St. Clair Prosecutor v. American Federation of State, County and Mun. Employees, AFL-CIO, St. Clair County General Employees Chapter, Local No. 1518

• Decision Date: 03 June 1986
• Docket Number: ST,P,74974 and 75365,Nos. 72125,AFL-CI,s. 72125
• Citation: 425 Mich. 204,388 N.W.2d 231
• Parties: ST. CLAIR PROSECUTOR et al., Plaintiffs-Appellants, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,CLAIR COUNTY GENERAL EMPLOYEES CHAPTER; LOCAL # 1518, an Unincorporated Association, and Sharon Mormon Parrish, Defendants-Appellees. MICHIGAN COUNCIL 25, AFSCME,laintiff-Appellee, v. ST. CLAIR COUNTY, Defendant-Appellant. 425 Mich. 204, 388 N.W.2d 231
• Court: Michigan Supreme Court

Page 231

388 N.W.2d 231

ST. CLAIR PROSECUTOR et al., Plaintiffs-Appellants, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, AFL-CIO, ST. CLAIR COUNTY GENERAL EMPLOYEES

CHAPTER; LOCAL # 1518, an Unincorporated Association, and

Sharon Mormon Parrish, Defendants-Appellees.

MICHIGAN COUNCIL 25, AFSCME, AFL-CIO, Plaintiff-Appellee, v. ST. CLAIR COUNTY, Defendant-Appellant.

Nos. 72125, 74974 and 75365.

425 Mich. 204, 388 N.W.2d 231

Supreme Court of Michigan.

Argued Dec. 17, 1985.

Decided June 3, 1986.

Gary A. Fletcher, Touma, Watson, Nicholson, Whaling, Fletcher & DeGrow, P.C., Port Huron, for appellants Robert H. Cleland and St. Clair County.

Michigan Council 25, Afscme, Legal Dept. by M. Elizabeth Bunn, Lansing, for plaintiff-appellee.

Joseph T. Barberi, President, Pros. Attys. Ass'n of Michigan by Steven L. Pence, Delta Co. Pros. Atty., Escanaba, amicus curiae.

BRICKLEY, Justice.

This matter poses the following questions: whether the circuit court had jurisdiction to decide the arbitrability of an assistant prosecuting attorney's (APA) removal from office under a collective bargaining agreement entered into by the county and the union without the participation of the prosecuting attorney; whether the prosecutor is a coemployer with the county; whether the public employment relations act affects the power of the prosecutor under M.C.L. Secs. 49.41-49.43; M.S.A. Secs. 5.801-5.803, the statute which provides that an APA shall hold office "during the pleasure of the prosecuting attorney appointing him"; and, assuming the prosecutor was a coemployer, whether that status was waived.

We hold there was jurisdiction in the circuit court to determine the threshold question--whether the prosecutor was a party to the arbitration clause of the contract. We further find that the prosecutor was a coemployer, that the Court of Appeals properly found no conflict between the PERA and the prosecutor's appointment/tenure statute, that the prosecutor did not waive his authority to bargain on the tenure of his appointees, and that, accordingly, the prosecutor was not required to arbitrate his removal of an APA under the collective bargaining agreement between the county and the union. Except as to the finding that the public employer did not commit an unfair labor practice, we reverse the judgments of the Court of Appeals.

I

These consolidated cases, involving essentially the same dispute between the same parties, ¹ have simultaneously wended their way here through different forums. The second and final Court of Appeals opinion contained a clear and balanced summary of the factual and legal history of the case which we set forth.

"The facts in this case are largely uncontroverted. On July 27, 1976, [plaintiff union] was certified in MERC Case No. R 76E-282 as the exclusive representative of the general county bargaining unit, including professional and technical employees.

"On April 28, 1977, the assistant prosecuting attorneys in St. Clair County wrote a letter to the union representative indicating that they were not 'includable among your county workers because, among other things, we have duties and responsibilities of a different nature from those of other county employees.' Accordingly, the assistant prosecuting attorneys requested to be excluded from union representation.

"A similar letter was sent to the county administrator, advising him that these attorneys did not desire to be represented by the union and that the union had no authority to negotiate on their behalf. On May 19, 1977, a follow-up letter was sent to the union by the assistant prosecuting attorneys, noting that they had not received any response to their previous letter and requesting that the union take whatever steps were necessary to ensure that they would no longer be considered a part of the union bargaining unit.

"On October 3, 1977, the union was again certified as the general county bargaining "On January 3, 1978, the assistant prosecuting attorneys and clerical personnel of the prosecuting attorney's office filed a petition for election with MERC requesting that the union be decertified as to them. On May 4, 1978, a letter was written to the county personnel officer and to the union representatives notifying them that the assistant prosecuting attorneys were not and would not be part of the union bargaining unit. In addition, the letter indicated that they intended to contest unionization by filing suit for ex parte injunctive relief in the circuit court.

unit under MERC Case No. R 778-390, including professional and technical employees and not excluding assistant prosecuting attorneys. Included in the list of eligible voters prepared by the county for the 1977 union election were the names of the assistant prosecuting attorneys. Pursuant to the 1977 certification, a collective bargaining agreement covering the period from January 1, 1978, to December 31, 1980, was negotiated between the union and the county.

"On May 16, 1978, the assistant prosecuting attorneys, clerical staff, and office investigator filed suit against the county, the county commissioners, the county administrator, and the union. The complaint reiterated the previous claim that the assistant prosecutors did not wish to be represented by the union and that each of them was an employee of the then county prosecutor, Peter E. Deegan, serving at this pleasure.

"Based upon the allegations in this complaint, then Circuit Court Judge Halford Streeter granted plaintiffs' motion for a preliminary injunction and temporary restraining order to prevent the collection of union dues or service fees from the named plaintiffs. The injunction effectively excluded the assistant prosecuting attorneys from the bargaining unit since, as the union representative testified, in order to be a member in good standing of the union, it was necessary to be a dues-paying member.

"In August of 1978, the assistant prosecuting attorneys reversed direction, decided to become part of the union bargaining unit and filed a grievance, claiming that they were covered by and entitled to wage increases under the 1978-1980 collective-bargaining agreement between the union and the county.

"The county personnel officer, Terry Pettee, sent a letter to the union representative advising that the county would remain neutral in regard to the assistant prosecuting attorneys' grievance. The county offered to provide full retroactive pay to the named employees, should it be determined that they were members of the bargaining unit, but only if the attorneys withdraw 'the matter from further litigation.' The assistant prosecuting attorneys accepted the county's offer and voluntarily dismissed the circuit court action.

"On June 11, 1979, the county sent a letter to the union acknowledging that the assistant prosecuting attorneys were now a part of the union bargaining unit. The letter, however, indicated that there were some areas of the collective-bargaining agreement which had questionable application to the assistant prosecutors because of their professional status. Specifically, the letter noted that the discharge provisions were inapplicable because of the statute providing that assistant prosecutors serve at the pleasure of the county prosecuting attorney. According to the union representative, the position taken in this letter was never disputed or responded to by the union. Similarly, the county never proposed amending the contract to include special language regarding the assistant prosecuting attorneys.

"On August 13, 1980, prior to expiration of the 1978-1980 collective-bargaining agreement, a memorandum was sent to department heads informing them that the bargaining agreement would expire at the end of 1980 and that a meeting had been scheduled so that the department heads could express their concerns regarding negotiations for a new agreement. In response, Prosecutor Deegan sent a letter to "On December 31, 1980, a new collective-bargaining agreement had not been reached, so an agreement was made extending the formal union contract on a day-to-day basis. Robert Cleland took office as County Prosecuting Attorney on January 1, 1981, when the contract day-to-day extension was in effect. On February 12, 1981, Cleland wrote to the county administrator, advising that no one had the authority to negotiate on his behalf and that, as prosecuting attorney, he intended to retain all of his statutory prerogatives. Nevertheless, he provided that he did not have any objection to negotiations being undertaken in his behalf with respect to wage scales and other financial matters. At the county's request, he did not, however, assert his right to exercise his statutory powers as prosecutor until the negotiations on the new bargaining agreement were concluded. In accordance with the county's request, the prosecutor waited until a tentative agreement had been reached between the county and the union before advising the union of his objections to the county's negotiations on his behalf as to nonfinancial matters.

the personnel office indicating that he intended to take an active part in the negotiations which affected the employees of his office. The prosecutor also sent a letter to the local union representative in which he again announced his intention to take an active part in the upcoming negotiations. He, however, stated that he was not bound by the then-current collective-bargaining agreement because he 'took no part in its formation, negotiation, or execution.'

"In a letter dated March 11, 1981, he informed the union that '[t]he county administration does not now have, nor has it ever had, permission or authority from me, or my predecessor, to negotiate or bargain or agree upon any issue, with the employees of my office, which touches upon the hiring, discipline, discharge, or conditions of work of my office.' The letter further provided that he did not object to financial matters ...