Southfield Police Officers Ass'n v. City of Southfield

• Decision Date: 15 October 1987
• Docket Number: Docket No. 88574
• Citation: 162 Mich.App. 729,413 N.W.2d 489
• Parties: , 127 L.R.R.M. (BNA) 2909 SOUTHFIELD POLICE OFFICERS ASSOCIATION, Charging Party-Appellant, v. CITY OF SOUTHFIELD, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 489

413 N.W.2d 489

162 Mich.App. 729, 127 L.R.R.M. (BNA) 2909

SOUTHFIELD POLICE OFFICERS ASSOCIATION, Charging Party-Appellant, v. CITY OF SOUTHFIELD, Respondent-Appellee.

Docket No. 88574.

Court of Appeals of Michigan.

Submitted Dec. 2, 1986.

Decided Sept. 9, 1987.

Released for Publication Oct. 15, 1987.

Hiller, Larkey & Hoekenga, P.C., Southfield, by Marc M. Susselman, Southfield, for Southfield Police Officers Ass'n.

Susan P. Ward, Southfield, for City of Southfield.

Before J.H. GILLIS, P.J., and SHEPHERD and PORTER, ^* JJ.

PORTER, Judge.

The Southfield Police Officers Association appeals from the decision and order of the Michigan Employment Relations Commission dismissing a charge filed pursuant to the public employment relations act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq. We affirm in part and reverse in part.

The association is the collective bargaining representative for police officers employed by the City of Southfield. The association alleged in its charge various unfair labor practices committed by the city. Pertinent to this appeal are the following: (1) refusal to bargain over the proposed transfer of job responsibilities in the crime prevention section and the automobile pound to nonunit employees (personnel not represented by the association); (2) refusal to bargain over the proposed subcontracting of the policing of a shopping mall to private security guards; and (3) refusal to engage in grievance proceedings with the association's designated representative. The first two allegations concern the reassignment of job tasks performed at least in part by association members prior to the hearing date in the instant case.

I

The association argues that the city committed an unfair labor practice pursuant to M.C.L. Sec. 423.210(1)(e); M.S.A. Sec. 17.455(10)(1)(e) by refusing to engage in collective bargaining over its proposed reassignment of job functions in the crime prevention section and the automobile pound. Although these functions were being performed by association members as of the date of the hearing in this case, the city proposed to assign nonunit employees to these functions in the future.

An employer subject to PERA may not unilaterally alter the terms and conditions of employment without first exhausting its mandatory duty to bargain. See M.C.L. Sec. 423.215; M.S.A. Sec. 17.455(15). It is generally established that the duty to bargain extends to the employer's diversion of work to nonunit employees or to the subcontracting of the work to nonemployees. Lansing Fire Fighters Union, Local 421 v. Lansing, 133 Mich.App. 56; 349 N.W.2d 253 (1984); Plymouth Fire Fighters Ass'n, Local 1811 v. Plymouth, 156 Mich.App. 220, 401 N.W.2d 281 (1986). Job functions encompassed by the duty to bargain are commonly known as bargaining unit work.

The association here attacks MERC's determination that the job tasks designated to undergo reassignment were not bargaining unit work. MERC found that the job tasks in question had previously been filled by both unit and nonunit employees. Because these tasks were not "exclusively" the domain of association members, they were not bargaining unit work, and the city's duty to bargain therefore did not attach. The association argues that the so-called rule of exclusivity has no basis in law. We agree.

At the outset, we note that the findings of MERC are conclusive if supported by competent, material, and substantial evidence on the record. Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 423.216(e); M.S.A. Sec. 17.455(16)(e). If, however, the decision of MERC is premised upon an error of law, we are not constrained to uphold that decision. West Ottawa Ed. Ass'n v. West Ottawa Public Schools Bd. of Ed., 126 Mich.App. 306, 313, 337 N.W.2d 533 (1983), lv. den. 418 Mich. 890 (1983). The question whether a particular subject matter affecting employment falls within the scope of the employer's mandatory duty to bargain is decided on a case-by-case basis. Id., 315, 337 N.W.2d 533.

We are unaware of any published opinions rendered by this Court or by our Supreme Court construing PERA that would govern the association's contention. We note, however, that federal decisions construing the analogous National Labor Relations Act are persuasive authority in questions of the proper interpretation of PERA. West Ottawa Ed. Ass'n, supra, 314-315, 337 N.W.2d 533. We add the caveat that the provisions of PERA are to be construed even more liberally in favor of the employees in compensation for the PERA prohibition against striking. Id., 315, 337 N.W.2d 533.

The outer contours of what constitutes bargaining unit work were addressed in AMCAR Division, ACF Industries, Inc. v. NLRB, 596 F.2d 1344, 1349 (CA 8, 1979), where the Court adopted the following test from Westinghouse Electric Corp, 150 NLRB 1574; 58 LRRM 1257 (1965), with respect the National Labor Relations Act:

"[W]here the Board has found unilateral contracting out of unit work to be violative of Section 8(a)(5) and (1), it has invariably appeared that the contracting out involves a departure from previously established operating practices, effected [sic] a change in conditions of employment, or resulted [sic] in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit."

The key question under this test is whether the proposed unilateral adjustment to work previously performed by the bargaining unit would impose an adverse impact on the unit members. See also Olinkraft, Inc. v. NLRB, 666 F.2d 302, 305 (CA 5, 1982). The dispositive question is not whether the work was performed exclusively by union employees in the past, but rather whether the employer's proposed reassignment would be inconsistent with previously established operating practices, would effect a change in conditions of employment, or result in a significant impairment of job tenure, employment security or reasonably anticipated work opportunities for those in the bargaining unit. This standard is certainly more favorable to the interests of the employees than that applied by MERC in the instant case. Given our Court's avowed adherence to the principle that PERA should be construed more liberally than the National Labor Relations Act, it would be anomalous for us to uphold MERC's exclusivity rule. ¹ We conclude that a proper disposition of this case requires remand for further conclusions of law and, if necessary, further findings of fact consistent with the test applied in AMCAR.

II

The association charged that the city had committed an unfair labor practice by refusing to bargain over its plan to permit private security guards to issue tickets for ordinance violations to juvenile offenders in a shopping mall. This work was performed in part by association members prior to the hearing. MERC dismissed this charge upon its finding that the plan was still tentative since no final decision regarding implementation had been made. Since this finding is supported by competent, material, and substantial evidence, we are bound by it.

The question presented is no different from the well-recognized rule that hypothetical cases should not be decided until such time that the case becomes ripe for adjudication. Eastern Michigan University Chapter of the American Ass'n of University Professors v. Morgan, 100 Mich.App. 219, 231, 298 N.W.2d 886 (1980), lv. den. 411 Mich. 955 (1981). Generally, a question is not justiciable when the complaining party ...