Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger, Docket No. 55665

• Decision Date: 06 May 1983
• Docket Number: Docket No. 55665
• Parties: FRATERNAL ORDER OF POLICE, IONIA COUNTY LODGE NO. 157, Ionia County Sheriff's Division, and Roy Phillip Edson, Plaintiffs-Appellees Cross-Appellants, v. William BENSINGER and the Ionia County Board of Commissioners, Defendants-Appellants Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 73

333 N.W.2d 73

122 Mich.App. 437

FRATERNAL ORDER OF POLICE, IONIA COUNTY LODGE NO. 157, Ionia County Sheriff's Division, and Roy Phillip Edson Plaintiffs-Appellees Cross-Appellants, v. William BENSINGER and the Ionia County Board of Commissioners, Defendants-Appellants Cross-Appellees.

Docket No. 55665.

Court of Appeals of Michigan.

Submitted Jan. 6, 1982.

Decided Jan. 19, 1983.

Rehearing Denied March 3, 1983.

Released for Publication May 6, 1983.

Hankins & Kluck, P.C. by Michael R. Kluck and Kenneth P. Tableman, Okemos, for plaintiffs-appellees.

Varnum, Riddering, Wierengo & Christenson by Thomas J. Barnes and Joseph J. Vogan, Grand Rapids, for defendants-appellants.

Before R.B. BURNS, P.J., and WALSH and MacKENZIE, JJ.

MacKENZIE, Judge.

Plaintiff Roy Phillip Edson, an Ionia County deputy sheriff, was discharged on March 13, 1980. Pursuant to the collective bargaining agreement between plaintiff union and defendants, Edson commenced a grievance proceeding and the matter went to arbitration. In an opinion and award dated August 19, 1980, the arbitrator cited a provision of the collective bargaining agreement which required "just cause" for discipline or discharge of a deputy and concluded that the sheriff had failed to meet his burden of proving "just cause" for discharging Edson. The arbitrator ordered that Edson be reinstated with full back pay and benefits.

The sheriff declined to obey the arbitrator, and plaintiffs brought an action in circuit court to enforce the award. The circuit court held that defendants were not required to reinstate Edson with law enforcement powers but otherwise ordered that Edson be reinstated with full back pay and benefits. Defendants appeal by right, while plaintiffs cross appeal.

I

Plaintiffs argue that defendants waived the right to object to the authority of the arbitrator to render the award at issue here by failing to raise such an objection before the matter was submitted to arbitration. Plaintiffs rely on American Motorists Ins. Co. v. Llanes, 396 Mich. 113, 240 N.W.2d 203 (1976); Detroit Demolition Corp. v. Burroughs Corp., 45 Mich.App. 72, 205 N.W.2d 856 (1973), and Anno: Participation in Arbitration Proceedings as Waiver of Objections to Arbitrability, 33 A.L.R.3d 1242. However, those authorities are distinguishable here because they involved disputes as to whether a particular question was arbitrable under an arbitration agreement or the arbitration clause of a contract while here defendants argue that they had no power to agree to arbitrate the questions presented to the arbitrator. For an example of a similar distinction, see Arrow Overall Supply Co. v. Peloquin Enterprises, 414 Mich. 95, 323 N.W.2d 1 (1982). In that case, the Court held that defendant had not waived a defense based on the absence of a valid agreement to arbitrate by failing to raise the question during arbitration. Defendant had not participated in the arbitration proceedings and plaintiff had not compelled defendant to participate pursuant to GCR 1963, 769.2.

Here, in contrast to the Arrow Overall Supply Co. case, defendants participated in the arbitration proceedings. However, if, as defendants contend, they had no power to agree to arbitrate these questions, we cannot see how they had the power to waive the right to object to the arbitrability of these questions by participating in the proceedings. A provision of a collective bargaining agreement which embodies an illegal subject of bargaining is unenforceable. Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 54-55, fn. 6, 214 N.W.2d 803 (1974). We would be circumventing this rule if we were to find a waiver under the circumstances presented here.

II

M.C.L. Sec. 51.70; M.S.A. Sec. 5.863 provides in part:

"Each sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and may revoke those appointments at any time. Persons may also be deputed by a sheriff, by an instrument in writing, to do particular acts, who shall be known as special deputies and each sheriff may revoke those appointments at any time."

M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15) provides:

"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."

Defendants argue that the two statutes are in conflict and that M.C.L. Sec. 51.70; M.S.A. Sec. 5.863 ought to prevail as the more specific of the two. Alternatively, defendants argue that, while there is no positive repugnancy between the two statutes, each statute must be construed so as to give effect to both, and thus the sheriff's power to appoint deputies and revoke deputies' appointments is not a term or condition of employment about which the sheriff may collectively bargain. However, the Supreme Court has held on several occasions that the public employment relations act (PERA), M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq., is the dominant law regulating public employment relations and was intended by the Legislature to prevail over conflicting statutes. Rockwell v. Crestwood School Dist. Bd. of Education, 393 Mich. 616, 629-630, 227 N.W.2d 736 (1975); Central Michigan University Faculty Ass'n v. Central Michigan Univ., 404 Mich. 268, 279-281, 273 N.W.2d 21 (1978); Local 1383, International Ass'n of Firefighters, AFL-CIO v. City of Warren, 411 Mich. 642, 655-662, 311 N.W.2d 702 (1981). Defendants rely on Council No. 23, Local 1905, American Federation of State, County & Municipal Employees v. Recorder's Court Judges, 399 Mich. 1, 248 N.W.2d 220 (1976). That case is not binding precedent since no majority agreed on a ground for decision. See, for example, People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973), and the cases discussed therein. Moreover, in Local 1383, supra, 411 Mich. 655, fn. 4, 311 N.W.2d 702, the Court suggested that Council No. 23 reflects a special rule applicable only to the judiciary.

III

In Regents of the University of Michigan v. Employment Relations Comm., 389 Mich. 96, 108-109, 204 N.W.2d 218 (1973), the Court stated:

"We hold that interns, residents and post-doctoral fellows may be employees and have rights to organize under the provisions of PERA without infringing on the constitutional autonomy of the Board of Regents. However, as the Court of Appeals pointed out in Regents of the University of Michigan v. Labor Mediation Board, 18 Mich App 485, 490-491 (1969):

" 'While recognizing that the plaintiff is a public employer and the employees in question are public employees, we also recognize that this plaintiff, because of the provisions of Const. 1963, art. 8, Sec. 5, is a unique public employer. Its powers, duties and responsibilities are derived from the constitution as distinguished from other public employers whose authority is derivative from enactments of the legislature.'

"Because of the unique nature of the University of Michigan, above referred to, the scope of bargaining by the Association may be limited if the subject matter falls clearly within the educational sphere. Some conditions of employment may not be subject to collective bargaining because those particular facets of employment would interfere with the autonomy of the Regents. For example, the Association clearly can bargain with the Regents on the salary that their members receive since it is not within the educational sphere. While normally employees can bargain to discontinue a certain aspect of a particular job, the Association does not have the same latitude as other public employees. For example, interns could not negotiate working in the pathology department because they found such work distasteful. If the administrators of medical schools felt that a certain number of hours devoted to pathology was necessary to the education of the intern, our Court would not interfere since this does fall within the autonomy of the Regents under Article 8, Sec. 5. Numerous other issues may arise which fall between these two extremes and they will have to be decided on a case by case basis." See also CMU Faculty Ass'n, supra, 404 Mich. pp. 281-282, 273 N.W.2d 21.

In Nat'l Union of Police Officers Local 502-M, AFL-CIO v. Wayne County Bd. of Comm'rs, 93 Mich.App. 76, 286 N.W.2d 242 (1979), the Court considered whether a sheriff has a sphere of exclusive powers analogous to those discussed in the U of M Regents and CMU Faculty cases. The office of sheriff is a constitutional office; see Const. 1963, art. 7, Sec. 4, which provides in part:

"There shall be elected for four-year terms in each organized county a sheriff * * * whose duties and powers shall be provided by law."

The foregoing provision seems to leave definition of the duties and powers of a sheriff for the Legislature; however, it has been held that the office of sheriff has a known legal character and that the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office. Allor v. Wayne County Bd. of Auditors, 43 Mich. 76, 101-103, 4 N.W. 492 (1880); Brownstown Twp. v. Wayne County, 68 Mich.App. 244, 242 N.W.2d 538 (1976). The theory behind these cases is that if the known legal character of the office is altered, the official can no longer be characterized as a "sheriff".

The conclusion reached...