Opinion
Docket No. 73718.
Decided May 21, 1984. Leave to appeal applied for.
Gregory, Van Lopik, Moore Jeakle (by Nancy Jean Van Lopik), for plaintiff.
Donald Pailen, Corporation Counsel, Mark R. Ulicny, Deputy Corporation Counsel, and Frank W. Jackson and Linda C. Ragland, Assistants Corporation Counsel, for defendant.
Amicus Curiae:
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston Waldman, P.C. (by Theodore Sachs and Mary Ellen Gurewitz).
Plaintiff appeals as of right from the denial of its motion for summary judgment and the grant of defendant's motion for summary judgment dismissing plaintiff's complaint.
The parties agree on the operative facts. Plaintiff, the Detroit Police Officers Association (DPOA), is the exclusive collective-bargaining representative for police officers below the rank of sergeant employed by defendant, the City of Detroit. Under Article 6D of the parties' collective-bargaining agreement, the police department retained "the right to determine reasonable schedules of work". The city and DPOA signed an addendum to their collective-bargaining agreement on June 22, 1981, which provided at ¶ 20 for an experimental permanent shift program which was to begin within six months from the date of the agreement, and was to "continue for one year at which time the parties shall negotiate as to whether or not it shall continue".
Permanent shifts were instituted at two precincts on November 1, 1981. A year later, plaintiff received a letter from the chief of police dated November 1, 1982, in which the chief stated that, pending negotiations concerning extension of the experimental shift program, as agreed to in ¶ 20 of the addendum, the permanent shift assignments would continue. By June 8, 1983, however, presumably under authority of Article 6D, the city announced that it would return to rotating shifts in those precincts on July 3, 1983, unless the DPOA could convince it to do otherwise. Negotiations held during June, 1983, apparently proved fruitless. On June 28, 1983, the DPOA filed a request for a proceeding under 1969 PA 312, as amended, MCL 423.231 et seq.; MSA 17.455(31) et seq., which provides for compulsory arbitration of disputes which occur in police and fire departments. On the same day, this suit was filed, alleging a prospective violation of § 13 of that statute, which reads:
"During the pendency of proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under this act."
In ruling on motions for summary judgment made by each party, the trial court determined that the permanent shifts were not an "existing condition of employment", and, since defendant retained the right to determine reasonable schedules of work in Article 6D of the parties' main collective-bargaining agreement, the court decided that the scheduling of work was not a mandatory subject of bargaining under the statute so that defendant was free to unilaterally alter the schedules.
On appeal, plaintiff argues that the scheduling of shifts is one of the "other conditions of employment" which are mandatory subjects of bargaining which may not be unilaterally changed by action of either party during the pendency of § 13 proceedings before the arbitration panel. Thus, plaintiff contends, defendant had no authority to revert to rotating shifts once plaintiff had invoked an arbitration hearing.
As suggested in the amicus curiae brief filed by the Detroit Fire Fighters Association, we think that the issue in this case should more appropriately be analyzed as whether the scheduling of shifts constitutes "hours". When so phrased, it is apparent that the permanent shift program falls under the category "hours". Act 312 was clearly intended to supplement the public employee relations act (PERA), MCL 423.201 et seq.; MSA 17.455[1] et seq. Local 1277, Metropolitan Council No 23, American Federation of State, County and Municipal Employees, AFL-CIO v Center Line, 414 Mich. 642, 652; 327 N.W.2d 822 (1982). Under § 15 of PERA, issues that fall into the category of "wages, hours, and other terms and conditions of employment" are deemed to be mandatory subjects of bargaining. Id., citing Detroit Police Officers Ass'n v Detroit, 391 Mich. 44, 54-57; 214 N.W.2d 803 (1974). The test generally applied to determine a mandatory subject of bargaining is whether the matter has a significant impact upon wages, hours, or other conditions of employment. Detroit v Michigan Council 25, American Federation of State, County and Municipal Employees, 118 Mich. App. 211, 215; 324 N.W.2d 578 (1982), lv den 417 Mich. 990 (1983). The scheduling of shifts certainly has an impact on the hours employees work.
Further support for this conclusion comes from federal case law. In general, Michigan has adopted the federal court's approach as to what constitutes a mandatory subject of bargaining, since the phrase "wages, hours, and other terms and conditions of employment" is taken verbatim from the National Labor Relations Act. Center Line, supra, p 653. The United States Supreme Court long ago settled this point:
"Contrary to the Court of Appeals, we think that the particular hours of the day and the particular days of the week during which employees shall be required to work are subjects well within the realm of `wages, hours, and other terms and conditions of employment' about which employers and unions must bargain." Local Union No 189, Amalgamated Meat Cutters Butcher Workmen of North America, AFL-CIO v Jewel Tea Co, Inc, 381 U.S. 676, 691; 85 S Ct 1596; 14 L Ed 2d 640 (1965).
More recently, the Eighth Circuit Court of Appeals ruled in American Oil Co v National Labor Relations Board, 602 F.2d 184, 186 (1979), that revision of a simplified work schedule fell within the category of "hours" so as to be a mandatory subject of bargaining.
Since we conclude that the permanent shift program was a mandatory subject of bargaining, we must reverse the trial court's order granting summary judgment for defendant based on GCR 1963, 117.2(1) and (3). Plaintiff not only stated a claim upon which relief may be granted, but, since there appear to be no factual issues, we find that plaintiff is entitled to relief as a matter of law and that the trial court also erred in denying plaintiff's motion for summary judgment. The city violated § 13 by reverting to rotating shifts after plaintiff had invoked the arbitration proceedings. Thus the trial court also erred in dissolving the preliminary restraining order which was to prevent defendant from reinstating rotating shift assignments pending resolution of the arbitration proceedings.
We do not fault the city's actions; the record indicates that it made every effort to cooperate with plaintiff concerning the experimental shift program. Nor do we dispute the city's scheduling rights under Article 6. Indeed, it was presumably under authority of Article 6 that defendant extended the permanent shift program while negotiations were being held on the program. We hold only that, once plaintiff initiated arbitration proceedings pursuant to the compulsory arbitration statute, defendant was precluded by § 13 of that statute from unilaterally abrogating the permanent shift program which was still in effect when plaintiff demanded arbitration. The direct effect of § 13 is to preserve the status quo pending arbitration proceedings, and to prevent unilateral action such as defendant proposed in this case.
Reversed and remanded for proceedings consistent with this opinion.