Detroit Police Officers Ass'n v. City of Detroit, Police Dept., Docket No. 20926

CourtCourt of Appeal of Michigan (US)
Writing for the CourtBRONSON
Citation61 Mich.App. 487,233 N.W.2d 49
Parties, 90 L.R.R.M. (BNA) 2912, 77 Lab.Cas. P 53,721 DETROIT POLICE OFFICERS ASSOCIATION, Plaintiff-Appellee, v. CITY OF DETROIT, POLICE DEPARTMENT, Defendant-Appellant, Cross-Appellee, and Michigan Employment Relations Commission, Cross-Appellant
Decision Date30 May 1975
Docket NumberNo. 1,Docket No. 20926

Page 49

233 N.W.2d 49
61 Mich.App. 487, 90 L.R.R.M. (BNA) 2912,
77 Lab.Cas. P 53,721
DETROIT POLICE OFFICERS ASSOCIATION, Plaintiff-Appellee,
v.
CITY OF DETROIT, POLICE DEPARTMENT, Defendant-Appellant,
Cross-Appellee,
and
Michigan Employment Relations Commission, Cross-Appellant.
Docket No. 20926.
Court of Appeals of Michigan, Division No. 1.
May 30, 1975.
Released for Publication Sept. 30, 1975.

Page 50

[61 Mich.App. 489] Elliott S. Hall, Corp. Counsel by Ronald Zajac, Asst. Corp. Counsel, Detroit, for City of Detroit, Police Dept.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis W. Edwards, Detroit, for Mich. Employment Relations Dept.

[61 Mich.App. 488] Gregory, Van Lopik & Higle by J. Douglas Korney, Detroit, for plaintiff-appellee.

[61 Mich.App. 489] Before R. B. BURNS, P.J., and BRONSON and CAVANAGH, JJ.

BRONSON, Judge.

This case is on appeal from the Michigan Employment Relations Commission (MERC). 1 Appellant City of Detroit (City) was found by MERC to have engaged in an unfair labor practice 2 in refusing to bargain collectively with appellee Detroit Police Officers Association (DPOA) regarding the standards and criteria used by the Police Commissioner 3 in determining promotions for members of the bargaining unit.

The City is a public employer and members of the DPOA are public employees as those terms are used in the Public Employment Relations Act (PERA), M.C.L.A. § 423.201 Et seq.; M.S.A. § 17.455(1) Et seq. The DPOA has since 1966 been recognized as the exclusive bargaining agent for the City's patrolmen and policewomen. M.C.L.A. § 423.211; M.S.A. § 17.455(11). Section 15 of PERA 4 requires a public employer to bargain collectively with its employees' representative 'with respect to wages, hours, and other terms and conditions of employment'. Subjects which fall within the scope of the [61 Mich.App. 490] quoted phrase are mandatory subjects of collective bargaining, and refusal to bargain about mandatory subjects constitutes an unfair labor practice under section 10(e) of PERA. 5 See Detroit Police Officers Association v. Detroit, 391 Mich. 44, 52--57, 214 N.W.2d 803 (1974).

MERC determined that the issue of the standards and criteria used in promoting unit members is a mandatory subject of bargaining. The City disputes that ruling, arguing in addition that even if a mandatory subject is involved, the DPOA is not the proper bargaining unit with which to discuss the question of promotional standards and criteria, because the DPOA does not represent those officers to whose ranks the DPOA members are promoted.

I.

In order to determine whether MERC was correct in concluding that the DPOA sought to bargain about a mandatory subject, we must construe the phrase 'terms and conditions of employment' as used in section 15 of PERA. We have been authorized to look to Federal precedent to assist us in that task, Detroit Police Officers Association v. Detroit, supra, at 53, 214 N.W.2d 803, and accordingly we turn to Federal case law construing the identical language in section 8(d) of the National Labor Relations Act 6 (NLRA).

That section 'does not immutably fix a list of subjects for mandatory bargaining', Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971); instead, courts must utilize a case-by-case [61 Mich.App. 491] approach in determining whether a given subject involves a 'term and condition of employment'. International Union, United Automobile Aerospace & Agricultural Implement Workers of America, UAW v. National Labor Relations Board, 152 U.S.App.D.C. 274, 470 F.2d 422, 424 (1972). In construing that phrase for purposes of PERA, we must keep in mind that because public employees in Michigan are forbidden to strike, 7 'section 15 of PERA must be even more expansively construed than its NLRA counterpart' in order to adequately protect public employees' rights. Van Buren Public School District v. Wayne Circuit Judge, 61 Mich.App. 6, 232 N.W.2d 278 (1975). We must also recognize that the classification of bargaining subjects as 'terms and conditions

Page 52

of employment' is a matter concerning which the agency created to deal with such issues--here MERC--has special competence. Allied Chemical Workers, supra, 404 U.S. at 182, 92 S.Ct. 383.

Before a subject can be considered a mandatory subject of collective bargaining, it must concern a 'term and condition of employment'. It is clear that promotional standards and criteria are literally 'terms and conditions of employment'. One of the conditions under which police officers work is the procedure established to mark the progress of their careers. This procedure affects the manner in which officers perform their duties in an important way. The extent to which promotion is possible and the performance required to obtain promotion will in large part determine how the job is done and thus constitutes one of the conditions of employment for DPOA members.

However, establishing that promotional criteria are a condition of employment is not enough to [61 Mich.App. 492] make that subject a mandatory one under section 15. It must also be important enough to justify resorting to 'the mediatory influence of negotiation'. Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 211, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Various 'tests' have been developed by the federal courts for determining whether a given subject is important enough to be considered a 'term and condition of employment'. The most popular is aptly stated in Westinghouse Electric Corp. v. National Labor Relations Board, 387 F.2d 542, 547 (C.A. 4, 1967): '* * * those subjects which have a material or significant...

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25 practice notes
  • Honulik v. Town of Greenwich, No. 18046.
    • United States
    • Supreme Court of Connecticut
    • February 24, 2009
    ...dissent cites is dicta, citing with approval a decision of the Court of Appeals of Michigan, Detroit Police Officers Assn. v. Detroit, 61 Mich.App. 487, 492-94, 233 N.W.2d 49 (1975). Moreover, as the court in Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 280 (Fla.......
  • Southfield Police Officers Ass'n v. City of Southfield, Docket No. 81974
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...822; Bay City Ed. Ass'n v. Bay City Public Schools, 430 Mich. 370, 376, 422 N.W.2d 504 (1988); Detroit Police Officers Ass'n v. Detroit, 61 Mich.App. 487, 490-491, 233 N.W.2d 49 (1975), lv. den. 395 Mich. 756 The Michigan courts have held, in varying contexts, that the duty to bargain exten......
  • Kalamazoo City Ed. Ass'n v. Kalamazoo Public Schools, AFL-CI
    • United States
    • Supreme Court of Michigan
    • July 24, 1979
    ...v. Department of Corrections, 61 Mich.App. 328, 329, fn 2, 232 N.W.2d 699 (1975); Detroit Police Officers Ass'n v. City of Detroit, 61 Mich.App. 487, 489, fn 1, 233 N.W.2d 49 10 The finding of the Court as to review is arguably dictum in Reeths-Puffer because the original petition in the Co......
  • Baker v. City of Detroit, Civ. No. 5-71937
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 1, 1979
    ...bargain about the affirmative action plan as part of the criteria for promotions. See Detroit Police Officers Assoc. v. City of Detroit, 61 Mich.App. 487, 233 N.W.2d 49 (1975). Whether or not the City bargained in good faith concerning affirmative action is of no relevance to these proceedi......
  • Request a trial to view additional results
25 cases
  • Honulik v. Town of Greenwich, No. 18046.
    • United States
    • Supreme Court of Connecticut
    • February 24, 2009
    ...dissent cites is dicta, citing with approval a decision of the Court of Appeals of Michigan, Detroit Police Officers Assn. v. Detroit, 61 Mich.App. 487, 492-94, 233 N.W.2d 49 (1975). Moreover, as the court in Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 280 (Fla.......
  • Southfield Police Officers Ass'n v. City of Southfield, Docket No. 81974
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...822; Bay City Ed. Ass'n v. Bay City Public Schools, 430 Mich. 370, 376, 422 N.W.2d 504 (1988); Detroit Police Officers Ass'n v. Detroit, 61 Mich.App. 487, 490-491, 233 N.W.2d 49 (1975), lv. den. 395 Mich. 756 The Michigan courts have held, in varying contexts, that the duty to bargain exten......
  • Kalamazoo City Ed. Ass'n v. Kalamazoo Public Schools, AFL-CI
    • United States
    • Supreme Court of Michigan
    • July 24, 1979
    ...v. Department of Corrections, 61 Mich.App. 328, 329, fn 2, 232 N.W.2d 699 (1975); Detroit Police Officers Ass'n v. City of Detroit, 61 Mich.App. 487, 489, fn 1, 233 N.W.2d 49 10 The finding of the Court as to review is arguably dictum in Reeths-Puffer because the original petition in the Co......
  • Baker v. City of Detroit, Civ. No. 5-71937
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 1, 1979
    ...bargain about the affirmative action plan as part of the criteria for promotions. See Detroit Police Officers Assoc. v. City of Detroit, 61 Mich.App. 487, 233 N.W.2d 49 (1975). Whether or not the City bargained in good faith concerning affirmative action is of no relevance to these proceedi......
  • Request a trial to view additional results

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