Detroit Fire Fighters Ass'n, Local 344, IAFF v. City of Detroit

• Decision Date: 02 April 1980
• Docket Number: Docket No. 43886
• Citation: 294 N.W.2d 842,96 Mich.App. 543,107 L.R.R.M. (BNA) 2624
• Parties: DETROIT FIRE FIGHTERS ASSOCIATION, LOCAL 344, IAFF, Plaintiff-Appellee, v. CITY OF DETROIT (FIRE DEPARTMENT), Defendant-Appellant. 96 Mich.App. 543, 294 N.W.2d 842, 107 L.R.R.M. (BNA) 2624
• Court: Court of Appeal of Michigan — District of US

Page 842

294 N.W.2d 842

DETROIT FIRE FIGHTERS ASSOCIATION, LOCAL 344, IAFF Plaintiff-Appellee, v. CITY OF DETROIT (FIRE DEPARTMENT), Defendant-Appellant.

Docket No. 43886.

96 Mich.App. 543, 294 N.W.2d 842, 107 L.R.R.M. (BNA) 2624

Court of Appeals of Michigan.

April 2, 1980.

Released for Publication July 11, 1980.

[96 MICHAPP 544] Kenneth King, Detroit, for defendant-appellant.

Theodore Sachs, Detroit, for Detroit Fire Fighters, Local 344 IAFF.

Jon M. DeHorn, Asst. Atty. Gen., for Michigan Employment Relations Commission.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

CAVANAGH, Judge.

Defendant City of Detroit appeals from a ruling by the Michigan Employment Relations Commission (MERC) which affirmed the decision of an administrative law judge who found that defendant had violated section 10 of the Public Employment Relations Act (PERA), M.C.L. § 423.210; M.S.A. § 17.455(10), by bargaining to impasse regarding the exclusion of certain positions from [96 MICHAPP 545] the various classifications represented by the plaintiff union.

During negotiations for a new collective bargaining agreement, the City proposed to alter the recognition clause to delete the positions of Fire Chief, Assistant Fire Chief and Fire Marshal from the bargaining unit. When negotiations failed to produce any new agreement the City submitted the above noted proposal, among others, to binding arbitration pursuant to 1969 P.A. 312, as amended, M.C.L. § 423.231 et seq.; M.S.A. § 17.455(31) et seq. This submission resulted in the parties' agreement that the issue had been bargained to impasse. Subsequently, the plaintiff union filed an unfair labor practice charge with MERC, and events progressed as detailed above.

Section 15 of PERA requires the representatives of the employer and employee to bargain collectively "with respect to wages, hours, and other terms and conditions of employment". M.C.L. § 423.215; M.S.A. § 17.455(15). Subjects included within that phrase are mandatory subjects of bargaining. Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 54, 214 N.W.2d 803 (1974).

Permissive subjects of collective bargaining are those which fall outside the scope of "wages, hours, and other terms and conditions of employment", and may be negotiated only if both parties agree. Pontiac Police Officers Ass'n v. Pontiac, 397 Mich. 674, 679, 246 N.W.2d 831 (1976).

We may look for guidance to Federal decisions that have construed provisions of the National Labor Relations Act which are analogous to provisions of PERA, Rockwell v. Crestwood School District Board of Education, 393 Mich. 616, 636, 227 N.W.2d 736 (1975). In so doing, it is evident that the redefinition of a bargaining unit would not satisfy [96 MICHAPP 546] any of the accepted tests for being considered a mandatory subject of collective bargaining. Detroit Police Officers Ass'n v. Detroit, 61 Mich.App. 487, 492, 233 N.W.2d 49 (1975), lv. den. 395 Mich. 756 (1975). The redefinition or constitution of a bargaining unit is, therefore, a permissive subject of collective bargaining. Accordingly, the defendant City's attempt "to restrict bargaining to only certain members of an appropriate (bargaining) unit * * * is an unfair labor practice". Hess Oil & Chemical Corp. v. N. L. R. B., 415 F.2d 440, 444 (CA 5, 1969), cert. den., 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97 (1970). And, further in accord with the decision in Hess Oil, supra, p. 445, we find that MERC was the proper entity to decide this issue in the first instance. See In the Matter of Metropolitan Council 23, AFSCME, AFL-CIO, 89 Mich.App. 564, 567-568, 280 N.W.2d 600 (1979), and Local No. 214, Teamsters v. Detroit, 91 Mich.App. 273, 276-277, 283 N.W.2d 722 (1979).

The conclusion reached in...