Detroit Police Officers Ass'n v. City of Detroit

• Decision Date: 14 February 1974
• Docket Number: No. 13,13
• Citation: 214 N.W.2d 803,391 Mich. 44,85 L.R.R.M. (BNA) 2536
• Parties: DETROIT POLICE OFFICERS ASSOCIATION, Appellant, v. CITY OF DETROIT, a municipal corporation, Appellee, and Michigan Employment Relations Commission, Appellee and Cross-Appellant. CITY OF DETROIT, a municipal corporation, Appellant, v. DETROIT POLICE OFFICERS ASSOCIATION, Appellee, and Michigan Employment Relations Commission, Appellee and Cross-Appellant. 391 Mich. 44, 214 N.W.2d 803, 85 L.R.R.M. (BNA) 2536, 73 Lab.Cas. P 53,254
• Court: Michigan Supreme Court

Page 803

214 N.W.2d 803

DETROIT POLICE OFFICERS ASSOCIATION, Appellant, v. CITY OF DETROIT, a municipal corporation, Appellee, and Michigan Employment Relations Commission, Appellee and Cross-Appellant.

CITY OF DETROIT, a municipal corporation, Appellant, v. DETROIT POLICE OFFICERS ASSOCIATION, Appellee, and Michigan Employment Relations Commission, Appellee and Cross-Appellant.

No. 13.

391 Mich. 44, 214 N.W.2d 803, 85 L.R.R.M. (BNA) 2536,

73 Lab.Cas. P 53,254

Supreme Court of Michigan.

Feb. 14, 1974.

Winston L. Livingston, J. Douglas Korney, Detroit, for plaintiff-appellant Detroit Police Officers Ass'n.

Michael M. Glusac, Corp. Counsel, Nick Sacorafas, Ronald Zajac, Michael A. Hurtitz, Assts. Corp. Counsel, Detroit, for defendant-appellant, City of Detroit.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Asst. Atty. Gen., Detroit, for appellee and cross appellant Mich. Employment Relations Commission.

John S. Williamson, Jr., Goldberg, Previant & Uelmen, Milwaukee, Wis., for Police Officers Ass'n of Mich. (POAM) and the Mich. Conference of Teamsters.

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, P.C., by Theodore Sachs, Detroit, for Detroit Fire Fighters Ass'n.

Before the Entire Bench.

SWAINSON, Justice.

In 1965, the Legislature passed 1965 P.A. 379 ¹ which amended the Public Employment Relations Act (PERA) to allow public employees ² to select a collective bargaining representative and to enter into collective bargaining negotiations with their public employer. Pursuant to the newly amended PERA the Detroit Police Officers Association (DPOA) gained recognition as the exclusive collective bargaining agent for a unit of Detroit patrolmen and policewomen in January of 1966. Shortly thereafter, extensive collective bargaining negotiations proceeded between the City of Detroit (City) and the DPOA.

The collective bargaining negotiations continued until 1968 without resolving several areas of disagreement. The DPOA in July of 1968 filed an unfair labor practices charge ³ with the Labor Mediation Board, later redesignated the Michigan Employment Relations Commission, (MERC) alleging that the City had refused to bargain in good faith on key issues. A hearing was held and MERC issued a Decision and Order on March 18, 1971 addressing the issues raised by the DPOA. City of Detroit, Police Department, 6 MERC Lab. Op. 237 (1971). The conclusions of MERC on the issues relevant to today's appeal can be summarized as follows:

1. The adoption of the residency ordinance did not remove the subject of a residency requirement for police officers from the arena of collective bargaining. However, the City did not commit an unfair labor practice by enacting the residency ordinance. A valid impasse was reached when the Common Council rejected the agreement reached between the DPOA and the City's bargaining team. Thereafter, the City was free to take unilateral action.

2. The City is not required to bargain over recruiting requirements for patrolmen. The duty to bargain extends only to those 'terms and conditions of employment' that affect employees after they have commenced their employment relationship.

3. The City erroneously refused to bargain on changes in the police retirement plan when it initiated and conducted a voter referendum to amend the City Charter provisions controlling the police retirement plan. MERC ordered, on this issue, 'that the City of Detroit shall not require as a condition to any agreement reached regarding retirement provisions for police officers that (such agreement) be approved by a vote of the electorate.'

The City appealed that portion of MERC's decision dealing with the residency requirement and pension provisions to the Court of Appeals. Detroit Police Officers Association v. Detroit, 41 Mich.App. 723, 200 N.W.2d 722 (1972). The Court of Appeals reversed MERC on the residency issue interpreting this Court's decision in Detroit Police Officers Association v. Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971), to hold that because the City could constitutionally impose the residency ordinance it was no longer obligated to bargain with regard to this subject. On the retirement issue, the Court of Appeals agreed with MERC that the duty to bargain under the provisions of PERA concerning retirement plan changes prevailed over any contrary provision in the City Charter.

After the decision of the Court of Appeals was issued, both the DPOA and the City--sought leave to appeal to this Court. Leave was granted, 388 Mich. 807 (1972). Phrased in the language of labor law, the parties seek basically to have two questions answered.

1. Does the City of Detroit have the duty under PERA to bargain in good faith with the DPOA regarding residency requirements for police officers? If so, did the City violate its duty to bargain in good faith when it enacted the residency ordinance?

2. Does the City have a duty under PERA to bargain in good faith with the DPOA on the subject of police retirement plan changes where retirement provisions are a part of the City Charter and amendable only by a popular vote of the electorate?

Before turning to consider the specific issues presented, we find it useful to examine in general terms the meaning of the duty to bargain under PERA and especially § 15 (M.C.L.A. § 423.215; M.S.A. § 17.455(15)) thereof.

The legislative paramenters of the duty to bargain under PERA are found in § 15, which reads:

'A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.'

Section 15 of PERA undoubtedly was patterned after § 8(d) of the National Labor Relations Act (NLRA). ⁴ Both statutes use almost identical language in describing the duty to bargain. The decision by the Michigan Legislature to adopt the language of section 8(d) of the NLRA is significant. Section 8(d) has been a part of the NLRA since the Taft-Hartley amendments of 1947. ⁵ The terms of section 8(d) have been litigated in numerous cases before the National Labor Relations Board (NLRB) and the Federal courts. Although we cannot state with certainty, it is probably safe to assume that the Michigan Legislature intentionally adopted § 15 PERA in the form that it did with the expectation that MERC and the Michigan courts would rely on the legal precedents developed under NLRA, § 8(d) to the extent that they apply to public sector bargaining. Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich.L.Rev. 885, 895 (1973).

The primary obligation placed upon the parties in a collective bargaining setting is to meet and confer in good faith. The exact meaning of the duty to bargain in good faith has not been rigidly defined in the case law. Rather, the courts look to the overall conduct of a party to determine if it has actively engaged in the bargaining process with an open mind and a sincere desire to reach an agreement. National Labor Relations Board v. Montgomery Ward & Co., 133 F.2d 676, 686, 146 A.L.R. 1045 (CA 9, 1943); National Labor Relations Board v. General Electric Co., 418 F.2d 736, 756 (CA 2, 1949), cert. den. 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970); Morris, Ed., The Developing Labor Law, ch. 11, 1971). The law does not mandate that the parties ultimately reach agreement, nor does it dictate the substance of the terms on which the parties must bargain. In essence the requirements of good faith bargaining is simply that the parties manifest such an attitude and conduct that will be conducive to reaching an agreement. Edwards, Supra, 894.

The duty to bargain in good faith under § 15 PERA and 8(d) NLRA extends to those subjects found within the scope of the phrase '* * * wages, hours, and other terms and conditions of employment.' In the prevailing language used to interpret the NLRA and adopted by MERC in interpreting § 15 PERA in this case, the subjects included within that phrase are referred to as 'mandatory subjects' of bargaining. Once a specific subject has been classified as a mandatory subject of bargaining, ⁶ the parties are required to bargain concerning the subject if it has been proposed by either party, and neither party may take unilateral action on the subject absent an impasse in the negotiations. See generally, National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, 6 A.L.R.3d 1130 (1964); City of Detroit Police Department, 6 MERC Lab. Op. 237 (1971).

In the private sector, such subjects as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, nostrike clauses, profit sharing plans, rental of company houses, grievance procedures, sick leave, workrules, seniority and promotion, compulsory retirement age, and mangement rights clauses, are examples of mandatory subjects of bargaining. Morris, Ed., Supra, ch. 15. MERC has adopted a similar posture toward mandatory subjects of bargaining. In the proceedings below, MERC found both the residency requirement and the pension provisions fall under the 'mandatory' classification. One of our tasks in this opinion will be to review MERC's...