NAACP v. Detroit Police Officers Ass'n (DPOA)

• Decision Date: 25 July 1984
• Docket Number: Civ. A. No. 80-73693.
• Citation: 591 F. Supp. 1194
• Parties: N.A.A.C.P., Detroit Branch; The Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John Hawkins; Helen Poelinitz; on behalf of themselves and all others similarly situated, Plaintiffs, v. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); David Watroba, President of the DPOA; City of Detroit, a Michigan Municipal Corporation; Mayor Coleman A. Young; Detroit Police Department; Board of Police Commissioners; Chief William Hart; Governor William Milliken; and The Michigan Employment Relations Commission, Defendants.
• Court: U.S. District Court — Western District of Michigan

591 F. Supp. 1194

N.A.A.C.P., Detroit Branch; The Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John Hawkins; Helen Poelinitz; on behalf of themselves and all others similarly situated, Plaintiffs, v. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); David Watroba, President of the DPOA; City of Detroit, a Michigan Municipal Corporation; Mayor Coleman A. Young; Detroit Police Department; Board of Police Commissioners; Chief William Hart; Governor William Milliken; and The Michigan Employment Relations Commission, Defendants.

Civ. A. No. 80-73693.

United States District Court, E.D. Michigan, S.D.

July 25, 1984.

COPYRIGHT MATERIAL OMITTED

Thomas I. Atkins, Brooklyn, N.Y., Barnhart & Mirer by Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, Mich., for plaintiffs.

Walter S. Nussbaum, Mara Kalnins-Ghafari, Detroit, Mich., for defendants Detroit Police Officers Association, David Watroba, President of DPOA.

Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. Corp. Counsel, Detroit, Mich., for defendants City of Detroit, Mayor Coleman A. Young, Detroit Police Department Board of Police Commissioners, Chief William Hart.

OPINION

GILMORE, Judge.

Can the City of Detroit, knowing full well that by laying off a large number of black police officers it breached its affirmative obligations in violation of the Fourteenth Amendment, fail to return these officers to work? This is one issue presented in this case, and the answer is clearly no.

Did the Detroit Police Officers Association fail to take reasonable efforts to protect these black members in connection with the layoffs and thus breach its duty of fair representation to them? This is the second major issue presented here, and the answer is clearly yes.

I

The action was brought by the Detroit Branch of the NAACP, The Guardians, Inc., and ten named individual black police officers against the City of Detroit, its Mayor, its Police Department, its Police Commissioners, its Police Chief, the Detroit Police Officers Association (DPOA), and David Watroba, President of the DPOA. Early in the proceedings, the Court certified a class of all black police officers laid off in 1979 and 1980.¹

Plaintiffs contend that the City violated affirmative duties imposed by prior findings of constitutional violations in Baker v. Detroit, 483 F.Supp. 930 (E.D.Mich.1979), aff'd sub nom Bratton v. Detroit, 704 F.2d 878 (6th Cir.), modified 712 F.2d 222 (6th Cir.1983), cert. denied ___ U.S. ___, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). Plaintiffs also contend the City defendant violated 42 U.S.C. §§ 1981, 1983, and 1985(3), and that their Thirteenth Amendment rights were denied by the City.

Plaintiffs further claim the DPOA has breached its duty of fair representation under Michigan law, and has violated 42 U.S.C. §§ 1981, 1983 and 1985(3), and the Thirteenth Amendment.

Full trial of the matter began on May 23, 1984, and continued through 21 days and 2,612 pages of transcript.

At issue is the layoff of approximately 1,100 Detroit police officers below the rank of sergeant, approximately 75 percent of whom were black. As a result of a budgetary crisis, the City, in 1979, implemented large-scale layoffs of City employees, including police officers. On October 13, 1979, the City laid off 400 police officers, of whom 71 percent were black, and in 1980 an additional 690 police officers were laid off, 75 percent of whom were black. All officers were laid off pursuant to Article 10(e) of the collective bargaining agreement between the City and the DPOA that required seniority be strictly applied in the event of layoffs, with the result that those last hired were first to be laid off.

In Baker, supra, Judge Keith found that the City of Detroit had engaged in intentional racial discrimination in its police department, at least until 1968. Baker found, and testimony at trial also revealed, that the City of Detroit did not seriously begin its efforts to eliminate the effects of its past racial discrimination until the 1970's. On July 31, 1974 the City adopted an affirmative action program for its police department, involving hiring and promotions in the Detroit Police Department. This affirmative action program has been upheld by the Sixth Circuit in Bratton, supra, and DPOA v. Young, 608 F.2d 671 (6th Cir.1979), cert. denied 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981).

The affirmative action program resulted in an accelerated hiring rate for blacks in the Detroit Police Department. In 1975, out of 393 appointments to the Detroit Police Department, 250, or 63 percent, were black. In 1976 there were no appointments. In 1977, out of 1,245 appointments, 949, or 76 percent, were black, and in 1978, the last year in which hiring has taken place in the Detroit Police Department, out of 227 appointments, 179, or 78 percent, were black.

On December 31, 1978 blacks held 1,719 of 4,393 positions in the rank of police officer, or 39.1 percent, and 1,946 of the total of 5,630 positions in the department, or a total of 34.6 percent. This figure represents the highest percentage of blacks ever in the Detroit Police Department.² On February 23, 1984, when this Court issued its partial summary judgment ruling, the Detroit Police Department had a total sworn personnel of 3,762, of which 1,007, or 26 percent, were black. It had a total of 2,668 police officers, of whom 756, or 28 percent, were black. Thus, it is clear that the net effect of the layoffs in 1979 and 1980 was to wipe out most of the affirmative action recruiting that had brought large numbers of blacks onto the police force in 1977 and 1978.³

At trial, Dr. Mark Bendick, Jr.,⁴ an economist, updated the statistical figures established by Allen Fechter in Baker.⁵ These statistics, which show the disparity between the number of blacks in the Detroit Police Department and the numbers of blacks in the relevant labor market, can only be explained, according to both Fechter and Bendick, by racial discrimination in hiring. Bendick, in updating Fechter's work, testified at trial that, if the Detroit Police Department had hired police officers in proportion to the black representation in the relevant labor pool from 1945 to 1978, the black representation at the police officer rank as of December 31, 1978 would have been approximately 47.7 percent, rather than 39.1 percent. His analysis also revealed that, as of April 30, 1980, the black representation at the police officer level would have been approximately 43.8 percent rather than the 28.3 percent. Dr. Bendick made a projection for 1988, and indicated that, if the Detroit Police Department had hired blacks in proportion to their labor market representation in all of the years from 1945 to 1978, the presence of black officers in 1988 would be 50.5 percent. As of 1984, blacks comprised 65 percent of the relevant labor market, and the City of Detroit is 67 percent black.

This description of the effects of racial discrimination on the Detroit Police Department, and the efforts of the City of Detroit to correct its past racial discrimination, cannot be traced without mentioning the police officers' unions. It is a matter of public record that both the Lieutenants and Sergeants Association in Baker, supra, and the DPOA in DPOA v. Young, supra, brought court challenges to the City's affirmative action plan. The public record, as well as testimony at this trial, indicates that, at least where affirmative action for blacks was concerned, the police unions, including the DPOA, were bitter opponents of the City. Testimony at trial indicated that the DPOA opposed efforts by the City to hire increased numbers of blacks and opposed the City's residency requirement— that all personnel in the Detroit Police Department have their residency in the City of Detroit, a requirement which, although not directly racial, has clear racial implications given the racial composition of the City of Detroit.

The first collective bargaining agreement between the DPOA and the City of Detroit was entered into in 1967. A seniority clause was bargained in at that time, and this clause has remained in effect in all agreements since. Several contracts have been entered into since then, but the parties were unable to agree to a contract in 1977, and in 1978 the impasse was referred to arbitration under Public Act 312 of 1969, M.C.L.A. § 423.231 et seq.⁶ On December 30, 1978, the Act 312 Arbitration Board made its award on economic proposals. This award was challenged by the City in the courts, and was finally affirmed by the Michigan Supreme Court on June 6, 1980. City of Detroit v. DPOA, 408 Mich. 410, 294 N.W.2d 68 (1980).

The 1978 Act 312 award plays an important role in the underlying factual scenario of this case. The City of Detroit contended that this award was excessive and was the direct cause of the layoffs. The number of officers laid off was also linked monetarily to the amount of the increased award. The testimony at trial also revealed that the City took a gamble with its court challenges to the award. It did not set aside any monies in its budgets to pay for the award. Thus, when the Michigan Supreme Court affirmed the award, the City owed a very sizeable lump sum.

From the DPOA's point of view, its attitude during this period was understandably colored by the fact that as of June 1980, when the Michigan Supreme Court rendered its decision, it had still not received the monies due on a 1977 contract, based on a December 1978 award. By 1980, DPOA members were due a considerable sum of retroactive backpay and retroactive COLA.

II

On February 22, 1984, this Court held that the City of Detroit violated the equal protection clause of the Fourteenth Amendment when it laid off the plaintiff class of black police officers. The court entered a partial...