibilities imposed on labor organizations representing private sector employees by statutes like the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., and the Railway Labor Act, 45 U.S.C. Sec. 151 et seq., and by the national labor policies which those statutes implement impliedly impose on labor organizations representing private sector employees a duty of fair representation.

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"Similarly, our labor mediation act, M.C.L. Sec. 423.1 et seq., M.S.A. Sec. 17.454(1) et seq., and public employment relations act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) It is not suggested that the Legislature has, in defining the origin and nature of the substantive right of fair representation, departed from the federal model. The PERA provisions that give rise to the right of fair representation are replicas of the federal provisions. The nature of the right of fair representation, as developed by the Michigan and federal courts, also appears to be substantially the same. It does not appear that the Legislature intended to depart from the federal approach in respect to, and only in respect to, the jurisdiction of the courts in fair representation actions brought by public employees.

                et seq., are patterned after the NLRA.  Thus this court has stated that in construing our state labor statutes we look for guidance to 'the construction placed on the analogous provisions of the NLRA by the [National Labor Relations Board] and the Federal courts.'   Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 636;  227 NW2d 736 (1975)....   [423 Mich. 57] Consequently, since the rights and responsibilities imposed on labor organizations representing public sector employees by PERA ... are similar to those imposed on labor organizations representing private sector employees by the NLRA, it must be concluded that PERA impliedly imposes on labor organizations representing public sector employees a duty of fair representation which is similar to the duty imposed by the NLRA...."

The general rule is that the NLRB has exclusive jurisdiction of unfair labor practice charges. 1 The federal courts and the states must defer to the administrative agency. This "preemption doctrine was created to permit administrative agencies to develop rules within their area of expertise which would be enforced uniformly." 2

Nevertheless, exceptions to the rule of exclusive agency jurisdiction of unfair labor practices have developed. In Vaca v. Sipes, 386 U.S. 171, 188, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), the United States Supreme Court held that "the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the ... pre-emption doctrine inapplicable." The courts, both state and federal, have concurrent jurisdiction of fair representation actions.


The plaintiff in Vaca, Benjamin Owens, had been refused reemployment after a long sick leave. When the union decided not to take Owen's grievance to arbitration, he filed an action in a Missouri court, alleging that he had been discharged from his employment in violation of the collective bargaining agreement and that the union had breached its duty of fair representation. Included in the union's answer was the defense that the Missouri courts lacked jurisdiction because Owens was essentially claiming that the union had engaged in unfair labor practices within the exclusive jurisdiction of the NLRB.

The United States Supreme Court elaborated at least four reasons for rejecting exclusive agency jurisdiction and distinguishing the right of fair representation from other unfair labor practices. First, "[t]he doctrine was judicially developed" and "the board adopted and applied the doctrine as it had been developed by the federal courts." 3 Second, fair representation actions involve review of substantive areas not within the field of expertise of the board. 4 Third, the courts are the best The Court's reliance on the judicial origin of the right of fair representation should not be misunderstood. The Court was not saying that the right is purely a common-law right. The right is "the product of a federal common law of statutory origin." 7 How this hybrid is...

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