Southfield Police Officers Ass'n v. City of Southfield, Docket No. 81974

CourtSupreme Court of Michigan
Writing for the CourtGRIFFIN; RILEY; CAVANAGH; ARCHER; BOYLE
Citation445 N.W.2d 98,433 Mich. 168
Parties, 137 L.R.R.M. (BNA) 2891 SOUTHFIELD POLICE OFFICERS ASSOCIATION, Charging Party-Appellee, v. CITY OF SOUTHFIELD, Respondent-Appellant.
Docket NumberDocket No. 81974
Decision Date22 August 1989

Page 98

445 N.W.2d 98
433 Mich. 168, 137 L.R.R.M. (BNA) 2891
SOUTHFIELD POLICE OFFICERS ASSOCIATION, Charging Party-Appellee,
v.
CITY OF SOUTHFIELD, Respondent-Appellant.
Docket No. 81974.
Supreme Court of Michigan.
Argued Nov. 2, 1988.
Decided Aug. 22, 1989.

Page 99

[433 Mich. 171] Frank A. Guido, Livonia, Gen. Counsel, for Police Officers Ass'n of Michigan.

Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C. by Dennis B. DuBay, Gary P. King, Detroit, Susan P. Ward, Asst. City Atty., Southfield, for respondent-appellant.

Riley and Roumell, Stanley C. Moore, III, Amy E. Newberg, Detroit, for amicus curiae Michigan Mun. League.

Hiller, Hoekenga and Amberg by Daniel J. Hoekenga, Joseph H. Firestone, Southfield, for Michigan Educ. Ass'n/NEA amicus curiae.

Bernard Feldman, Gail McCullers, Livonia, for amicus curiae.

Page 100

GRIFFIN, Justice.

In this case, the issue is whether the [433 Mich. 172] Michigan Employment Relations Commission used the appropriate standard in determining that the City of Southfield, a public employer, had not committed an unfair labor practice under the Michigan public employment relations act. 1 The charge was filed against the city after it unilaterally transferred certain job duties, previously performed interchangeably by several bargaining units, to one of these groups. Because the transferred work had not been performed exclusively by the bargaining unit represented by the objecting labor organization, the MERC found no violation of the duty to bargain. We conclude, for reasons set forth below, that the MERC did not err, and we reverse the decision of the Court of Appeals.

I

In connection with its law enforcement activities, the City of Southfield operates an auto pound which, in the past, had been staffed interchangeably by police officers, command officers, and civilian employees. The city also has a crime prevention program which had been staffed by both police officers and civilian safety technicians. When the city found it necessary, because of concerns about crime, to put more police on the street, the police officers in those two sections were reassigned to street duty, and their jobs in crime prevention and the auto pound were assumed by the civilian employees.

Thereafter, the Southfield Police Officers Association, a labor organization representing police officers and police officer specialists employed by the city, filed an unfair labor practice charge with the MERC. The association complained that the city had violated the PERA by refusing to bargain concerning[433 Mich. 173] its decision to transfer bargaining unit work in crime prevention and the auto pound to civilian employees who are members of a different bargaining unit and are represented by a different union.

Following a hearing, the hearing referee issued a decision in which he recommended dismissal of the unfair labor practice charge because the association had not established that the work transferred had been exclusively performed in the past by the association's members. The hearing referee based his decision on reasoning set forth in an unpublished opinion of the Court of Appeals, Detroit Police Lieutenants & Sergeants Ass'n, decided February 22, 1982 (Docket No. 52931). Thereafter, the hearing referee's decision was affirmed by the MERC, which explained:

"Charging Party argues that the Commission is not bound to follow an unpublished Court of Appeals decision, and that the [hearing referee] erred in requiring Charging Party to show that the auto pound work and crime prevention work was performed exclusively by its members. We agree with the Charging Party that an unpublished opinion of the Court of Appeals is not binding beyond that case. However, since the Detroit Lieutenants and Sergeants, we have applied the 'exclusivity' rule to cases where unilateral transfer of bargaining unit work has been alleged because the rationale of the Court in that case was sound. Where particular job functions have been assigned interchangeably to both represented and nonrepresented employees, or to members of different units, and the unions involved have had an opportunity to demand bargaining over these assignments in the past, the mere fact that an employer assigns more of the work to one of these groups should not give rise to a bargaining obligation. See City of East Detroit [v Police Officers Ass'n ], 1982 MERC Lab Op 1442, [433 Mich. 174] 1450; City of Dearborn [v Alcamo ], 1984 MERC Lab Op 78, 81."

On appeal, the association challenged the "exclusivity rule" followed by the MERC. The Court of Appeals concluded that in the absence of "any published opinions rendered by this Court or by our Supreme Court construing PERA that would govern the association's contention," the exclusivity rule had "no basis in law." Southfield

Page 101

Police Officers Ass'n v. Southfield, 162 Mich.App. 729, 732-733, 413 N.W.2d 489 (1987). Refusing to apply the "exclusivity rule," the Court of Appeals panel then substituted the so-called "adverse impact" rule formulated by the National Labor Relations Board and set forth in Westinghouse Electric Corp., 150 NLRB 1574, 1577; 58 LRRM 1257 (1965), and AMCAR Div., ACF Industries, Inc. v. NLRB, 596 F.2d 1344, 1349 (CA 8, 1979). In its opinion, the Court of Appeals stated:

"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. 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." Id. at 734, 413 N.W.2d 489.

[433 Mich. 175] This Court then granted the city's application for leave to appeal. 430 Mich. 859 (1988).

II

Findings by the MERC with respect to questions of fact are conclusive if supported by competent, material, and substantial evidence on the record considered as a whole. Const.1963, art. 6, Sec. 28, M.C.L. Sec. 423.216(e); M.S.A. Sec. 17.455(16)(e). However, as we recognized in U of M Regents v. Employment Relations Comm., 389 Mich. 96, 102, 204 N.W.2d 218 (1973), this Court may review the law regardless of the factual findings of the Commission. The Administrative Procedures Act, 1969 P.A. 306, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. provides in pertinent part:

"Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute." M.C.L. Sec. 24.306(1)(a); M.S.A. Sec. 3.560(206)(1)(a).

Judicial review includes the determination of whether a decision of the MERC is "authorized by law," Const.1963, art. 6, Sec. 28, and such a decision may be set aside on appeal if based on a "substantial and material error of law." M.C.L. Sec. 24.306(1)(f); M.S.A. Sec. 3.560(206)(1)(f).

In the instant case, the Court of Appeals determined that the MERC's use of the exclusivity rule was, in effect, an "error of law." We disagree.

Although this Court has observed that an unpublished opinion of the Court of Appeals is of no precedential value, see Stine v. Continental Casualty[433 Mich. 176] Co., 419 Mich. 89, 95, n. 2, 349 N.W.2d 127 (1984), it does not necessarily follow that the absence of published precedent as reinforcement for a long-established MERC rule deprives that rule of any relevance. InAFSCME v. Wayne Co., 152 Mich.App. 87, 98, 393 N.W.2d 889 (1986), lv. den.426 Mich. 875 (1986), the Court of Appeals recognized that

"[i]t is impossible to promulgate specific administrative rules in anticipation of every conceivable situation prior to the enforcement of a statute. Thompson v Dep't of Corrections, 143 Mich App 29, 32-33, 371 NW2d 472 (1985), conflicts order den 422 Mich 1238 [372 N.W.2d 321] (1985). An administrative agency may thus announce new principles of law through adjudicative proceedings in addition to doing so through its rule-making powers. DAIIE v Comm'r of Ins, 119 Mich App 113, 117; 326 NW2d 444

Page 102

(1982), lv den 417 Mich 1077 (1983). The effective administration of a statute by an administrative agency cannot always be accomplished through application of predetermined general rules. Rather, some principles of interpretation must evolve in response to actual cases in controversy presented to the agency. An administrative agency must therefore have the authority to act either by general rule or by individual order."

For over ten years, the MERC has applied the exclusivity rule as a screening device in identifying those situations in which a duty to bargain may or may not arise out of the transfer of bargaining unit work. We cannot conveniently dismiss this longstanding interpretation of the PERA by the MERC as an "error of law" merely because no appellate court in this jurisdiction thus far has spoken publicly on the issue. This Court has traditionally accorded deference to the agency interpretation of a statute:

[433 Mich. 177] "It is well settled that the construction placed upon statutory provisions by any particular department of government for a long period of time, although not binding upon the courts, should be given considerable...

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29 practice notes
  • Poet v. Traverse City Osteopathic Hosp., Docket No. 82941
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...standard of review to civil cases in general has been questioned. See Southfield Police Officers Ass'n v. Southfield, 433 Mich. ----, 445 N.W.2d 98 (1989) (Boyle, J., dissenting.) However, we leave the full discussion of this topic for a later day. 22 In civil cases, the courts are divided ......
  • St. Clair Intermediate School Dist.t v. Intermediate Educ. Association/Michigan Educ. Ass'n, Docket Nos. 107479
    • United States
    • Supreme Court of Michigan
    • July 31, 1998
    ...and material error of law. M.C.L. § 24.306(1)(a),(f); M.S.A. § 3.560(206)(1)(a),(f). Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 445 N.W.2d 98 (1989). [Amalgamated Transit Union v. SEMTA, supra at 450, 473 N.W.2d See also NLRB v. United Ins. Co. of America, 390 U.S. 254, ......
  • Lakeshore Public Schools Bd. of Educ. v. Grindstaff, Docket No. 83358
    • United States
    • Supreme Court of Michigan
    • September 25, 1990
    ...of its own enabling act, particularly long-standing administrative precedent, Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 176-177, 445 N.W.2d 98 (1989), ultimately it is this Court's duty to construe statutes and to determine the legislative intent underlying them. See U.......
  • Sanchez v. Lagoudakis, Docket No. 189094
    • United States
    • Court of Appeal of Michigan (US)
    • July 9, 1996
    ...is entitled to considerable weight and ought not be overruled absent cogent reasons. Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 177, 445 N.W.2d 98 We conclude, therefore, that the Code authorizes a health department, a food service employer, or both to take discriminator......
  • Request a trial to view additional results
29 cases
  • Poet v. Traverse City Osteopathic Hosp., Docket No. 82941
    • United States
    • Supreme Court of Michigan
    • August 22, 1989
    ...standard of review to civil cases in general has been questioned. See Southfield Police Officers Ass'n v. Southfield, 433 Mich. ----, 445 N.W.2d 98 (1989) (Boyle, J., dissenting.) However, we leave the full discussion of this topic for a later day. 22 In civil cases, the courts are divided ......
  • St. Clair Intermediate School Dist.t v. Intermediate Educ. Association/Michigan Educ. Ass'n, Docket Nos. 107479
    • United States
    • Supreme Court of Michigan
    • July 31, 1998
    ...and material error of law. M.C.L. § 24.306(1)(a),(f); M.S.A. § 3.560(206)(1)(a),(f). Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 445 N.W.2d 98 (1989). [Amalgamated Transit Union v. SEMTA, supra at 450, 473 N.W.2d See also NLRB v. United Ins. Co. of America, 390 U.S. 254, ......
  • Lakeshore Public Schools Bd. of Educ. v. Grindstaff, Docket No. 83358
    • United States
    • Supreme Court of Michigan
    • September 25, 1990
    ...of its own enabling act, particularly long-standing administrative precedent, Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 176-177, 445 N.W.2d 98 (1989), ultimately it is this Court's duty to construe statutes and to determine the legislative intent underlying them. See U.......
  • Sanchez v. Lagoudakis, Docket No. 189094
    • United States
    • Court of Appeal of Michigan (US)
    • July 9, 1996
    ...is entitled to considerable weight and ought not be overruled absent cogent reasons. Southfield Police Officers Ass'n v. Southfield, 433 Mich. 168, 177, 445 N.W.2d 98 We conclude, therefore, that the Code authorizes a health department, a food service employer, or both to take discriminator......
  • Request a trial to view additional results

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