*1
408 Mich
410
410
v
POLICE
ASSOCIATION
CITY OF DETROIT DETROIT
OFFICERS
16).—
(Calendar
10,
Argued January
No.
Docket
63929.
No.
6, 1980. Rehearing
tion requirement police contractual officers reside *2 parties city, residency the unless were able to resolve the issue negotiation by days City further within 30 of the award. The brought seeking an review the action arbitrators’ challenging constitutionality award and the of the statute provides compulsory which for arbitration. Defendant Detroit intervening Police Officers Association and defendant Detroit brought Fighters seeking Fire Association counterclaims en- payment forcement of the arbitration award and of interest on portions Wayne from the its economic time of its issuance. The Court, Baum, J., granted judgment enforcing Circuit Victor a award, supplemental and the later a enforced award concern- ing hardship exemption existing residency the from the re- grievance quirement and the use of arbitration to resolve hardship. plaintiff appeals prior individual claims of The to opinions Appeals. by of the Court of decision In Justices Wil- liams, Jr., Fitzgerald, Moody, dissenting opin- Blair and and a Levin, Supreme compul- ion the Justice Court held that the sory arbitration statute is constitutional. Williams, joined by Ryan Moody,
Justice Justices and wrote: statute, delega- The as amended in is a constitutional power legislative provides tion of because it standards for guidance reasonably precise subject the arbitrators as as the permits, and, requires practical matter, matter or aas the statutory provides adequate political accountability. scheme award, exception hardship The arbitration with the of the exemption city’s requirement, residency complies from the requisite statutory supported compe- the standards and is tent, material and substantial evidence on the whole record. However, statutory provision grant there is no under which to portion interest on the economic of the The award. other claims plaintiff raises, statutory impermissibly the that the scheme usurps powers city Equal a the of home rule and violates the right denying Protection Clause the to cast an effective election, municipal previously rejected by ballot have been the Court. delegate may power, provided 1. The that the prescribed guidance body standards for it which delegated precise reasonably subject are as as the matter requires permits. specifically or The statute at issue states its guiding purpose, parties applies, defines the to whom it estab- 408 Mich arbi- specific resolution of time for initiation and lishes limits tration, procedure appointment and provides for the detailed Michigan Employment persons appointed the removal of Arbitrators for the selec- Commission Panel Relations representative delegates panel’s tion of the arbitration guidelines procedural public chairperson, formulates for remand, scope hearing narrows ("factors”) eight authority specific considerations arbitrators’ issues, and of economic and non-economic for their decision subject availabil- the effect of an arbitral decision details provide eight judicial in the act ity factors review. reasonably precise which are at least as standards purpose permits effectuating subject requires matter or procedure of contract- to afford a resolution act ("interest”) statutory requirement disputes. formation panel adopt offer the arbitration last of settlement complies applicable statutory nearly with the factors finds more sufficiency clearly. of these standards more Neither shows the provision presence absence of the last-best-offer nor constitutionality necessary dictates of to the act’s delegation doctrine. argues public, City political, ac- *3 2. of Detroit necessary, countability addition to of the arbitrators delegation, constitutionality proper of the stat- to sustain the previously recognized Supreme Court the inherent ute. The has objectives affording a the of the arbitrators tension between public independence requiring high degree of and accountabil- significantly Legislature ity responsibility. In 1976 the and impartial of act to the tenure of the modified the scheme the as chairpersons panels arbitration and as to the method greatly These have increased their selection. modifications persons chairpersons accountability to serve as of the available panels, arbitra- tend eliminate "hit-and-run” of tors, of a with lead the establishment class arbitrators and compatible politi- responsibility notion tenure and appointed public accountability. Should actions of cal or comment, may express the voters invite unfavorable arbitrators by directing complaints to as the Governor their dissatisfaction gubernatorially appointed MERC commissioners. as to the well not be 3. MERC commissioners and members need specific community directly people to the accountable Interruptions authority arbitral is exercised. over which although departments, primarily local police fire work pose settings, Legislature to a were in their deemed health, public safety Should and welfare. to the state’s threat v people accountability with the dissatisfied of the state’s statutory scheme, upon voters, the burden is the state’s includ- ing affected, locally political upon those to exercise their will Legislature. objectives The inherent tensions between the affording independence making arbitrators sufficient deci- complex disputes maintaining sions on accountability their adequately to the have been balanced in view of the provision standards, statutory extremely public atmos- phere operates, in which statutory the arbitration and the provision judicial statutory review. The standards check the unfettered authority provide exercise of the arbitrators’ guides Legislature them with signifi- which the deemed to be resolving cant in negotiated those issues which have been sharpened by parties, yet Therefore, remain unresolved. matter, practical adequate political the scheme exhibits or public accountability. provides 4. The statute the Court with a license neither to consider subject the wisdom of an arbitration award nor to it to review, specifically scope de novo but confines the of review to exceeding panel’s jurisdiction, awards without or unsup- or ported by competent, material and substantial evidence on the record, procured by whole unlawful means. The award must upon material, competent, be based and substantial evidence relating applicable prescribed by factors the statute in issues, the case of non-economic or to the last offer which nearly complies "more with” the factors in the case of economic is, panel’s issues. That the arbitration award must reflect the applicable statutory they factors and must be established competent, material and substantial evidence on the whole However, majority record. the fact that a of the arbitrators may persuaded by party’s argu- have been evidence and they ment as to certain issues does not mean that have failed give statutory separate factors that consideration re- quired by law. The has evinced no intention that equal weight; each factor be accorded it is the arbitration particular that must important decide which factors are more resolving issue, although applicable a certain contested all factors must be considered. 5. The Court’s review of the award must be undertaken with *4 sensitivity considerable in order to accord due deference to the expertise displace arbitrators’ and not their choice between two reasonably differing views. On the economic issues of the cost of (COLA) living wages, City allowance and because the of Detroit existing advocated the abolition or severe diminution of the agreement, wage proposal higher considerably COLA its was 408 Mich requested conjunction police one the officers with a than the Therefore, provision. the arbitrators continuation of the COLA together considering statutory discussed the two issues finding as to one. There was factors and each reached City that of Detroit was at the uncontradicted evidence taxing legal power, did not its but arbitrators limit of to be conclusive as to the economic issues. consider this fact ability pay city that was “limited” but The asserted budget city did not introduce its the arbitrators because the city to determine what other needs of the were were unable previous spending compared impor- city’s with the met funding necessary police and amounts officers’ tance of wage panel on the and COLA issues. The considered last offers that, major importance in another recent arbitration it to be of proceeding, Sergeants the Detroit Police Lieutenants and Asso- agree- ciation had obtained a continuation of a similar COLA police enjoyed strong Because the two associations had ment. relationship, panel decided that a denial of the historic police police imperil morale and COLA to the officerswould public. performance of their services to the The effective apt persuasive comparisons that more and also found fringe police salaries and benefits to be with the Detroit lieu- sergeants police working and with other officers tenants and area, metropolitan City the Detroit rather than with other officers, employees, police private out-of-state secu- rity employees. panel also that it decided should maintain compensation police the historic relation between the officers sergeant the rank of and of those above. The
below high police the maintenance of morale could concluded effectively by preserving previous more be insured COLA arrangements, inextricably which were related the resolu- wage tion of the issue. The award of the defendant’s last offer issues, i.e., wage proposals as to economic with these lower agreement, competent, supported by the continued COLA was material and substantial evidence whole record. on the City argues 6. The of Detroit that the economic award should city’s evidence the vacated because of refusal to admit into purported Exhibit to show the financial effect city the award would have on the because of the DPOA’s relationship Fighters with the Detroit Fire Association and police agreed, sergeants. city already lieutenants and had benefits, respect be a to certain economic that there would officers, previous fighters police parity between fire proposed police ser- contracts with the lieutenants *5 v geants computed provided pay upon that their be had would police city argued any that of a officer. Thus the economic this case would in the total cost to the award in be reflected budget, ability pay. city The in the total and its to chairman of panel 30 from evidence on the the arbitration excluded Exhibit ground statutory with the other two unions completed of that decision is had not been at that time. Review egregious as cause limited to whether the exclusion was so unsupported the award on the contested economic issues be by competent, and substantial evidence on the whole material light by panel to record. In the of remarks the chairman of the among they were the effect that aware of the historic relations bargaining city, the three units and the the exclusion from evidence of Exhibit 30 cannot be said to have caused the unsupported competent, by economic award to be material and substantial evidence on the whole record. arbitrators, considering 7. The the issue of the requirement, erroneously compare city’s residency failed to employment residency requirements pub- condition of with private employees performing lic and similar .services. by parties statutory omission of evidence on this factor does Therefore, to it. not excuse the arbitrators’ inattention requirement hardship exemption residency of a from the award supported up parties is not on this record and it remains applicable
to either introduce evidence on the factors before the bargaining arbitrators or to return to collective on the issue. concerning did not make an award the 1978 arbitrators defining Detroit ordinance "residence” and therefore a review- ing amending by court cannot fill this void de novo contract parties to include it. The should also resolve the issue of the bargaining inclusion of the ordinance collective and arbitra- tion. question purely statutory. 8. The of interest on the award is court, concept
The arbitration is not a and the of a money judgment totally concept alien to the of the arbitra- Therefore, disputes tion of labor in critical services. provision concerning of the Revised interest on Judicature Act apply "money judgment recovered in a civil action” does to the arbitrators’ economic award. Neither is this an award very purpose of the statu- "founded” on contract because the tory the award which arbitration is to form a contract and executed to the extent that an amount results has not been may granted liquidated upon interest has been sum, provision statutory under ascertained. In there no 408 Mich portion of the arbitra- grant on the economic interest which to tors’ award. concurring Ryan, Jus- Moody, joined Justice Justice respond Williams, separately Justice Levin’s wrote tice opinion: dissenting opinion of redetermi- offered 1. The result re- the last-best-offer awards without the economic nation of striction, although compromise presents solu- an attractive *6 post require problem, facto an ex the economic would tion to parties to change It would cause the the rules of the contest. again accordance with rea- resolved in what has been debate standards. sonable yields system results that the last-best-offer 2. The conclusion necessarily unconstitutionally arbitrary does which are Michigan of the or United No section follow in fact or law. support conclusion. Further- is cited States Constitution more, for the there is a sound rationale it conceded that is private promotion adoption system: settlements of the enough try penalizing to settle. did not hard those who there is a rational must determine whether 3. The Court Legislature’s judgment, role but it is not the basis for the wisely un- acted whether the Court to decide judging proper enacting test for wisely this statute. The statute, police pursuant constitutionality to the enacted legislation power, Clause is whether under the Due Process permissible legislative objec- relation to a bears a reasonable comports Equal it with the test to determine whether tive. The legislative essentially the same. The classi- Clause is Protection legiti- rationally it related to a must be sustained if is fication power government not have the interest. The Court does mate legislation arbitrarily to be unconstitutional. declare certain Fitzgerald agreed compulsory arbitration act that the Justice constitutional, those advanced for different reasons from is but agreed Justice Williams’ He also Justice Williams. analysis He wrote: of the other issues in the case. "political accountability” degree of the arbitration 1. The determining panel constitu- test for the act’s is not the crucial specifically "accountability” tionality. the act in that There legislatively provides any award must be based on certain criteria, prescribed is not free to and thus the arbitration premised unique of what the criteria an award on its view issue be; importantly, fidelity ought criteria will be to the more judiciary sought. But it stretches if review is examined arbitrators, including chair- credulity to contend that the "politically in some fashion person, accountable” are v DPOA question political electorate. Debate on the accountability misplaced emphasis. ignored 2. "politically What has been is that a accountable” entity, Legislature, has enacted this mechanism for the peaceful disputes, resolution of "politically labor and another entity, government accountable” the local unit of which consti- "management” charged tutes responsibility has been with the putting bargaining on the dispute. table its offer to settle the The arbitrators directly politically themselves need not also be accountable; system, might such a politically while it make for expedient awards, hardly spirit would be consonant with the having impartial binding an forum for arbitration. language 3. Much of the in the dissent is an examination of legislation the wisdom of the rather than of its constitutional- ity. simply legislation, If the act is bad the electorate should responsible call to account promulgation. those who were for its Affirmed, except hardship exemption as to city’s from the residency requirement. Levin, joined by Justice Chief Justice Coleman and Justice Kavanagh, dissenting, would hold the statute unconstitutional ground delegates power prescribe on the (law) policy to the chairman adequate of the arbitration without safeguards circumscribing power, the exercise of that and the provision last-best-offer exacerbates rather than cures the stat- entirely apart ute’s deficiencies so that from its constitutional- *7 otherwise, ity provision. it is unconstitutional with that The holding given effect, prospective should be and this case and Sergeants the Lieutenants and Association case remanded for redetermination of the economic awards unrestrained the depend last-best-offer limitation. Because the merits in this case part city’s appeal in on the merits of the in the Lieutenants Sergeants case, and application Association for which for leave appeal being abeyance, is now held in there can be no final city’s application decision in this case until the in the Lieuten- Sergeants ants and case is decided. Implicit Legislature’s 1. in constitutionally the conferred power disputes to enact concerning laws for the resolution of public employees power delegate resolving is the the author- ity. delegation principles The doctrine and other constitutional protect against delegation seek to excessive or misuse and delegated lawmaking power. rooted, abuse of The doctrine is at part, provision vesting "legis- least in in the constitutional the power” Representatives, lative in the Senate and House of premise reflects the fundamental democratic that the law by representatives people. should be made chosen the It Mich precept complexity the attempts that the of to reconcile statutory proved governing process. test has “standards” assuring legislative responsibility for fundamen- in ineffectual delegated structuring policy in exercise of the tal decisions inquiry totality appropriate the of power. whether The more is delegation legisla- safeguards surrounding of the standards and against unnecessary power sufficiently protects and uncon- tive challenged discretionary power. review a trolled A court should delegation power adequate legislative to examine whether of against arbitrary provided or uncontrolled checks have been however, supplant inquiry, cannot the an official action. Such legislatively inquiry the devised framework for basic whether application the funda- in official action —considered —secures preserving legislative delegation goal of doctrine: mental the policy. responsibility public of for the determination requires Accountability 2. a structure which does inhibit intelligible policies emergence principles and coherent the of possibility guide the resolution of individual cases because response presupposes political elector- of constructive being policy applied. can determine the ate and delegation because insulates The statute violates doctrine accountability decision-making process from results political process. policy- It is novel within arbitrators, among dispersed making power ad hoc which emergence intelligible principles. prevents the of visible and Therefore, generally regarded safeguards are as ade- which power quate delegation lawmaking do not such a assure accountability context. The chairman of in this public policy govern partic- a will arbitrators decides the delegation legislative ular case and have the effect of law. Such a public only power generally made to full-time officers or provides agencies. This a structure for devel- administrative responsive opment policy politically man- in a uniform delegation developed in ner. doctrine the context of continuing safeguards implicit exercise of in centralization and power precedents recognize policy-making and therefore few dispersal pol- resulting unsupervised from the mischief power. icy-making questions policy, 3. of the arbitrators involve The decisions statutory principally the funds. The stan- allocation of sufficiently amorphous to allow confronted dards are (and justify) given with a of evidence to reach result set virtually any party The absence of favor of either issue. decision-making *8 principled ad structure inherent in the hoc statute, body emergence of law of a coherent the inhibits the v precludes any meaningful accountability. When sensitive judgments upon any principles of this sort are known not based upon they questions policy cannot be said to be based decided Therefore, Legislature by the in the first instance. the decisions legislative scrutiny. made once must be accessible The ab- principles prevents sence also discernible from scrutinizing being is in what decided its interest. uniformity process by 4. The lack of which invited dispersal policy-making power is in an evil. not itself It is democracy consonant with a constitutional for those who exer- powers government apply policies cise different in power among same situations. Inherent in the diffusion of state potential non-uniformity policy-making. ad hoc arbitrators is in fully explained reasoning, if the in one Even chairman case his applied by would be no assurance that the there rule would be flowing him or others in other A cases. related vice from the principles Legislature accomplishing absence is that the indirectly directly: do that which it cannot what the creation of are, effect, practical local laws. presented It said 5. cannot be that the issues in arbitration capable may principles, are resolution necessity important complex many be cases. It is that there continuing body responsible development for be of coher- principles duty-bound explain ent the bases for distinc- past tion when a result different that of from cases is reached. Legislature may adopt mandatory procedure for resolv- ing bargaining disputes, authority collective but the should be governmental agency continuing vested in a officer or responsibility through appointing electorate author- ity power. for the of that exercise Although they may pass 6. traditional standards-oriented inquiry, provided by Legislature guides the "factors” decision-making adequately protect the arbitrators do not against delegation unnecessary excessive or and uncontrolled discretionary power. public policy statement of general statute is no more than a directive that the arbitrators go disputes. statutory shall forth settle Nor do the stan- cases, supply coalescing policy. dards In element of most particularly issues, any in last-offer of economic justified by can reasonable decision be one more of matter, statutory practical criteria. As a has they offered the arbitrators little direction as to what should decision, they consider or less how should reach a and still assurance to the electorate that arbitration awards will *9 408 Mich pro- consistent, through principled, fathomable a or
fashioned cess. inadequacy in case the is of standards shown The 7. panel suggested of the arbitration that the chairman fact the wage inability pay city’s the demands of to union’s claim that a inabil- unless the asserted serious consideration will not receive absolute, effectively ity of finan- eliminates the factor which ability city applying In the the from consideration. cial of Sergeants "comparable” Associa- factor in the Lieutenants and case, considera- chairman of the arbitrators indicated tion the "comparable” parties’ stipulations to reliance on the ble only reaching to the decision dismiss the communities in first testimony opinion no in because established evidence a later sergeants police in of lieutenants and cities that the functions comparable. change parties agreed to This of had were that position give to mean- the failure statute demonstrates guidance consistency ingful to a of in reason- or insure measure ing of even the same arbitrator. provided by judicial not the statute is a The review 8. delegated improper policy- safeguard against exercise of Requiring making power. reflect that the award consideration provides applicable statutory no assurance that of factors all intelligible principles use of will show consistent the decisions particular application case. than The standards broader justified. general any can so reasonable decision be are the award is assured unless the chairman Affirmance of employed panel the record or has considered evidence outside contemplated by the statute. Arbitrari- criteria not decisional decision-making if rules are cannot be detected ness even published, required to nor are The awards are not unknown. sepa- required policy to their decisions the arbitrators make But, event, findings any a from of fact. in court rate their non-uniformity policy not could resolve the confronted with Furthermore, panels requiring the to solicit evidence conflict. concerning parties applicable the noneco- from the factors permitting the discre- nomic issue but chairman of ignore properly to admitted evidence as the economic tion logical, inconsistency practical, if not issue shows a supports judicial the award. review of evidence which provision requires that the arbitrators choose 9. last-offer issue, party’s proposal but forbids them one on each economic requirement own effect forces fashion their award. The may policy adoption policy be uniform with the uniformity communities, applied to the lack of similar vitality any exacerbated feature. last-best-offer v policy might develop parties’ chairman is in the hand: they it, their they can fashion offers in accordance can reject will, certain because the other side or if there is no policy, parties inadequate discernible have information to guide fashioning bargaining strategy devising them their acceptable except they an last offer what can discern of the preferences. sum, personal individual chairman’s In there can principled development govern be no in all cases because shaped parties’ each one is and determined last offer. political Last-offer arbitration further reduces the accountabil- ity longer required of the chairman of the who is no announce the result which he thinks most in accord with the *10 statutory Legislature particular factors declared or the policy implicit chairman, in the decision he makes. The as he case, did in this can dissociate himself from the result he by indicating announces that if he were not restrained result, last best presumably offer he would reach a different lying Responsibility between the last best offers. for the terms Legislature of the award now has moved even further from the parties and falls somewhere between the and the chairman of panel. The last-best-offer arbitration eliminates the most appropriate option, question result as an and it is a of some Legislature itself, deprive moment whether can or its delegate, authority public policy. of the to make the best The Legislature may encourage bargaining, peaceful collective but bargaining disputes mandatory resolution of collective is not a principle. efficacy binding constitutional The of arbitration as a resolving bargaining disputes method of collective does not depend procedure, system on the last-offer and the last-offer yields unconstitutionally arbitrary results which are because it apt impose costly arbitrary penalty party is to a on the who, although faith, proceeding good nearly did not more satisfy statutory criteria. The chairman of the in this might case indicated that he have made an economic award substantially costly city required less to the had he not been to parties. Legislature select the last best offer of one of the constitutionally provide arbitrary cannot for so a solution and penalty. process selecting 10. The 1976 amendments to the of provided significant any political chairman have not measure of accountability process. persons in the arbitral While the set of eligible may theory to become chairman have been narrowed and the likelihood that some arbitrators will be chairmen of a increased, panels correspondingly number of has been it re- impossible assign meaningful responsibility any mains to to Mich authority a chairman the manner in which official or for power. delegated to be selected Arbitrators continue exercises basis, case-by-case of on a the terms contracts to determine long only are as the dis- decision-makers as their tenures as entirely by agreement putes It is unresolved or award. remain conjectural method selection motivates new of whether so to their themselves enhance arbitrators to conduct employment if in such arbitrations. Even of continued chances sensitivity of his decisions chairman’s effect consequences personal heightened by his awareness him, against non-uniformity provides safeguard of no political responsiveness. policy The connection of lack panels of the arbitration and the Gover- between chairmen any political provide measure nor is too attenuated Legislature accountability the arbitrators’ decisions. The for system undoubtedly prerogative creating within its composed grievance group largely persons to a allocates public policy experience power con- resolve public employment, cerning but the the terms and conditions may persons the state not be chosen to make those decisions for political process. from the isolated that, the intention of the 11. It is contended because was proce- 1961 to the choice Convention of leave Constitutional disputes concerning resolving public employees to dures Legislatures, not the Court is the future delegation body power appropriate to determine whether the representative appropriate authority in a is an allocation democracy. power Legis- to determine whether acts comport principles is lature with constitutional confided *11 delegates judicial Even if the to the 1961 Constitutional branch. compulsory specifically intended to authorize inter- Convention arbitration, they there is indication that intended to est no permit any particular approve or to method of arbitration regard adoption of without to other constitu- such measures precepts. the Civil Service tional The entire framework of Commission, contrasting example, for a is constitutional be- moreover, Constitution; it is certain cause embodied provisions of charter the Civil Service its constitutional endow political accountability and Commission with a measure of legislative subject policy-making powers its review. limited for case The constitutional authorization the statute this permits Legislature providing simply enact for the laws except disputes concerning public employees those resolution Finally, in state civil service. the 1978 amendment Michigan authorizing bargaining for Constitution collective v binding "the same as officers and arbitration now State Police by police departments” provided law for and fire does by statutory to a not amount ratification constitution binding only It Police. arbitration scheme. concerns the State binding repeal modify free to or remains police departments, local and its statute for fire regard constitutionality be decided to the consti- must without tutional amendment. properly approved in this 12. The award case cannot be deciding city’s appeal without the merits of the in the Detroit Sergeants Lieutenants and Association case. The chair- Police the arbitrators in this case declared that man of cost-of- living allowance in the award rendered another Sergeants issue in Lieutenants and case is central this dispute. emphasized acceptance He of the DPOA cost-of- living-allowance virtually offer was mandated the award of provision Sergeants an identical in the Lieutenants and arbi- appeal depend part tration. The merits of this thus on the city’s appeal Sergeants merits of the in the Lieutenants and appeal finally case and cannot decided before therefore city’s application appeal. for leave to decision of the Decision of the Court Depart- — — 1. Labor Arbitration Police Fire Relations Municipal Corporations — — ments Constitutional Law. provides disputes compulsory The statute which for arbitration of concerning police departments, contract formation in and fire delegation legislative as amended in is a constitutional (MCL power seq.; seq.). 423.231 et MSA et 17.455[31] Opinion Williams, Depart- — — 2. Labor Relations Arbitration Police and Fire Municipal Corporations — — ments Law. Constitutional provides compulsory disputes The statute which arbitration of concerning police departments, contract ñre formation in delegation legislative as amended in is a constitutional power provides guidance because it standards for of the arbitra- requires reasonably precise subject tors as matter or as the and, matter, permits practical statutory as a scheme exhib- adequate political public accountability of the arbitrators (MCL seq.; seq.). 423.231 et MSA et 17.455[31] Delegation — — 3. Administrative Law Law Constitutional Powers. Legislature may lawmaking powers; how- not abdicate its *12 408 Mich ever, may delegated power body or official subordinate apply statutory pre- provided that the standards laws guidance body power scribed for or official to which the delegated reasonably precise subject as the matter are as requires permits. or Depart- — — 4. Labor Relations Arbitration Police Fire and Municipal Corporations Policy. — — ments Public Interruptions by police departments of work and lire were Legislature pose public deemed a threat to the state’s health, welfare; safety appointment by Employ- and permanent panel ment Relations Commission from its of arbi- chairpersons panels arbitrating disputes trators of the con- cerning police departments contract formation in and ffre policy, serves to effectuate the state’s labor as established Legislature, although disputes primarily such are local in (MCL settings seq.; seq.). their 423.231 et MSA et 17.4BB[31] Depart- — — 5. Labor Relations Police Fire Arbitration op — — Delegation — ments Statutes Administrative Law Powers. legislative objectives The inherent tensions between the of afford- ing independence deciding complex arbitrators sufficient in disputes concerning police contract formation in and lire de- partments maintaining accountability the arbitrators’ adequately Legislature have been balanced ("factors”) statutory provision view of the of standards to be award, making extremely public considered in atmos- phere statutory operates, in which the and the provision judicial review; statutory for standards check the authority provide unfettered exercise of the arbitrators’ guides them with for their consideration which the significant resolving deemed to be those issues which have negotiated sharpened by parties, yet been remain (MCL seq.; seq.). unresolved 423.231 et MSA et 17.4B5[31] Depart- — — 6. Labor Relations Arbitration Police and Fire Appeal. —ments providing compulsory disputes The statute arbitration of concerning police departments contract formation and fire reviewing provides a court with a license neither to consider subject the wisdom of an arbitration award nor to it to de novo review; rather, specifically scope the statute confines the exceeding jurisdiction, compe- unsupported by review to awards tent, record, material and substantial evidence on the whole v *13 (Const 28; procured by § unlawful means art MCL 423.242; 17.455[42]). MSA Depart- — — Police 7. Labor Relations Fire Arbitration and Appeal. —ments issue, panel any of an eco- award arbitration whether The non-eeonomic, disputes concerning forma- or in contract nomic police departments tion in fire must emanate from a statutory they eight specific "factors” as consideration issue, applicable to the factors must be are established by competent, substantial evidence on the material and whole (MCL seq.). seq.; MSA et record 423.231 et 17.455[31] Depart- — — Police Fire 8. Labor Relations Arbitration ' Appeal. —ments evinced no intention that each "factor” in has compulsory disputes providing the statute for police concerning departments in contract formation and fire equal weight; it is the arbitration that must accorded particular important resolving are more in decide which factors the fact that the arbitrators a certain contested issue and have argument persuaded by party’s evidence and as to not been they give that failed to each certain issues does not mean have separate eight statutory consideration re- factors (MCL seq.). seq.; quired et law 423.231 et MSA 17.455[31] Depart- — — Police 9. Labor Relations Fire Arbitration Appeal. — ments providing of an under the for Review arbitration award statute disputes concerning compulsory contract forma- arbitration of police departments in must be undertaken tion and fire sensitivity in order to accord due courts with considerable expertise displace and not to their deference arbitrators’ (Const 1963, differing reasonably views art choice between two 6, 28; seq.; seq.). MCL 423.231 et MSA et 17.455[31] Depart- — — 10. Labor Relations Arbitration Police and Fire Municipal Corporations — — — ments Economic Issues Taxation. in a contract-forma- An arbitration award on the economic issues Department accepted dispute tion the Detroit Police which existing cost-of-living police allowance offer of the officers’ wages agreement conjunction over with a lower increase years higher wage three than a increase but the next rather complies city cost-of-living by the reduced allowance offered established, compe- applicable where it is statute Mich tent, record, material and substantial on the whole evidence the arbitrators considered certain circumstances to be greater importance budget city’s than the fact that the atwas (MCL legal taxing power seq.; of its limit 423.231 et MSA seq.). et 17.455[31] Admissibility — — — 11. Arbitration Evidence Labor Relations Appeal. — Departments — Police and Fire compulsory provides disputes statute which arbitration of concerning police departments contract formation in and fire explicitly accords wide discretion to arbitrators in decid- ing evidentiary questions; "may” the arbitration receive testimony, any into evidence document other data relevant, deems and review of the arbitrators’ discretion is generally evidentiary limited whether the decision caused unsupported by compe- the award on the contested issues to be tent, material and substantial on the evidence whole record *14 (Const 1963, 6, 28; seq.; art MCL 423.231 et MSA et 17.455[31] seq.). Depart- — — 12. Labor Relations Arbitration and Fire Police Residency — Requirement. ments considering requirement by Arbitrators the issue of a contractual City police city of Detroit that officers reside in the reversibly failing compare erred employ- this condition of residency requirements private ment with for other employees services; performing similar the omission parties statutory comparison evidence "factor” of (MCL does not excuse the arbitrators’ to it inattention 423.231 seq.; seq.). et MSA et 17.455[31] — Depart- — 13. Labor Relations Arbitration and Fire Police Residency — Requirement. ments reviewing A court cannot amend an arbitration award in a dispute City contract-formation between the Detroit and its police requirement police a officers over that the officers reside city language city to include the aof new ordinance defining the term "residence” where the arbitrators did not specific findings make of fact and an award on the issue under applicable statute; may the courts not act as de novo parties arbitrators in the matter but the should resolve it bargaining collective (MCL and further arbitration under the statute seq.; seq.). 423.231 et MSA et 17.455[31] — — — 14. Arbitration Labor Relations Issues Economic Interest on Award. portion Interest on the economic in a an arbitration award dispute department police may contract-formation of a not be v (MCL granted, statutory provision because there is no 19.4). 438.7; seq., seq., 423.231 MSA et et 17.455[31] Concurring Opinion Moody, Jr., J. Blair Depart- — — 15. Labor Relations Fire Arbitration Police and Appeal — — Last Best Offer. ments statu- Requiring awards without the of economic redetermination dispute tory of a restriction in an arbitration last-best-offer police departments, concerning and ñre contract formation the contest changing post rules ex facto would parties again requiring what to debate it would be because standards in accordance with reasonable has been resolved (MCL seq.). seq.; et 423.231et MSA 17.455[31] Depart- — — 16. Labor Relations Fire Arbitration Police and Purpose. Statutory — — Last Best Offer ments promotion private disputes concerning settlements of police departments by penalizing contract formation in and ñre try enough hard to settle them is a sound those who did not adoption statutory rationale for the last-best-offer limitation (MCL making the in such cases on arbitrators economic award seq.; seq.). 423.231 et MSA et 17.455[31] — — Police Power. 17. Constitutional Due Process Law constitutionality of a statute enacted The test to determine Clause, power, pursuant police the Due Process under to the permis- legislation relation to bears reasonable whether (US Const, XIV; legislative objective art Am Const sible §17). — Equal Protection. 18. Law Constitutional constitutionality enacted of a statute The test to determine Equal power, police Protection pursuant under Clause, legislative if must be sustained classiñcation is that (US legitimate government *15 rationally interest to a it is related 1, Const, XTV; 1963, §2). Am Const art Separation — — — 19. Statutes Courts Law Constitutional Powers. whim, power, upon judicial Supreme Court does not have legislation arbitrarily is unconstitu- to tional; declare that certain . whether the Court to decide it is not the role of enacting unwisely Legislature wisely social acted social and eco- legislation, its own or to substitute economic (Const 1963, 3, Legislature art for those of the nomic beliefs §2). 408 Mich
Opinion Concurring by Fitzgerald, J. in Result See headnotes 7-14. — Depart- —
20. Labor Relations Police Fire Arbitration — — Delegation — ments Statutes Administrative Law Powers. constitutionally required "accountability” There is in the statute provides compulsory disputes which for arbitration of concern- ing police departments contract formation ñre in that speciñcally provides any the statute award must be based upon legislatively criteria, prescribed certain and thus the premised is not free to issue an award on the panel’s unique ought be; view of what the criteria more importantly, panel’s ñdelity application the arbitration criteria, evidentiary support award, of the and the for the will judiciary sought be examined if review of the award is (Const 1963, 6, §28; seq.; art MCL 423.231 et MSA et 17.45B[31] seq.). — — Depart- 21. Labor Relations Arbitration Police and Fire — — Delegation — ments Statutes Administrative Law Powers. degree "political accountability" of the arbitration determining not the crucial constitutionality test for provides compulsory statute which disputes for arbitration of concerning police contract departments formation in and ñre because the has enacted the mechanism for the peaceful disputes, resolution of labor and the local unit of government "management" which charged constitutes has been making dispute; its offer to settle the the arbitrators (MCL politically themselves need not also be accountable seq.; seq.). 423.231 et MSA et 17.455[31] — — — Separation 22. Constitutional Law Statutes Courts Powers. legislation Courts cannot declare to be unconstitutional because they unwise; think it simply legislation, if an act is bad electorate should responsible call to account those who were for (Const promulgation §2). art Dissenting Opinion Levin, — Depart- — 23. Labor Relations Arbitration Police and Fire — Delegation — ments Constitutional Law of Powers. provides The statute compulsory disputes arbitration of concerning police departments contract formation in and ñre delegates power prescribe unconstitutional because it *16 v (law) policy to the chairman of arbitration without power adequate safeguards circumscribing the exercise of (MCL seq.; seq.). MSA 423.231et et 17.45S[31] Depart- — — 24. Labor Relations Fire Arbitration Police and — — Constitutional ments Law Last Best Offer. issues, requirement concerning The last-best-offer economic providing compulsory added in 1976 to the was statute for disputes concerning police arbitration of contract formation departments, and £re exacerbates rather than cures the stat- that, entirely apart ute’s deñciencies so from its constitutional- (MCL otherwise, ity provision it is unconstitutional seq.; seq.). 423.231 et MSA et 17.455[31] Employees — — Relations Labor Public Constitutional Law 25. Delegation — of Powers. Implicit Legislature’s constitutionally power conferred disputes concerning public laws for enact the resolution of employees power delegate resolving authority is the 48). (Const 1963, 4, art § Delegation — — 26. Constitutional Law Administrative Law Powers. challenged delegation legislative A should court review power adequate provided to examine whether checks have been against action; arbitrary or an uncontrolled official such in- however, quiry, supplant inquiry cannot the basic whether the legislatively framework devised for official action—considered application preserves legislative responsibility in its for the- — (Const 1). public policy determination art § Depart- — — 27. Labor Relations Arbitration Police and Fire — Delegation — ments Constitutional Law of Powers. provides compulsory disputes The statute which concerning departments police contract formation in and ñre delegation concerning violates the constitutional doctrines power legislative decision-making because it insulates the process accountability political and the results from within the process; dispersed policy-making power it is novel in that the among arbitrators, preventing emergence ad hoc of visible intelligible therefore, principles policies, and coherent safeguards generally regarded adequate which are in a delegation lawmaking power accountability do not assure (Const 1963, 4, 48; seq.; this context art MCL 423.231 et MSA seq.). et 17.455[31] 408 Mich Delegation — — Law Law Administrative 28. Constitutional Powers. *17 policy legislative power public which delegation to decide of the A is govern particular and of law case have the effect a will only generally full-time officers or administra- made to provides development for of agencies; a structure tive responsive politically policy manner with a uniform and in safeguards continuing implicit in centralization and exercise 1). (Const 1963, 4, power policy-making art § Delegation — 29. Constitutional Powers. Law democracy those who a for is not consonant with constitutional It apply policies powers government in different exercise situations; uniformity governmental the lack of the same policy-making dispersal process is invited which power in an evil. itself Depart- — — 30. Labor Relations Fire Arbitration Police and Legislation. — — Law Local ments Constitutional decision-making hoc principled inherent in ad The absence provides compulsory for arbitra- of the statute which structure police concerning ffre disputes in contract formation tion of accomplish indirectly Legislature departments permits the are, directly: in the creation what it cannot do which (Const 1963, 4, 29; effect, 423.231 practical art MCL § local laws seq.; seqj. et et MSA 17.455[31] Depart- — — Fire Arbitration Police and 31. Labor Relations — — Administrative Law. Law ments Constitutional procedure resolving Legislature may adopt mandatory for a police departments disputes bargaining in and ffre collective governmental authority or be in a officer should vested but through continuing responsibility agency to the electorate (Const power authority appointing exercise of 1963, 4, §48). art Depart- — — Fire Labor Arbitration Police and 32. Relations Delegation — — of Powers. Law ments Constitutional Legislature guides provided by the as for decision- The "factors” bargaining resolving making by arbitrators in collective „ adequately departments disputes police do not in lire lawmaking power, delegation protect against excessive power; discretionary unnecessary most uncontrolled issues, cases, particularly arbitration of economic in last-offer any justified by or more of can one reasonable decision criteria, statutory direction the arbitrators little offers v they they to what should consider or how should reach a decision, and still less assurance the electorate that arbitra- through consistent, principled, tion awards will be fashioned a (MCL process seq.; or fathomable 423.231 et et MSA 17.455[31] seq.). Depart- — — 33. Labor Relations Arbitration Police and Fire — — ments Law Last Best Constitutional Offer. system The last-best-offer for arbitration of economic issues con- cerning police departments contract formation in and lire yields unconstitutionally arbitrary results which are because it apt impose costly arbitrary penalty party on the who, although faith, proceeding good nearly did not more satisfy statutory criteria; cannot constitu- tionally provide arbitrary penalty for so a solution and (Const resolving bargaining dispute collective art 48; seq.; seq.). MCL et 423.231 MSA et 17.455[31] Depart- — — 34. Labor Relations Arbitration Police and Fire — Delegation — ments Constitutional Law of Powers. *18 panels The connection between the chairmen Of the arbitration disputes concerning police for contract formation in and lire departments provide any and the Governor is too attenuated to political accountability measure of for the arbitrators’ deci- sions; Legislature undoubtedly prerogative within its creating system group composed largely which allocates to a persons grievance experience power arbitration to public policy concerning resolve the terms and conditions of public employment, persons but chosen to make those may political decisions for the state not be isolated from the (MCL process seq.; seq.). 423.231 et MSA et 17.455[31] Depart- — — 35. Labor Relations Arbitration Police and Fire . —ments Constitutional Law. concerning The constitutional authorization for the statute arbi- disputes concerning police tration of contract formation departments simply permits Legislature ñre enact laws providing disputes concerning public for the resolution of em- ployees except service; delegates those in state civil even if speciñcally 1961 Constitutional Convention intended to arbitration, compulsory authorize interest there is no indica- they approve any particular tion that intended to method of permit adoption arbitration or to such measures without regard (Const 1963, precepts 4, 48; to other art § constitutional seq.; seq.). MCL 423.231 et MSA et 17.455[31] 408 Mich Opinion Williams, J. Depart- — — Police and Fire Labor Arbitration 36. Relations — — Police Law. ments State Constitutional authorizing collective Constitution amendment binding Michigan arbi-' bargaining Police officers and for State provided by public police and for as now law tration "the same departments” constitu- to a ratification fire does not amount binding statutory arbitration scheme because tion Police; Legislature only free the State remains concerns police modify repeal binding statute for local arbitration constitutionality departments, that statute fire regard amend- to the constitutional must be decided without (Const 5; seq., 4, 11, 1963, 48; MCL 423.231 et § § ment art art seq.). seq., seq.; et MSA et 17.455[81] 423.271 et 17.455[31] Matish, Acting Corporation Counsel George G. M. Fieger, Saxton Bernard J. William (by Hurvitz, Special A. Michael Corporation Assistants Counsel), plaintiff. for & Moore for defen- Lopik, Korney
Gregory; Van Association. dant Detroit Police Officers Sachs, Kates, & Marston, Nunn, Kadushin Fire intervening defendant Detroit O’Hare Fighters Association. affirmance). (for In the Michi-
Williams, PA act enacted an gan interest compulsory for the provide disputes. municipal department and fire police 17.455(31) seq. seq.; MCL 423.231 et et MSA 1: is described purpose and intent the act *19 public policy state that public "It is of this right employ- departments, police and fire where requisite by prohibited, to strike ees law opera- high morale and the efficient employees of such alternate, expedi- departments of such an tion to afford tious, binding for resolution procedure and effective act, disputes, provisions of this and to that end the v Opinion Williams, providing compulsory arbitration, for shall be liberally 17.455(31). 423.231; construed.” MCL MSA (1) case
This involves two major issues: whether 312, amended, 1969 PA includes an unconstitu- tional delegation "legislative political re- sponsibility politically unaccountable arbitra- tors”, to use the words of the plaintiff City of (2) Detroit; panel’s whether arbitration award was supported by "competent, material and substantial on the evidence whole record” as re- 312, quired by 423.242; Act MCL MSA 17.455(42), as well as Const art 28.§ first issue has been inconclusively consid- ered four Justices of this equally-divided Court Dearborn, Fighters Dearborn Fire v 394 Mich (1975), 229; 231 pre-amendment NW2d where Act 312 was All four assessed. Justices found that there existed guide sufficient standards delegated exercise authority. Beyond this con- sensus, however, one Justice would hold the pre- amendment act constitutional on the facts with relation to accountability impar- where the tial chairperson panel ap- was pointed by Michigan Employment Relations ("MERC”) Commission chairperson, but indicated the act was doubtful constitutionality instance where the chairperson was alternatively delegates selected parties’ alone. Two Justices would hold the act unconstitu- tional because both the method of member selection and tenure of panel chairperson did not provide sufficient political responsibility Another accountability. Justice would hold act constitutional in all respects. to the Dearborn
Subsequent responsive opinion, Act significantly amended by providing composition an arbitra- *20 408 410 434 Mich by Opinion Williams, J. including representative party panel each a
tion
plus
chairperson
by
impartial
selected MERC
an
panel
by
permanent
MERC and
established
from a
known as
Eligi-
Panel of Arbitrators.1
the MERC
this
panel
permanent
bility
impartial, competent
to
is restricted
for
reputable
States
and
United
Michigan.
citizens,
Mem-
who must be residents
panel
an oath or affir-
bers of the
must subscribe
panelists is
The term of these
mation
office.
1
by
originally
Levin,
Justices
As
in 1969 and considered
enacted
and
in the 1975 Dearborn
Kavanagh,
T. G.
Williams
Coleman
following
opinion,
provided
the
§
the
5 mechanism for
delegation, accompanied by otherwise sufficient standards, to such an provided arbitration as 312, amended, in Act is constitutional. question second issue raises the whether
arbitration panel’s award as to the economic issue ("COLA”) of cost living of allowance wages and and as to the non-economic issue of a residency hardship was exemption supported by competent, material and substantial evidence on the whole issue, record. More specifically, as to the economic must we answer question threshold whether last best offer of elimination city’s of the existing already police officers’ cost of living pro- gram plus wage increases over a three-year period 4.8%, of and nearly complied more 4% 4% applicable legislative than standards did the defendant Detroit Police Officers Association’s ("DPOA”) of continuation offer last best already existing living program cost and the lower 4.5%, wage somewhat increases 4% period. over a three-year As to the non-eco- 3.5% nomic award of a residency hardship exemption, we must determine question threshold whether that award was applicable based legislative standards. Dearborn decision,
Since
similar
schemes
been
in many jurisdictions,2 upheld
have
enacted
decision,
jurisdictions
At
time
the 1975 Dearborn
had
schemes, Dearborn,
298,
supra,
enacted similar interest
9
fn
J.);
Williams,
(opinion
repealed
none
of these acts
been
have
although
Today,
jurisdictions
been
some have
amended.
at least
408 Mich Opinion Williams,
overwhelming weight
as constitutional
impri-
many with
authority,3
stamped by
averting
critical-service
matur
success
ample judicial
schol-
strikes.4 Guided
binding
legislation providing
including Michigan
enacted
for
have
employees,
specifically
police
interest arbitration for
fire
legisla-
fighters.
jurisdictions
have enacted similar
Those
Ann,
7-472
tion
Dearborn decision include: Conn Gen Stat
§§
since the
Ann,
20.22;
10-153Í;
Stat,
89-11;
seq.,
Code
§
Hawaii Rev
Iowa
§
et
Ann,
seq.;
Laws,
150E, 9; Mont Code
39-34-101 et
§§
Mass Ann
ch
Ann,
(McKinney),
seq.;
Law
34:13A-16 et
NY Civil Service
NJ Stat
§§
Ann,
Stat,
205, 209;
41.56.100, 41.56.125,
seq.;
243.742 et
Wash Rev Code
§§
Or Rev
§§
§§
seq.
et
41.56.430
Arbitration,
Grodin,
Aspects of Public Sector Interest
See
Political
(1976). See,
Newman,
678,
e.g.,
L
678-683
Interest Arbitra-
64 Cal Rev
tion —Practice and
Procedures,
ed,
Knapp,
Labor Relations Law
ABA, 1977),
(Chicago:
pp 54-61.
the Public Sector
3See,
19;
404;
e.g.,
Helsby, 37
371 NYS2d
332
370
Amsterdam v
NY2d
Arbitration,
(1975); Arlington
&
NE2d 290
Mass
v Board Conciliation
Ass’n,
(1976);
769;
Biddeford v Biddeford Teachers
I. Facts DPOA, and the city bargaining certified firefighters causing hardship real to communities where there are procedures orderly resolving disputes. no in Ky.; contract These occurred Cleveland, Toledo, Dayton, Ohio; Orleans, Louisville, La.; New Anderson, Ind.; Wichita, Employee Kan.” Government Rela- Report (Washington, BNA, 13, 1979), August tions DC: 823:54. generally Anderson, See O’Reilly,Impasse MacDonald & Resolution in sory Bargaining Public Sector Compul- Collective Examination of —An York, Interest Arbitration in (1977); New 51 St John’s L Rev 453 Benjamin, (Institute Michigan, Final Offer Arbitration Awards in 1973-1977 Relations, University Labor and Michigan Industrial & Wayne University, 1978); Howlett, State Negotiation Contract Arbi- Sector, 47, tration in (1973); the Public 42 Cincinnati L Rev 63-65 Kaye, Impasse Mich Strikes, Resolution Mechanisms and Teacher 7 U of (1974), Dearborn, J of L Reform supra, cited in fn 2 (opinion Williams, J.); Rehmus, Legislated Arbitration, Interest Proceedings Meeting of the 27th Annual Winter of the Industrial (December 28-29, 1974), Relations pp 307, Research Association 308- 309. ruling In addition to opinion our does not on the focal issue of this that Act amended, unconstitutionally delegate "legislative political responsibility politically arbitrators”, unaccountable we also hold that impermissibly usurp the act does constitutionally powers vested unconstitutionally home rule deny and does not right municipal to cast effective ballots in elections. These claims of *23 city summarily rejected 14, 15, infra, the are accompany in fns and ing text for unanimously the reasons that the home rule issue was disapproved equal protection of argument in Dearborn and the without merit. 408 410 Mich Opinion Williams, Detroit, reached an of the officers of agent police and condi- in of the terms 1977 on several impasse for a new con- bargaining tions of employment DPOA, Thereafter, upon of the the tract. MERC demand appointed panel pursuant an arbitration ("act” 312”); 312, 1969 PA or "Act the as amended remaining parties unsettled between the issues panel binding to that arbitra- were submitted 15 hearings panel, tion. After some before this conducted over plus arguments by parties, oral months, issued its period eight 20, award December 1978. essence, panel majority6 accepted
In disputed "last as to all city’s offer of settlement”7 except wage propos- its economic issues COLA items, offers —a als.8 On these two the DPOA’s last ar- parties’ COLA preservation previous wage a lower increase rangement three-year that proposed by city adopted by than the —were issues, most panel.9 As to non-economic settled, par- remanded to the were withdrawn panel’s delegate issues concurred in the decision on all The DPOA rejection plan, except delegate expressly panel’s the DPOA’s which the DPOA dental delegate city from the dissented. dissented COLA, hardship opinion wages, and the on the issues requirement. residency exemption from the act, 17.455(38), panel 423.238; provided MSA 8 of the MCL As in § 127, required significantly 1972 PA has been to amended which, adopt opinion "the last offer of settlement panel, nearly complies applicable with the factors arbitration prescribed more 423.239; 17.455(39)]”. fn MSA See section [MCL III, B, developed infra, accompanying text. As in Part will infra, requirement significantly at the differs from effective time of the decision 1975. Dearborn charged As to the issue of how much sick time would be economic illness, employee to finish her shift because of to an unable his or although present last offer a continuation of the DPOA’s panel, practice mended that the accepted by panel additionally recom was system computerized hour-by-hour parties effect computation. comparison three-year Reproduced costs of the below is a city This DPOA comparison December offers on an individual benefit basis. last best opinion was dated included in the of the arbitration 1978: *24 v DPOA 439 Opinion by Williams, J. ties.10 of One the remanded involved issues the prior provision city police contractual all officers be residents of the of Detroit. The City city had provision parties’ previous won this the City Cost of DPOA Cost of ’’Benefit Last Best Offer Last Best Offer Wages $32,810,000 $34,711,0002 COLA 28.130.000 669,000 Shift Premium Dental Care 1.003.000 Longevity 4.280.000 Holidays 1,456,000 1.506.0001 Pension 18.027.000 1,685,000 Payoff Sick Leave $36,167,000 $88,110,000
Total Cost proposal. "!This is the direct cost of union the In addition to this city years the years would lose man of service in 1978-79 and 66 man city employees of in 1979-80. service If the hires additional $600,000 $1,900,000 cover this lost time it would cost in 1978-79 and in 1979-80. "2 wage proposal. This cost of is the the 4.8%-4.0%-4.0% The 4%- plus proposal limited $33,000,000.” 2%-2%-2%-2% COLA would cost city’s wage explanation proposals, the of two For an see fn infra. data, reviewing significant panel’s In it that the arbitration rejected premium, actual award last best DPOA’s offer on the economic care, longevity, holidays, pension issues of shift dental payoff city’s sick leave favor of the last best offer continue the items, existing policy except pay holiday to all those where the city’s additional holiday pay offer to raise from an additional to an 150% daily pay accepted. was 200% finally panel Some non-economic issues were resolved disputed furlough allocation, panel itself. On the issue of awarded city’s requested limiting police language contract the number given precinct, furlough officers in a or unit be on section who could police at the same time the total number of officers. 10% DPOA, hand, language on the other won contract on the issue police explicitly provided city reserves that the could not use police bargaining reserves to do the normal unit work members or agree- holiday, provisions to circumvent the overtime or other proposed ment. The was DPOA also awarded continuation previous language. provision, contract’s sick leave Under this an permission officer could from while sick be absent home without superior of a officer. Mich Opinion Williams, Act through the award of another contract (Platt panel) September issued present upheld city’s 1977. Although main- provision position residency tained, provision for the that some ruled be made exercise reasonable should either or a official city discretion by mayor designated exempt persons with mayor *25 hardship panel Accordingly, circumstances. the parties remanded the this narrow issue with instruction should unable to resolve they 30 days the matter themselves within of the issu- award, the would do so. ance the the of this Shortly after issuance arbitration award, matter panel’s December in our complicated procedural its course began 9, 1979, January city On the filed suit courts. Wayne seeking judi- for County the circuit court Ini- panel’s the arbitration award. cial review of the limited sought the review of award tially, city COLA, portions wages those which dealt with Thereafter, residency hardship exemption. and the city complaints, the the first of amended filed two raising first the of Act 312’s constitu- the one issue Meanwhile, both the DPOA and tionality. ("DFFA”), Fighters Detroit Fire Association which stipulation of the by had been allowed to intervene parties, seeking filed enforcement counterclaims 20, 1978 award panel’s December of interest on economic awards from payment time of their issuance. stay The circuit court declined to either initially order proceeding requested city as by compliance immediate arbitration city requested by award the DPOA and both however, 13, 1979, DFFA. On the circuit February lite or- opinion pendente an court issued v Opinion Williams, dered enforcement of the panel’s award its pending entirety that court’s complete review the panel’s decision and order. given The reasons the trial court in its interlocutory opinion ordering enforcement panel’s award were threefold: "(1) public policy underlying expressed encourages
Act 312 immediate enforcement under case; circumstances present in this "(2) city likely prevail proceed- is not ings judicial review court had earlier stated [the supported the order seemed to be competent, material and substantial evidence on the record]; whole "(3) The DFFA Fighters DPOA and Fire [Detroit stronger showing make a somewhat than Association] the injury.” irreparable city the issue of or disproportionate In an opinion, addendum to its also dated Febru- 13, 1979, ary the trial court found no reason to alter despite order enforcement city’s first complaint amended challenging the act’s con- reasoned, alia, stitutionality. The trial court inter *26 that: every statute enacted the presumed constitutional; presumed the constitu- tionality of Act 312 was left unaltered our equally divided decision Dearborn Fire Fighters Dearborn, v supra, which affirmed the Court of Appeals ruling and, the constitutionality; weight of national authority favored constitu- tionality of arbitration statutes compulsory pub- disputes. lic labor
The city appealed the trial court’s interlocutory order 26, the Court of Appeals. On February 1979, that applied Court erroneous” "clearly uphold standard to the trial court’s order of imme- diate enforcement. ruling applicable was made Mich Opinion Williams, 1, 197911 commencing period January
to the trial completion until either continuing of the Court or until further order court’s review commencing period toAs the award Appeals. (the 1, previous on which date July had city contract between 31, 1978, Court ending expired) December of the arbitration Appeals enforcement stayed court should enter final until the trial award 5, 1979, the city’s we denied judgment. July On appeal for from leave emergency application this decision.
Thereafter, to the DPOA’s and acting pursuant seeking of the city’s motions dismissal DFFA’s enforcement, the trial and an order complaint 6, 1979, court, residency remanded the April the arbitration exemption issue to hardship This was done because for award. completion agreement on this failed to reach parties had In panel’s remand order. pursuant to the issue remand, court to the trial response opinion May and award on supplemental issued the DPOA’s mini- 21, granted 1979. This award hardship to the resi- exemption of a request mum panel’s contemplated dency requirement 20, opinion. That award original December however, with an additional supplemented, was , including final and grievance procedure provision, arbitration, denial grant contest binding delegate city’s exemption. of such an this grievance to the inclusion of panel dissented filed second city while the itself procedure, complaint provision, on this same amended based was invalid. supplemental award claiming though December award was announced on Even the arbitration accounting there purposes to facilitate of its order and under, Appeals the arbitration award was assumed Court January 1, 1979. announced *27 v Opinion Williams, J. 1979, 29, On June the DPOA and DFFA again sought complaint dismiss the city’s However, enforce the arbitration panel’s award. again circuit court denied these motions and sponte sua hardship exemption remanded the is- panel findings sue for relating May its 1979 supplemental award to the applicable factors of Act In opinion 312. its on remand dated § 8, 1979, August supplemental found its award on the hardship exemption residency have met the applicable factors. The also grievance concluded that the use of provision a terminal in the resolution of individual hardship proper. cases was
In response opinion to the arbitration panel’s on issue, remand of residency DPOA and the again DFFA filed for motions enforcement panel’s Accordingly, August 31, 1979, award. the circuit court final enforcing issued a order panel’s entirety holding award the city’s complaints so, to be In doing without merit. court relied on reasoning found in its trial pendente lite opinion 1979. In February final order the trial court also denied the DPOA’s thereafter, for prayer DFFA’s interest. Shortly city filed a motion a stay proceedings with the Court Appeals conjunction with its appeal the trial court’s order the mo- granting tion for enforcement of the entire award. cross-appealed DPOA and DFFA on the trial ruling court’s which denied interest. 5, 1979,
aBy 2-to-l order dated October Appeals Court of denied the motion for a city’s stay proceedings and ordered the award en- forced in its entirety. July This order included the 1, 1977 to 31, 1978 period December retroactive which the Court Appeals exempted earlier had *28 408 410 Mich by Opinion Williams, J. trial order of the court’s
from enforcement decision; have judge one would con- pendente lite period. as to the retroactive stay tinued the its decision on belief Appeals based Court (1) likely prevail to city that: was (2) hardships favored imme- balancing appeal; (3) as enforcement; the act had its stated and diate "alternate, expeditious, an policy provision binding for the resolution procedure effective construed, and to be was disputes”, liberally was statutorily scope judicial limited subject to review. 8, 1979, granted Court
On November
appeal prior
for leave to
application
city’s delayed
decision on the merits. We
Appeals
a Court
enforcement,
motion to
granted
city’s
stay
also
award restricted
appeal,
pending
1,
July
period beginning
the retroactive
31, 1978.
II. Issues
granting
appeal simply
leave to
Since our order
among
"to include
the issues
requested
parties
PA 312 is constitu-
be briefed whether
tional”,
(1979),
framed the
(1) 312, amended, consti- Whether 1969 PA as delegation of authority?12 tutes an invalid violates following terms: "1969 PA This issue the United States Constitution and the Constitution 312, has insofar been more as it specially provides framed compulsory arbitration, city v Opinion by Williams, (2) imper- amended, Whether 1969 PA as usurps missibly constitutionally vested home rule powers?
(3) amended, Whether PA unconsti- tutionally right denies the to cast effective ballots municipal elections? panel’s unsup- Whether instant award
(4)
ported
competent,
material and substantial
evidence on the whole record?13
Michigan by improperly delegating legislative
political
State of
responsibility
politically
unaccountable arbitrators.”
perceive
city’s
incorporating
questions:
We
issue as
two distinct
*29
(1)whether
312,
amended,
Michigan delega-
Act
as
violative of
the
general
by
tion doctrine in
as framed
the
test”
"standards
of Osius v
(2)
Shores,
693, 698;
(1956);
St Clair
344 Mich
446 by Opinion Williams, (5) permitted interest should Whether award? panel’s below, we resolve all five
For the reasons offered re 4 except part issue negative issues hardship exemption, panel’s residency definitively ad- Because issue 2 was we remand. par- Dearborn all four rejected dressed and Justices, the home will not consider ticipating we 3 is without argument rule further.14 Because issue other universally rejected by merit and has been challenge considering equal protection this courts schemes, will binding arbitration we to similar argument further.15 likewise not consider III. PA 312 1969 312, amended, be of of Act survey A brief will * understanding rulings. our assistance 14 compulsory city the Act 312 contends that powers unconstitutionally of their divests home-rule cities scheme granted by rejected plicitly 1963, 7, 34. This contention was §§ Const art Kavanagh, Levin, and Coleman and im T. G. Justices Dearborn, opinion. Dearborn in the 1975 Justice Williams Levin, J.), Kavanagh, (opinion (opinion T. G. supra, 243-246 J.). Coleman, Levin, J.), (opinion follows that set C.J., concurring 281-283 substantially forth in city’s Since the contention argument Dearborn, See rule further. will not consider home we 19, 404; 26-27; NE2d Helsby, 37 NY2d NYS2d Amsterdam v Arbitration, (1975);Arlington & of Conciliation 292-293 v Board (1976). 769, 773-774;352 Mass NE2d *30 15 312, alleged of city because the here contends that Act persons, delegation equal authority politically violates insensitive right protection city by depriving the cast constituents of city’s argument is a non in local elections. The effective ballots "one-man, principle sequitur; equal protection here one-vote” substantially legislative guarantees that districts embrace invoked preclude equal of the vote. in debasement numbers citizens order (1962). 691; Carr, 186; 7 Ed 2d 663 82 S Ct L Baker v 369 US binding Moreover, against arguments other to that made here similar lacking rejected merit in been as arbitration schemes have likewise those three considering expressly claim. Amsterdam jurisdictions 290, (1975); 19, 28; 404; Helsby, 293 332 NE2d NY2d 371 NYS2d v 37 769, Arbitration, Arlington 777- 190- & 370 Mass v Board of Conciliation 183, 914, (1976); Russo, 778; Harney 435 Pa 920-921 v NE2d (1969). 560, 192; 255 A2d 563-564 v Opinion Williams, Background 312, A. The Constitutional of 1969 PA as Amended 1963, 4, art replaced
Constitution the for- § 1908, 16, provision mer of Const art 7 for "courts § of conciliation”. The contemporary provision reads as follows: legislature
"The may providing enact laws for the disputes concerning resolution of public employees, ex- cept those in the state classified civil service.” 4,
The convention’s committee comment to art 48 stated the article’s in purpose following § terms:
"The purpose of this section is to make it clear that legislature power procedures has to establish settling disputes public employment. This section procedure be, not say does what should but leaves up legislatures.” that decision to future Rec- Official ord, 1961, Constitutional p Convention 2337.16 16, provided legislature may Const art § "The estab powers lish courts of conciliation with such duties as shall be prescribed Delegates by law”. to the Constitutional Convention of ineffectual, provision stating: 1961 criticized this * * * agencies, "Mr. Hoxie: I First would like to state neither cities, anyone hiring public employees, nor labor subscribe to the * * * theory way settling disputes. They courts have though provisions never been used even of the constitution so provided, labor did not employers public employees organized because as well as particular provision. want resort to that * * * Murphy: legislatures right "Mr. Since 1850 the have had the many long to hearings committee establish courts of conciliation. After hours of legislative powers, and debate within the committee on properly recognized importance giving legisla- flexibility up necessary appropriate ture it needs to set machinery freezing legal problems public employment to solve without particular agency might into the constitution a Record, outmoded before we finish this constitution.” 2 Official Consti- 1961, p tutional Convention 2340. Responsive criticisms, provision repealed to these the Const 1908 was replaced 4, 48, significant departure Const art from *31 408 Mich Opinion Williams, J. therefore, 4, Constitution, art Unlike the 1908 § type legislation did not specify posited Legis- authorized but wide discretion lature to establish those means and methods most effective for the accomplishment of the article’s objective.
A legislative
to the 1908
response
organic grant
authority
was the 1947 enactment
public
("PERA”),
employment
relations act
MCL 423.201
17.455(1)
seq.;
seq.
et
MSA
et
later,
Twenty-two
years
enacted
312,
1969 PA
a statutory
provide
scheme to
for the
interest
compulsory
disputes
arbitration
of labor
in municipal
police and fire departments, MCL
17.455(31)
423.231 et seq.;
seq.
MSA
et
Legisla-
purpose
ture stated the act’s
as follows:
public policy
"It
is the
of this state that
police
ees to
departments,
right
employ-
fire
where the
prohibited,
requisite
strike is
law
it is
to the
opera-
high
such employees
morale of
and the efficient
departments
alternate,
tion
tious,
expedi-
of such
to afford an
binding procedure
effective and
for the resolution
* *
17.455(31).
disputes
423.231;
*.” MCL
MSA
considering
In
the constitutional
propriety
prior
Act 312
to its critical amendments
in 197217
1976,18 then-Justice,
now-Chief Justice Cole-
prior
the
modern conditions. Official
p 2340.
call for courts of conciliation and more consistent with
Record,
1961,
Constitutional Convention
enacted,
originally
expire
As
Act 312 was scheduled to
on June
30,
17.455(45).
423.245;
MCL
MSA
This limitation was extended
repealed by
and later
There and has been no that authority discretionary grant broad em- Legislature may 4, § 48, in art bodied enact 1, accompa- supra, members. This amendment fn is discussed in nying text. Mich Opinion Williams, J. subject labor other supplementary schemes such Indeed, made this was constraints. constitutional participating four of the Justices clear each earlier supported series Dearborn19 and However, it the topic decisions.20 such constitutional constraints application responding parties differ. Before Act 312 differences, of the act as a brief sketch these analyzing will be of assistance amended viability. scheme’s constitutional 1969 PA as Amended B. at the time the Dearborn
Act read case, the amended statute substantially resembles appoint- as to mechanism except both § and the consideration ment arbitrators21 *33 following précis of offer economic issues.22 last therefore, will, present largely structure the act’s as post-amenda- the well pre-amendatory as reflect except significant in those two re- scheme tory spects. stated, principal the act has as its
As was earlier
alternate,
expedi-
provision of "an
objective
tious,
procedure
binding
effective and
reso-
19
Levin,
Dearborn,
J.),
(opinion
supra,
(opinion
244-246
of
273
of
C.J.,
Levin, J.),
Kavanagh,
concurring
(opinion
277
T. G.
Coleman, J.),
Williams, J.).
(opinion
294
20
273, 281-282;
Board,
App
19 Mich
Escanaba v Labor Mediation
(1969).
1963,
4,
art
Binding having initiated, been following pre- legislatively mechanism has been scribed for the selection of three arbitration pursuant employer First, § 4, members. employee delegate required single are each to select a represent respective their interests on panel. 423.234; three-member MCL MSA 17.455(34). clearly Next, § 5, amended, describes important chairperson/third, pub- selection panel: lic, member of the decision, part by After the Dearborn 3 was amended in minor expressly except disputes 1977 PA Act from 312 those "con- cerning (a interpretation application existing agreement of an *34 'grievance’ dispute)”. 'scope This amendment clear that of makes
Act 312 is to restricted interest arbitration alone. expressly subject While this amendment 3§ restricted the act’s matter, 2, 423.232; 17.455(32), two amendments § MCL MSA ex- panded scope emergency personnel its to include both medical service employed 203, by police department, emergency a or fire 1976 PA and telephone operators employed by police department, a or PA fire 1977 Additionally, simplified by 303. of award retroactive benefits was 303, 10, 423.240; 17.455(40), the 1977 PA amendment MCL MSA by eliminating requirement proceedings the former that arbitration prior year. be initiated to the of relevant fiscal commencement 408 Mich 410
452 by Opinion Williams, "(1) parties, days request 1 or both 7 of a from Within from shall select employment the its persons man of the arbitration selection each of 1 of the nominees. Within relations commission (2), 3 arbitrators, provided in subsection panel as of chair- impartial arbitrator or nominees for days panel. after Within name strike the party may peremptorily 5-day
7 days after this designate of the remain- shall period, the commission or chairman ing impartial as the arbitrator nominees panel. the arbitration "(2) employment shall es- relations commission arbitrators, appoint panel of who shall tablish and known as the sion members for indefinite a employment commis- Michigan relations appoint panel arbitrators. commission shall impar- terms. Members shall be tial, United competent, reputable citizens state, by qualify and shall States residents of taking constitutional oath or affir- subscribing the may any at time mation appoint and office. The commission arbitrators, panel of to the additional members existing cause.”24 may remove members without is action panel composed,
Once both time limitations express bounded instance, For procedural guidelines. hearing days commence its within
directed to
and,
agreed
impanelment
unless otherwise
within 30
hearing
days
to conclude its
parties,
17.455(36).
423.236; MSA
MCL
commencement.
Also,
agreed
unless
either otherwise
further
dispute
event
has been remanded for
limitation,
bargaining
subject
three-week
423.237a;
17.455(37a),25
MCL
MSA
has mandated
rendition
decision within
423.238;
MCL
hearing’s
conclusion.
days
1, supra,
significant
See fn
a discussion of the
amendments
wrought by
Beyond these careful time limitations and evi- dentiary guidelines, panel’s author- decisional has been ity significantly by eight spe- channeled cific factors or standards listed in 9. MCL 17.455(39). 423.239; MSA That trenchantly section circumscribes the arbitral inquiry tribunal’s involving those only disputes "wage rates or other conditions” of employment newly embraced or proposed agreement, amended and labor com- its findings, opinions mands "base order” relative to those disputes narrow on the "factors, eight listed applicable”: as agreement no parties, "Where there is or between agreement parties where there is an but have begun negotiations looking or discussions to a new agreement existing agreement, or amendment of the wage employment rates other conditions of proposed agreement under dispute, opinions new or amended are findings, shall base factors, upon following appli- order cable:
"(a) authority employer. lawful "(b) Stipulations parties. of "(c) interests welfare and the ability government financial of the unit of to meet those costs.
"(d) Comparison wages, hours and conditions 408 Mich Opinion Williams, the arbitra- employees involved employment of the conditions wages, hours and proceeding with tion ser- performing similar employees other employment of generally: employees other vices and *36 "(i) comparable communi- in public employment In ties.
"(ii) comparable in communi- private employment In ties. "(e) goods and ser- prices for average consumer The living.
vices, the cost of commonly known as "(f) presently received compensation The overall wage compensation, including direct employees, time, vacations, insurance and other excused holidays benefits, hospitalization pensions, medical employment, and all other stability of continuity and received. benefits circumstances foregoing Changes any in of the
"(g) proceedings. during pendency of the arbitration "(h) foregoing, factors, not confined Such other traditionally into consider- taken normally are wages, hours and condi- ation the determination through voluntary collective bar- employment tions gaining, mediation, fact-finding, or other- arbitration public service or parties, between the wise 423.238; MSA MCL employment.” See private 17.455(38). among that the stan- here is Perhaps of interest direc- interacting legislative listed are two dards first, invest its deliberations panel tives: welfare, contemplation public specific with. as as an inexorable inquiry as a distinct well both ability financial governmental unit’s adjunct and, second, costs; proposed to sustain the private- comparable public- tribunal consider employment. wages, hours and conditions sector re- is further authority panel’s decisional 8, amended significantly stricted § 127, last-offer provide PA v Opinion by Williams, economic issues subject to the factors enunciated 9.26 8 provides Section in pertinent part: § issue,
"As to each economic the arbitration 127, 8, 4, Prior to the May 1972 PA amendments to effective § required merely opinion section the rendition of a written upon record, and order "just which shall be and reasonable and upon prescribed 10”; based the factors in sections 9 and it did not differentiate between economic or non-economic issues: panel, days "Sec. 8. The arbitration within 30 after the conclusion hearing, periods parties or such further additional to which the may agree, written findings promulgate shall make written of fact and opinion upon presented upon and order the issues to it and it, the record made before and shall mail or otherwise deliver a true copy attorney governing body thereof to employer of the and to the of the designated representatives or other employees public employer. reasonable and based findings, opinions just and order shall be upon prescribed the factors in sections 9 and 10.” Comparison significant of 8 as enacted and amended reveals required by modification. Prior to 1972 PA was 9§ ("wage alone to consider and resolve all issues rates or other condi- *37 employment”) upon applicable tions of to the 1972 based the 9§ factors. Pursuant amendments, however, panel by the is restricted 8 to the § adoption of that last offer of settlement toas each economic issue which, panel’s opinion, nearly complies applica- more with the factors; 9 ble upon § resolution of all other issues is to be based the applicable resolve ened last necessity Thus, only panel’s 9 authority factors. § is the strictly by parties’ sharp- economic issues circumscribed the authority by best offer but that is further bounded the considering applicable the 9 factors. § Although applicable litigation litigation these amendments were not concerned in the 1975 Dearborn decision because that preceded date, their effective Levin, Justices Coleman and Williams directly Dearborn, significance. supra, (opinion addressed their not, however, Levin, J. "Last-offer arbitration does address the consti- deficiency tutional power we find in this act: the of the decision maker, continuing who responsibility, does not have to make critical choices political on economic and non-economic issues without ac- countability.”), (opinion "Indeed, fn 6 Coleman, the 1972 duty amendments to Act 312 have made the arbitrator’s even more circumscribed.”), (opinion Williams, subsequent J. "A amend- provides authority panel ment a further constraint on the in requirement only by the each to consider the last offer of settlement made party encourages good-faith for each economic issue. This also bargaining by parties, prevents the as it submission of an offer so effectively require acceptance position. outlandish as to of the other’s only panel accepting rejecting Not proposal, is the restricted to or the last standards, it must base its determinations on [the § 9] 408 Mich by Opinion Williams, J. which, in offer adopt the last of settlement shall complies panel, nearly opinion of more the arbitration 9. The prescribed in section applicable factors
with shall findings, and order as to all other issues opinions in sec- applicable prescribed upon factors be based tion 9.” MCL 17.455(38). 423.238; MSA 9 factors Significantly, conjunction § economic panel’s of both consideration issues, therefore, further cir- and non-economic author- scope of decisional panel’s cumscribes ity. provi- specific has made
Finally, such limited orders of appellate review of sion economic and non-economic as to both Thus, order "shall although tribunal’s issues. MCL binding upon parties”, final and be 17.455(40), 423.240; that decision MSA * * * the arbi be reviewable for reasons "shall jurisdiction; tration the order is without or exceeded its was competent, material and unsupported by record;[27] the order evidence on the whole or substantial fraud, similar and procured by collusion or other was 17.455(42).28 423.242; unlawful means.” MCL MSA 13, supra, judicial review As indicated in fn standard § is, purposes, constitutional for all relevant intents and identical to the in Const standard of review of administrative decisions found 6, 28, provides pertinent part: art which decisions, findings, rulings any administra- "All final and orders of law, by agency existing or under the constitution or tive officer licenses, rights judicial quasi-judicial private or shall are and affect subject provided law. This to direct review the courts as include, minimum, whether such review shall as a the determination decisions, law; findings, rulings authorized final and orders are and, hearing required, are whether the same cases which supported by competent, on the material and substantial evidence 24.302, 24.306; 24.301, (Emphasis supplied.) See MCL whole record.” 3.560(206). 3.560(201),3.560(202), *38 MSA 60-64,infra, accompanying text. See fns 28 6, 1963, provision art for This section resembles the Const judicial patently expansive more than the restrictive review which provision general, for the review of arbitral awards in GCR court rule 769.9(1): 1963, v Opinion Williams, Proper/Improper Delegation Politically IV.
Unaccountable Arbitrators? city major Plaintiff has framed the first of its arguments following terms: 312, "1969 PA provides insofar as it compulsory for arbitration, violates the United States Constitution and Michigan by Constitution the State of improperly delegating legislative political responsibility po- litically unaccountable arbitrators.” procedure addressing As a matter of ourselves argument posited by city, to this let us analyze constitutionality delega- of the Act 312 conjunction without, tion scheme first and then in city’s point political with, consideration of the accountability. Vacating ".9 an Award. [Arbitration] “(1) Upon application party, of a the court shall vacate an award whiere: "(a) procured by corruption, The award was fraud or other undue means; "(b) partiality by appointed There was evident an arbitrator as a corruption any prejudic- neutral or of the arbitrators or misconduct ing rights any party; "(c) powers; The arbitrators exceeded their or "(d) postpone hearing upon The arbitrators refused to sufficient being cause shown therefor or refused to hear evidence material to controversy hearing the substantially or prejudice otherwise so conducted the as to rights party. of a "But the fact that the relief was such that it could not or would not granted by equity ground vacating a court of law or is not for refusing to confirm the award.” such, significantly incorporates appropriate As review without either 12§ all bases for permitting expansive litigation de novo as some jurisdictions provided, McAvoy, Binding have Arbitration of Contract Approach Terms: A New Disputes to the Resolution of in the Public Sector, (1972) likely Colum L Rev fn 73 would —which binding expeditious concept— frustrate the nature of the Act 312 or, 1963, 769.9(1), narrowly restricting as in the case of GCR so
judiciary’s arguably significant basis review as to shelter such 60-64, judicial inquiry. infra, arbitral decisions from See fns accompanying text. *39 Mich 410 408 458 by Opinion Williams, J. Generally: Delegation Constitutionality Act
A.
Reasonably Precise as the
Are as
312 Standards
Requires
Subject
or Permits
Matter
was suc-
Michigan
delegation
doctrine of
St
v
Clair
Osius
this Court
stated
cinctly
Shores,
(1956), in
693, 698; 75
25
344 Mich
NW2d
"standards”
test:29
following
terms of the
may not
legislative body
that a
"There is no doubt
lawmaking powers.
It must
its
delegate to another
however,
say,
This is not to
promulgate, not abdicate.
clothed
body
may
or official
when the law shall
not be
that a subordinate
with the
authority
operate, or
say
occasion,
however,
whom,
upon
provided,
or
what
as to
guidance are as rea-
prescribed for
the standards
29
description
delegation doctrine
Perhaps
of the
the most concise
Appeal,
498-
Locke’s
72 Pa
in the seminal case of
was enunciated
499
(1873):
law;
delegate
power
legislature
it can
its
to make a
but
"The
cannot
delegate
power
fact or
to determine some
state
a law to
make
make,
makes,
things upon
action
or intends to
own
which
law
stop
government.”
depend.
deny
the wheels of
To
this would be
Collins,
cave,
People
allegory
3
1854 in
v
in Plato’s
since
As
(1854),
intermittently struggled
distinguish
this Court has
Mich
light surrounding
question posed in Locke’s
the shadows from the
Legislature may delegate authority
Appeal
to a subordi-
whether
Although
initially
body
Court
non-elected individuals.
nate
adopted
delegations, judicial
distinguish
"proper”
valid from invalid
"true” and
tests to
inquiry
sharpened
to an
"whether the
focus has
non-legislator]
on the
the exercise of discretion conferred
limits [on
Argo
delegation
legislative powers”.
sufficiently
are
Oil
defined
avoid
(1935).
Atwood,
47, 52;
People
Corp
See
v
274 Mich
We must eight conclude factors ex- in 9 pressly provide listed of the act standards at § as, as, if least not more than precise "reasonably the subject as matter requires permits” effectuating the act’s purpose stated "to afford an alternate, expeditious, binding effective and proce- disputes”. 423.231; dure for the resolution of MCL 17.455(31). MSA These standards must be consid- ered in its review of both economic and non-economic issues. In its resolution of non- the panel "shall issues, economic base findings, opinions factors, as upon following order 17.455(39) applicable”, 423.239; MCL MSA (empha- supplied). 423.238; 17.455(38), sis See MCL MSA 31 Barr, generally See The Public Arbitration Panel as an Adminis Agency: Compulsory Accepta trative Can Interest Arbitration Be an Dispute Sector?, Albany ble Resolution Method in the Public 39 L Rev (1975); Grodin, Aspects 377 Political of Public Sector Interest Arbitra tion, (1976); Howlett, Negotiation 64 Cal L Rev 678 Contract Arbitra Sector, (1973); McAvoy, tion the Public 42 Cincinnati L Rev Binding Approach Arbitration of Contract Terms: A New Disputes Sector, Resolution of in the Public 72 Colum L Rev 1192 (1972); Note, Case The Uncertain Status of Public Sector Labor Colorado, (1977); Comment, L Firefighters, Colo Rev 451 Salt Arbitration. City 457; Lake v International L Ass’n 1977 Utah Rev Summers, Employee Bargaining: Perspective, Public A Political (1974). L J Yale express 423.239; and detailed standards of MCL MSA § 17.455(39), applicable to 8§§ both and 9 economic as well non- issues, III, B, supra. panel’s economic are out in Part set The instant consideration those factors relation to the issues before *42 analyzed V, D, is in Part C and infra. 408 Mich 410 462 Opinion Williams, to all other order as findings, opinions "The based shall be [i.e., non-economic issues issues] in section upon prescribed factors applicable the specific these supplied.) eight When (Emphasis 9.” 8 that the mandate coupled 9 factors are § § issue, the arbitration to each economic "[a]s which, adopt the last offer of settlement shall nearly more opinion panel, of the arbitration complies with prescribed applicable factors 17.455(38) 9”, 423.238; (empha- MSA section MCL is these standards sufficiency of supplied), sis patent.33 even more already, this have
Four Justices of Court Dearborn, Act 312 individually recognized that guide to the exercise sufficient standards provides Dearborn, In each of delegated authority.34 of agreed proposi- Justices this participating four 33 tacitly appears precision these standards have been merely weight city to be attacks the relative conceded given as argu sufficiency. city’s 9 rather than their factors § V, B, respect rejected in Part infra. in this is discussed and ment began premise opinion with the that "[t]his Justice Williams’ straight-forwardly requires to obviate 'sufficient standards so as Court any delegation ”, Dearborn, power’ supra, (opinion legislative J.), pro pre-amendment Williams, scheme and concluded through delega "legal accountability sufficient standards vided tion”. Id., 323. scheme, upholding pre-amendatory simi- Coleman, Justice also delegation: larly to sanction the found act’s standards sufficient pursuant adequate "The final decision of the arbitrator is made J.). Id., (opinion guidelines of 9.” Coleman, opinion adequacy of Justice likewise found sufficient the Levin’s the act’s standards: delegation "Generally, legislation challenged an when invalid legislative power, adequacy controversy revolves around the of the standards * * *. * * * guide challenged provides generalized standards to "The act delegated power reprinted in exercise of are stated the footnote]; [§ subject judicial decision is review. All J.). required Id., (opinion Levin, generally has been done.” Levin, implic- concurring separately with Kavanagh, Justice itly agreed has Justice Levin, that he with this observation of Justice "satisfied Id., Kavanagh, correctly (opinion of T. stated the law”. G. J.). C.J., concurring with Levin, *43 v 463 by Opinion Williams, J. tion even 9 before factors had opera- become § tive to both non-economic 8 offer eco- last § nomic alike.35 As issues Justice remarked in Levin "All regard: this that has generally required Dearborn, supra, been done.” of (opinion 259 J.). Levin, Osius
Applying
explication
of the delegation
doctrine,
all
that
required
constitutionally
dispute
sustain this
resolution mechanism is that
provide
at
statutory scheme
least as
standards
reasonably precise as the
matter
subject
requires
or permits. We
that
have found
the standards
embraced
by
9 factors
fulfill
this
require-
§
Legislature
ment. The
has determined
these
9
express and detailed
standards must be consid-
§
panel’s
ered
resolution
economic "last
offer”
best
issues
well
as
as non-economic
issues
Although
alike.
has chosen to
provide for the resolution of economic issues on a
last offer of settlement
expressly
basis
circum-
by
applicable
ap-
scribed
9 standards
in an
§
attempt
parent
to effectuate the
1 purpose
act’s §
alternate,
an
"afford[ing]
expeditious,
effective
binding procedure
for the resolution
of dis-
putes”, we
not
do
believe that either
the presence
of this
provision
absence
last best offer
is neces-
sary
the act’s constitutionality
under
the dic-
delegation
tates
doctrine
or otherwise.36
Coleman,
See
comments of Justices
and Levin
that Justice Levin
Williams
reprinted
supra.
emphasized
in fn
It should be
did
consider this
inquiry.
not
amendment
terms
standards
26, supra,
enacted,
originally
As discussed in footnote
Act
provide
Rather,
did
not
for last-offer settlement
economic issues.
economic as well as
were
non-economic issues
to be assessed
provision
9 standards
§
alike.
last offer
8 was introduced into
Although
provision
the act
before
"The
of the arbitrator
is made
Mich
Opinion Williams, which has
However,
unaware
court
any
we are
critical-service
act unconstitu-
a similar
declared
of such an
the basis of the inclusion
tional on
to two cases
provision
point
but can
economic issue
settlement
offer
which have considered last-best
their act’s constitu-
willingly
and have
sustained
are enumer-
sufficient standards
tionality provided
decision-making.37
ated
focus arbitral
conclusion,
per-
are
reaching
In
we
also
standards
are
the fact that
the Act 312
suaded by
which this and
precise
more
than those
patently
*44
under
previously upheld
have
similar
other courts
involving subject
delegation analysis
modes of
complex as that considered
matters
at
least as
have
their
jurisdictions
here.38
sanctioned
Other
even
interest
schemes
compulsory
dispute by
adequate guidelines
the
of 9. The arbitrator
resolves
§
position
by
by fashioning
selecting bargaining
compromise position.
proposed
party or
a
a
arbitrator,
adjunct
acting
as an
to the
impose
bargaining process,
liberty
his
not at
to
own solu-
PERA
by
go beyond
parties’
or
the boundaries established
the
tions
singular duty
bargaining positions. The
is to fashion a
arbitrator’s
by
dispute
keeping
in
the
set
workable
for the
limits
resolution
particular bargaining
parties
dynamics
of the
situation.6
Dearborn,
appealed
may
courts.”
this limited decision
be
Even
J.).
supra,
(opinion of
Coleman,
280-281
"6Indeed,
to Act 312 have made the arbitra-
the 1972 amendments
resolving
duty
disputed
tor’s
nomic
closely
more circumscribed. When
eco-
even
offer’
the arbitrator must select the 'last best
that more
matter
* *
guidelines
9
found in §
reflects
subsequent
provides a
"A
amendment
further constraint on
authority
offer of settlement made
also
panel
requirement
only
in
last
to consider
party
by
This
each
for each economic issue.
by
encourages good-faith bargaining
parties,
prevents
effectively require accept-
so
as to
submission of an offer
outlandish
position.
only
ance
the other’s
Not
restricted
accepting
rejecting
proposal,
it must base its determina-
or
last
J.).
standards,
Id.,
(opinion Williams,
on
297
tions
these
[§ 9].”
37
Jersey
See
State
Ass’n Town of
New
Policemen’s Benevolent
v
(1979);
271;
473;
Arlington
Irvington, 80 NJ
403 A2d
102 LRRM 2169
Arbitration,
769; 352
914
v Board of Conciliation &
370 Mass
NE2d
(1976).
38
30, supra.
See fn
DPO A
465
1980].
v
Opinion Williams, J.
though presented with less
even
precise39 non-
explicit
Furthermore,
standards
for decision.40
in
two cases where standards
identical
to those codi-
fied
Act 312
subjected
judicial
were
scrutiny,
sufficiency
Also,
their
upheld.41
was
in another case
39
27,
19,
Helsby,
4;
404;
Amsterdam v
37 NY2d
37 fn
371 NYS2d
(1975)
293,
290,
("[The Legislature]
332 NE2d
299
4fn
also
has
specific
established
be
standards which must
followed
such a
209,
(McKinney),
4,
(c),
par
Civil
(v).]
Service Law
subd
cl
[NY
§
[The
“take(n)
four
standards
§209
to be
into consideration” are enumer
37,
4.]”);
concurring opinion, p
Russo,
Harney
ated
fn
v
435 Pa
precise
(1969)
183, 189;
560,
(Despite
255 A2d
563
the lack
other
standards,
constitutional mandate that arbitrators act "in
the.
accor
legislative policy
dance with
was
law”
sufficient
view of the
protect
municipal
police
fighters:
from strikes
and fire
require
explicit
legislative policy
"To
a more
statement of
in a statute
calling
folly.”); Spokane
Spo
for labor arbitration would be sheer
v
Guild,
457, 463;
1316,
(1976);
kane Police
87 Wash 2d
553 P2d
1320
City
Regular
Ass’n,
Warwick v
109,
Warwick
Firemen’s
106 RI
117-
("The
206,
(1969)
118;
legislature
256 A2d
211
Gen
28-
[RI
Laws]
specifically
comprehensive
9.1-10 sets out
the actions of a
a number of
limitations
exercising
power
board of arbitration when
’* * *
delegated. They require
given weight by
that certain factors
* *
’(cid:127)’).
arriving
the arbitrators in
aat
decision
V See East Providence
850,
Fighters,
329,
v
333-336;
Local
International
Ass’n
Fire
RI
1151,
(1976);
366 A2d
Telephone
1153-1155
Jersey
In
Matter
of New
Bell
370-
America,
354,
Co v Communications
Workers
5 NJ
372;
721,
(1950);
Jersey
75 A2d
728-730
New
State Policemen’s Benev
Irvington,
271, 291-292;
473,
olent Ass’n v
Town
80 NJ
403 A2d
480-481;
2169,
(1979).
Anno,
generally
102 LRRM
2174-2175
See
ALR3d
902-908.
540, Amalgamated
County
Division
Union Mercer
Transit
v
(1978)
245, 252;
Improvement Authority,
NJ
A2d
*45
(The
implied
Court
the "inherent”
scope
standards
that
the arbitrators
statutory authority;
public
act within the
must:
interest as well as the
stabilize and
findings.);
consider the
impact;
fairly
reasonably
act
decision’s
to
and,
promote
peace;
adequate
labor
make
and sufficient
1215,
v
Richfield
Local No
International Ass’n of Fire
1979) (Sufficient
Fighters,
42,
(Minn,
276 NW2d
46-47
standards
provided although
provision
statutory rights
manage
only specific guideline
in
was found
the act’s
give
that arbitration
must
"due
consideration to
obligations
public
officially
employers
operations
legal
and conduct its
within the
limitations sur
rounding
financing
operations”.)
of such
See Biddeford v Bidde
1973).
Ass’n,
387, 402,
(Me,
Fighters
ford
304
Teachers
A2d
412
Fire
Union,
608, 613,
971,
3;
Vallejo,
v
12
Local 1186
Cal
526
3d
fn
P2d
(1974).
974,
3;
Rptr
generally
fn
116 Cal
507
See
68
885.
Anno:
ALR3d
—
Fighters
Medford,
519,
App
9;
Medford Fire
Ass’n v
40 Or
fn
1268,
(1979); Arlington
595 P2d
1272 fn 9
v
&
Board of Conciliation
Arbitration,
(1976).
769,
5;
914,
370 Mass
fn
352 NE2d
919 fn 5
B. Public
that Act 312 meets
have
made clear
just
We
delegation requirements
as framed
constitutional
considering
the city’s
in Osius without
directly
Does, how-
responsibility”.
"political
question
ever,
accountability
nonethe-
theory
312,
amended,
Act
uncon-
require us to rule
less
below,
con-
For the reasons offered
we
stitutional?
Indeed,
as a practical
since we find
clude not.
sufficiently
the act as now amended
matter
that
and accountabil-
provides
public responsibility
is
required
in
matter
neither
this Court
ity,
argument
political
accept
reject
city’s
nor
the act’s
necessary
sustain
responsibility
from the over-
separate
apart
constitutionality
delegation.
question
all
of constitutional
Dearborn,
public,
political,
In
lack of
or
account
from
view
basically approached
two
ability was
Ass’n,
109,
Regular
106 RI
City
v
Firemen’s
Warwick
See
Warwick
(1969).
206,
117-118; 256
A2d
42Although
Superior
in Town
v
the Connecticut
Court
of Berlin
(Conn
Court,
3259,
1978),
Santaguida,
Superior
ruled
LRRM
grounds
the state’s act unconstitutional
provide
it failed
judicial
review
evidenced
either sufficient standards
political
say
accountability,
had this to
insufficient
court
respect to the standards issue:
act,
imprecise to
"The
are too
standards contained
guide
decision-making, give
properly
an
arbitration
facilitate,
guard
flexibility and will
rather than
arbitrators unbridled
against
panels.
arbitrary action
When the standards
standards
compared
precise
set forth
included
inadequacy
the act are
to the more
jurisdictions,
similar arbitration statutes
in other
striking.
act’s
See
standards
even more
[Mass
Laws,
150E, 9, note;
423.239;
17.455(39); NY Civil
Ann
Service
MCL
MSA
§
ch
Laws,
(c),
(v);
(McKinney),
par
Law
subd
cl
RI Gen
§ 28-9.1-10].”
*46
v
Opinion Williams, J.
First,
points.
individuals
as
chosen
arbitrators
thought by
were
two
have
pro
Justices
to
been
vided insufficient
tenure
to ensure responsibility
and accountability. Then-Chief
Justice T. G. Kav
referred,
anagh
example,
pre-amendment
to
Act 312 arbitrators
as "hit-and-run
arbitrators”.
Dearborn,
of T. G.
supra,
(opinion
Kavanagh,
C.J.).43 Second,
of
system
arbitrator
selection
rendering
was attacked
the line
accountabil
ity between the arbitrators
and the
too
people
opinion
tenuous.44 One
indicated that choice of the
panel’s impartial
chairperson by
parties’
dele
gates
provide
alone would
public
insufficient
ac
countability
though
even
one party represented
municipal corporation;
appointment
impar
however,
tial arbitrator
the MERC
chairperson,
provided
sufficient
accountability
and re
sponsibility largely
chairperson
because the MERC
43Justice Levin
his
concentrated
efforts on whether the scheme
principle restricting
delegation
violated
constitutional
"[t]he
* * *
legislative power
dispute
persons
resolve
labor
other
government
than
officials
tribunals” enlisted as
of an
members
pursuant
procedures
pre-amendment
arbitral
4— delegate
Dearborn,
chairperson
supra,
selection—and §
selection.
5—
J.).
(opinion
Levin,
Primarily utilizing
Professor Davis’ "safe
guards” approach
legislative delegation,
finding
after
the 9§
adequate,
generally
standards
Justice Levin
ruled the scheme uncon
appended
following
but
stitutional
instructive caveat:
possible misunderstanding,
holding
"To avoid
we
that our
add
does
preclude
vesting
authority
from
to resolve
disputes concerning public employees
governmental
in a
officer or
agency
continuing responsibility
day-to-day
with
for the
exercise of
delegated power.
(arbitrator)
Such a decision-maker
would not be
but, rather,
'expendable’
responsible through
appointing
would be
authority
power
delegated
to the electorate for the manner
Id.,
is exercised.”
272.
Kavanagh
sepa-
Justice
concurred with Justice Levin but wrote
rately
amplify
Justice Levin’s caveat:
"Although
present
provision
law’s
for hit-and-run arbitrators is
defective,
constitutionally
providing
continuing politically
a law
for a
responsible
Id.,
arbitrator could
meet
constitution’s demands.”
(T.
J.).
Kavanagh, C.J.,
concurring
Levin,
273. G.
with
44Dearborn, supra,
Levin, J.),
(opinion
(opinion
241-242
J.).
Kavanagh, C.J., concurring
T. G.
Levin,
408 Mich
Opinion Williams,
*47
with the ad
appointee
the
direct
was
Governor’s
It
Michigan
of
was
the
Senate.45
vice and consent
an inherent
there
recognized
also
tension,
existed
objectives
of
not
the twin
dichotomy,
if
high
indepen
of
degree
the arbitrators
affording
and,
other,
hand,
requir
on the one
on the
dence
and
ing public accountability
responsibility.46
312
The four wrought modifications the 1976 PA 84 amendments 5 have altered greatly atmosphere accountability surrounding the ser- vice of arbitration In chairpersons. the first place, chairperson longer is no treated as an at-large a single particular one-time chair of panel. Rather, labor dispute chairperson permanent treated as a member of a *48 MERC Panel of who MERC, Arbitrators can be called upon by appropriate, to as panel chairperson serve for of any disputes.48 number labor This obviously paints picture out the of a "hit-and-run arbitrator” allegedly who is impact unconcerned about decision, his or her paints and true picture of an arbitrator seeking continued employment by both and public MERC employers/employees over time, length a and consequently recognizing the impact of his or significant her decisions as a factor in re-employment.49 48 pre-amendment Justice Coleman on commented tenure of following members in the terms: "Although Legislature have could established another bureauc- racy, panels impasses immediately chose short-term to meet —no many might they simultaneously. matter how duties do not activity, or where occur require office work outside of immediate arbitration th§ permanent prove costly unnecessary so a staff could and or (There inadequate. many impasses given span could be or no a within time.) corruption of less of also could have believed and bias likely Dearborn, panels.” supra, (opinion into settle these J.). Coleman, 49Zemetis, Compulsory Binding Municipal Employ Arbitration for Santaguida, ees in Connecticut: Town v Constitutional? of Berlin 583, (1979). Conn L Rev 592-593 Local See Richfield v No 1979). (Minn, Fighters,
International of Fire Ass’n NW2d 408 Mich Opinion Williams, MERC Panel of
Second, members of since state”, be "residents must Arbitrators his or her impact escape panelist cannot foreign but jurisdiction to a retreating decision his or her impact required to bear will employment credibility arbitral and reputation employment where continued Michigan "hit-and-run” against a militates sought.50 This too mentality. oath-taking requirement certainly
Third,
aspect
It
an
tenure.51
an aura
imposes
requirement
This
responsibility.
public office
deterrent
psychological
act as both
should
encouragement
and an
service
"hit-and-run”
responsibility.
perma-
on the
Fourth,
term
the indeterminate
cause,
terminable without
although
panel,
nent
and continua-
degree of tenure
certainly implies
of continued
importance
implies
It also
tion.
because
especially
This is so
behavior.
responsible
can terminate
behavior
irresponsible
obviously
encourages
provision
this tenure
Again,
tenure.52
responsibility.
accountability
fac-
the aforementioned
collectively,
Considered
"hit-and-run
image
tend to eradicate
tors
establish-
catalyst
as a
arbitrators”
act
both the
possessing
of a class of arbitrators
ment
which are
responsibility
of tenure
aspects
political
the notion of
compatible with
certainly
*49
political
complexion
This
accountability.
public
has been further
accountability
responsibility
Under originally chairperson § selection system alternatively permitted either ap- pointment parties’ or, delegates alone default, the event of their appointment by the MERC chairperson. political there was little
Obviously, very ac- in the first countability alternative ap- proach shielded the private selectors from both public scrutiny and the democratic of govern- form greatest ment’s sanction —the vote. The line of political accountability private drawn between the representatives and the far public very was from direct. alternative, however,
The second presented quite a different accountability perspective since that required alternative MERC intervention selection process. By appointing chair- person, presumed could be the MERC chair- person appointee direct of the Governor with —a the Senate’s advice and consent —would exercise great concern for the Governor’s political welfare as well as the chief executive concern officer’s good public service. This precluded alternative isolation from the public process and cleared the way for direct expressions satisfaction or dissatisfaction to those ultimately individuals re- sponsible for the members’ decisions. present 5 selection system, as amended by
1976 PA has eliminated minimally ac- countable first of delegate alternative selection and expressly retained second alternative’s 17.454(4). 423.3; 17.454(3); 423.4; MCL MSA MCL MSA *50 Mich 410 408 by Opinion Williams, J. provision through accountability of spirit public from a chairperson of a for MERC selection Albeit tem- panel. permanent MERC-appointed a exercising peremp- parties’ right the pered by chairperson veto,54 power the 5 focuses tory § to the exclu- alone in the commission appointment or the MERC delegates parties’ of either the sion Furthermore, the provided. chairperson as earlier large at but longer no chosen appointee MERC to, by, appointed earlier screened must have been MERC panel of permanent a from and selected commission, guber- the arbitrators established body. appointed natorial^ amend- significant together, these
Considered
accountability
political
order of
high
ments fix a
Indeed,
the
scheme.
appointment
chairperson
the
considered
have
which
jurisdictions
majority
those
accountability;55
have found
question
peremptory
contends,
part,
city
5§
that exercise
delegate against
is no more
the MERC nominees
strike of each §
sustaining
impression
aimed at
hollow contrivance
than a
original
alleged accountability
scheme have
deficiencies of
altering
chairperson
materially
selection
been eradicated without
mechanism.
delegates,
repre-
Any
three names
time MERC submits
any
would be
senting
one of the nominees
that it is satisfied that
if,
dispute.
particular
Even
as the
qualified
city suggests,
contract
to arbitrate that
delegates
two of
will eliminate
in certain instances
nominees,
leaving
thereby
the Hobson’s choice
MERC with
three
nominee,
selecting
only remaining
have none-
the MERC will
permanent panel
initially
on MERC
who will be
theless
selected
panelists
offered as nominees
those
will be
well as which three of
as
to the
serve as
panelist
enlisted to
delegates.
will be
The decision as to
nominee,
chairperson,
as a
as which will be selected
as well
instance, thereby
render-
always
in the final
made MERC
will
Governor,
and, derivatively,
for the
ing
manner
accountable
MERC
both
discharges
chairperson
his or her duties.
in which the
panel members
for the selection of arbitration
Similar mechanisms
upheld
International Ass’n
in Richfield v Local No
have been
1979),
(Minn,
Arlington
Fighters,
v
44-45
Fire
Board of Conciliation
NW2d
Arbitration,
769;
This blinks the that the role of ap- both the Act 312 arbitrators and the MERC pointing authority is to effectuate a state labor policy ing ipal police as formulated the state serv- stoppages by
the state electorate. Work munic- departments, although primar- and fire ily pose legislatively situs, local were deemed to public safety a threat health, state’s people welfare. Should the be dissatisfied with the aspect accountability engineered scheme necessarily which must transcend local bounda- upon ries, electorate, the onus is the state’s includ- ing voting locally population, affected to exer- political cise its will. Independence
3. Inherent Tension Between Accountability 312 scheme,
Inherent the Act as well as such delegation general, tension, schemes in is the if apparent dichotomy, between the dual act’s objective affording arbitrators sufficient deci- independence complex disputes sional on resolve maintaining hand, and, other, the one public responsibility accountability of those specifically Indeed, arbitrators.59 since the act seeks speedily complex impasses resolve contractual dynamic in the sector, critical-service labor especially necessarily this tension is enhanced City Ass’n, Regular See of Warwick v Warwick Firemen’s 106 RI 109, 117-118; (1969). 256 A2d 408 Mich Opinion Williams, flexibility need to allow the scheme’s disputes. those
resolution of tensions However, find that these inevitable we of the act’s in view adequately balanced have been standards, public at- the extremely for provision oper- Act 312 mechanism in which the mosphere review. ates, provision judicial and the 12§ *55 seen, been flexibility has operational As have we legis- context of maintained within the successfully unfet- to check both prescribed standards latively to provide and authority of arbitral tered exercise decisional con- guideposts of the arbitrators significant deemed have been sideration which Although representatives. through their people inde- of degree with a certain panel operates as non- fashioning economic as well pendence awards, significantly is exercise economic for of standards guided well-articulated series by a sharp- negotiated and resolving previously those ened, unresolved, matters. yet account- independence and
This tension between pub- extremely alleviated ability is further chairperson ap- atmosphere lic panel operates. MERC and the Act pointed by the matter Indeed, proceeds context in which profound scrutiny, high of visibility is one MERC’s focused both publicity sharply where public Such panel’s and the deliberations. selection accountability enhances undoubtedly attention Since appointees. appointers of both great public point are the focal both bodies intense session political during interest legislative man- affront any either activity, invite immedi- likely dates or the will would that, The twin facts and effective reaction. ate for a fixed first, not serve panelists do permanent discre- time at the any at term but are removable v DPOA Opinion Williams, and, second, tion the MERC continuing seek employment concern, in this area of presumably quicken the arbitrator’s awareness that statutory heeded, guidelines are be closely en- thereby couraging enhanced accountability. balancing
Further the exercise of arbitral inde- pendence is the act’s provision judicial § V, A, review. See Part for interdependence 8§§ and 9 requirements with 12. This section resem- § 6, bles the Const art provision for re- § view administrative orders60 which is more ex- pansive than the provision restrictive court rule for the review of general, arbitral awards in GCR 1963, 769.9(1), which precludes judicial inquiry into the factual merits an arbitrator’s resolu- such, tion.61 As all significantly incorporates appropriate bases per- for review without either mitting expansive litigation de novo as some juris- provided62 dictions have would likely frus- —which binding trate expeditious nature of the Act 312 concept or, as in the case GCR — *56 769.9(1), so narrowly restricting the judiciary’s basis for review as to arguably shelter such signifi- cant arbitral decisions judicial from inquiry.63 The inclusion of similar provisions in other acts has likewise recommended their wisdom.64 60 27, supra. fn See 61 28, supra. See fn 62 28, supra. fn See 63 Britton, Judicial Review and See Enforcement the Arbitration 3) Award, (No. 1980). 22, (March, 16 Trial 24-25 64 Helsby, 19, 404; Amsterdam v 38-39; 37 NY2d 371 332 NYS2d 290, (1975) (by judicial 540, interpretation); NE2d 300-301 Division Amalgamated Improvement County v Transit Union Mercer Author ity, 245, (1978) 253-254; 1290, (by judicial 76 NJ 1294 A2d Fighters Medford, interpretation); Medford Fire Ass’n v App 40 Or —519, 1, 1268, —; 1, (1979); fn 595 P2d Richfield v 1269-1270 fn 1215, Fighters, 42, Local No Ass’n International of Fire 276 NW2d (Minn, 1979); Spokane Spokane Guild, 457, v Police 463; 87 Wash 2d (1976). 553 P2d 1319-1320 Even those cases where similar Mich Opinion Williams, amended, stan- provides Act
Because matter subject reasonably precise as dards as Osius, we supra, and since permits, requires exhib- matter, the scheme find, practical aas find the accountability, we amended adequate its act constitutional.
V. Review Panel’s Award the Arbitration constitutional, turn we Act 312 Having ruled of whether question general our attention In ad- enforced. should be award the arbitration alert issue, especially must we dressing review ex- judicial scope the limited follow section, act. That 12 of the pressly provided § states: part, relevant panel be reviewable shall of the arbitration "Orders * ** was only reasons that unsup- jurisdiction; the order
without or exceeded evidence competent, and substantial material ported by procured by record; was or the order on fraud, whole unlawful similar and means.” or other collusion 17.455(42). 423.242; MSA MCL noted, pro- neither this section just As we have to consider with a license this Court vides an subject nor to award of an arbitration wisdom Dearborn, supra, 318. to de novo review. award scope having confined our Rather, binding arbitra- assessing compulsory, of review in an uphold awards, are bound statutorily we tion of 12. prescriptions if meets the award re- the arbitration city claims unconstitutional, necessity for statutory ruled schemes were Santaguida, judicial expressed. 98 LRRM of Berlin v review was Town *57 (no (Conn 1978) Court, judicial 3259, review); 786, provision Superior for Firefighters, P2d City v Ass’n of Salt Lake International review). 1977) (no (Utah, provision judicial v DPOA Opinion Williams, erred in versibly only particulars: three the pan- ruling el’s wages, COLA, and award on and the hardship exemption the city’s requirement that police all Detroit officers be residents Detroit. The main thrust of the attack on the city’s award (1) to these three items is twofold: the award is violative of 12 as "unsupported by competent, § material and substantial evidence the whole (2) record”; and the arbitration panel failed to comply requirements and 9 §§ rendering its award. Except as to one facet of the panel’s residency hardship exemption award which infra, 73, will be discussed fn the city does not assert was without exceeded jurisdiction or that procured order was fraud, collusion or other similar and unlawful means.
However, before may we entertain these two issues, central we must dispose of two collateral issues.
A. The Contextual Interdependence 9 and §§ 12 of the Act: Judicial Review of the 9 Factors §
Preliminary our consideration con- award, tested items of the necessary stake out perimeters judicial under 12 of review § act. act, the. Close examination light the well-known rule of statutory construction that each section of an act read with reference to every other section so produce as to a harmoni- whole, Sutherland, ous see 2A Construc- Statutory tion, 46.05, p 8, 9 leads us to conclude that §§ and 12 evidence a interdependence contextual necessitates joint their consideration a court sitting in review of an Act 312 panel’s arbitration award. specifically provides that an order
Section shall for the be reviewable *58 408 Mich 410 482 Opinion Williams, J. competent, mate- unsupported by
reason it is that whole record. on the evidence rial and substantial however, must of review, we To make such mandated statutorily in mind the have necessity unequivo- of such an order. Section requirements or other "wage rates that cally directs where * ** are in dispute, of employment conditions ñndings, opinions base its shall panel arbitration factors, order following [eight upon listed] 8 like- Section (emphasis supplied). applicable” as in its determi- panel, arbitration wise directs issues, non-economic economic and nation of both "As to economic each these same factors: § adopt panel shall the last issue, arbitration which, opinion in the of the offer of settlement with the panel, nearly complies more 9. The prescribed section factors applicable as to all other issues and order findings, opinions pre- factors upon applicable shall be based 9.” It therefore that patent in section scribed rendition an ultimate require these sections on the 9 factors— which is either "based” award § case, "more of non-economic issues —or complies 9 factors —in the case with” nearly § pre- governed the last offer of economic issues then, or any finding, opinion In scription. effect any issue must emanate of the order eight of the listed factors from a consideration § applicable. making which must disposition In an Act compliance "in upon” statutorily "based applicable, factors as with” § final disposition has deemed such competent, "if material binding supported by on the whole record”. and substantial evidence 17.455(40). Section 12 likewise 423.240; MCL MSA binding determina- provides such final and v DPOA Opinion by Williams, tions or of the arbitration panel” shall be "[o]rders "only reviewable courts for reasons * * * order unsupported by competent, ma- terial substantial on the evidence whole rec- Construing then, ord”. 9 and 12 together our §§ review must find that the arbitration panel did indeed base findings, opinion upon or order competent, material and substantial evidence re- 9 factors. Cf. Caso v lating applicable *59 153, 158; Coffey, 41 NY2d 359 NE2d 686 (1976). words, In other the panel order the must reflect the applicable factors and the evidence establishing those factors must be competent, ma- terial and substantial evidence the whole rec- through ord. It is only judicial this inquiry into a panel’s adherence applicable 9 factors in § fashioning award that given effectuation can be to legislative the directive that such awards be of, substantiated by evidence and emanate from of, consideration the applicable 9 factors.65 § B. Relation of Economic and Non-Economic Issues to Factors §9
One other interpretation matter of statutory needs be addressed preliminary to our examina- tion panel’s city argue award. The seems to the act must be considered unconstitutional if panel has freedom to determine which of 9 factors are most applicable to a certain § case. apparent foundation for this argument perceived some repugnance between the concept assessing a statute’s constitutionality on the suffi- of its ciency guide delegated standards author- 65 interrelationship Our review of the between Act 312’s sections requires part Alpena Alpena us Fighters to overrule that v Fire Ass’n, AFL-CIO, App 571-572; (1974), 56 Mich 672 224 NW2d applicable which held that failure to base an arbitral award on the act, 9 factors not was reviewable § under but rather was § requirement process. reviewable under the constitutional of due 408 Mich Opinion Williams, recipient simultaneously allowing
ity, while weight the discretion authority delegated a particular the context within these standards case. The fact contention. city’s with the disagree
We not persuaded be majority may that an arbitral to certain argument evidence party’s failed those arbitrators mean that items does not consideration factors give statutory ex- Legislature has neither law. The required by in Act evinced intention implicitly any nor pressly equal accorded each factor § 312 that their Instead, has made weight. on the mandatory treatment, applicable, where word "shall” through the use §§ then, provide 9 factors effect 9. In § the arbitrators to ensure that checklist compulsory into considera- taking after only an render award Legisla- relevant factors deemed tion those are 9. factors Since ture and codified § them- cannot of they intrinsically weighted, It an answer. the arbitrators provide selves difficult decision make the which must *60 more factors are particular determining which under resolving a contested issue important course, all case, although, of of a singular facts com- Our factors must considered. "applicable” Comm, Boundary Twp v State Midland ment (1977), is here 641, 676; 259 NW2d 401 Mich apposite. factually inappli- were
"Merely some criteria because to be of less the commission found cable or were that the does not mean importance criteria than other The commission 'ignored’ relevant criteria. commission may importance outweighing decisive be of regard particular criterion all other criteria.” v Opinion Williams, Supported by Compe- C. The Economic Award is tent, Material and Substantial Evidence on the Record Whole juncture,
At this initial respect- our observation ing our scope limited quick review deserves reiteration. a panel’s If award supported competent, material and substantial evidence on record, we are whole to uphold mandated it. As in the analogous we noted of appellate context finding: review a MERC "Such must review be undertaken with considerable
sensitivity in order that the courts accord due deference
expertise
to administrative
not
province
and
invade the
fact-finding by
of exclusive administrative
displacing an
agency’s choice
reasonably
between two
differing views.
Cognizant
concerns,
of these
the courts must walk the
tightrope
duty
requires judges
provide
prescribed meaningful
Michigan
review.”
Employment
Orchestra,
Inc,
Relations Comm v Detroit Symphony
(1974).
116, 124;
393 Mich
After having painstaking made a examination the voluminous arbitration hearing record as well opinions as the (original supplemental) orders of the arbitration panel, the trial court and Appeals, Court of we are satisfied instant arbitration award on the economic issues wages COLA and is supported by competent, material and substantial evidence the whole record. conducted some 15 hear-
ings including arguments by parties final a 44-page wrote opinion setting forth the basis of its original award. In its opinion on COLA wages the panel carefully specific delineated evi- dence relating Indeed, to each of the factors 9.§ this opinion specific included a section devoted *61 408 Mich by Opinion Williams, respect factors with analysis
an § the trial court As economic items. two contested lite, which reasons opinion pendente in noted final order enforce- adopted in its later were specific with replete is ment, opinion Panel’s "[t]he act and of 9 of the related to the criteria findings § related, also, in case”. to the evidence of the Application 1. Panel’s § A Review in Its Economic Award Rendering Factors importance of the However, recognition in case, of being at the risk considered this tedious, summarize briefly have decided to we weightier pertaining evidence pages these panel heard 9 factors which was the § It is this evidence of its award. formed the basis our that arbitration compels conclusion issues of COLA and the economic respecting award upheld. wages must of the a framework to our consideration
As disputed support panel’s of the eco- evidence in awards, general merit nomic some observations that 8 of the act re- voicing: again stress We § parties’ "last quires panel to choose one pre- of settlement”. Thus while the offer it fashioning might from what consider a cluded award, equitable compromise or more award shooting too from prevented independently also Further, recognized low. it should be high too insignificant a not gives that the arbitrators § particular last adopting measure of discretion pro- offer of settlement 9 factors vis-á-vis § shall viding the last offer chosen opinion be the one that "in the the "applica- panel, complies” more nearly note 9. We would also prescribed ble” factors wages were of COLA economic issues case, being the COLA related inextricably *62 v DPOA Opinion by Williams, J. of paramount significance item to both parties. Thus, city abolishment, because the advocated the diminution,66 or severe of the arrangement COLA in by contract, won the DPOA its previous its wage proposal was higher understandably than that of the DPOA. Conversely, because the DPOA the requested maintenance of the COLA previous provision, wage its proposal was more than modest nexus, that of the In recognition of this city. the together discussed the relationship of the wage proposals COLA and to the factors. Fi- § it also nally, recognized must evidence relating eight to the factors of 9 is not com- pletely segregable; evidence relevant to one factor others, will often be relevant to causing some measure of interdependence among the factors. However, factor, applicable, each if must still be given separate panel. consideration by the authority employer. 1:
Factor The lawful of the Evidence on this factor centered on the city’s taxing powers. The panel acknowledged city’s legal uncontradicted evidence that it at was taxing powers. limit its Although the panel explicitly on recognized these limits the lawful authority of the employer rendering tax in its award, economic this factor was considered conclusive in and rather it panel; itself city proposed actually two-plan last alternative their plan COLA, city wage offer. In the first offered no but offered 4.8%, years increases contract. reached and each 4% second of the three 4% city’s plan offered a settlement identical to that city State, County, and the American Federation (AFSCME) Municipal Employees Although after a short strike. plan COLA, provide the second alternative did for some less was advantageous prior than the COLA its under contract. example, city’s offering plan required greater For COLA price living trigger increase in the consumer index to a cost of allowance, provided payments wage no roll-in of COLA into base rates provided price from no benefit consumer above index increases "cap”. 408 Mich Opinion Williams, contention basic city’s a facet simply was pay was limited. ability its Stipulations parties. 2: of the Factor acknowledged panel expressly point, To stipulations parties its appreciation helped matters which economic non-economic dispose of issues. simplify or Factor 3: The interests and welfare government of the unit of ability the financial to meet those costs. although capabilities, financial its
Respecting budget present failed city specifically *63 the its city spent money, as to how other evidence ability evidence of a "limited” city introduced the city also introduced to arbitral award. The pay any concerning the various evidence considerable fiscal abilities due inter alia to on the city’s strains and the population dependency in city a reduction revenues. budget on state and federal of the city city’s limitations on the recognizing such While finances, city’s aware of the panel acutely the was it did an inability that not have explicit statement an for the attorney city to an award. As pay stated, inability not assert an to city "The does determined, but sum as any may additional pay its has limits”. ability pay that juxtaposes city’s ability The third factor public. and the interests and welfare of pay welfare, Respecting public interest consequence of the fact panel major considered Sergeants the Detroit Police Lieutenants ("LSA”) awarded,67 recently been Association had 18, petition judicial city’s of review the October On leave, wages, the circuit court LSA award as to COLA and sick panel on December remanded the award to for the COLA, supplemental findings wages and directed fact concerning parties panel adopt of one the last offer February court aspect 1979 the circuit economic of sick leave. On v DPOA Detroit Opinion by Williams, in 312 arbitration, another Act a continuation previous provision COLA which was substan- as the tially the same DPOA’s last COLA offer in the instant case.68 In light of the fact and LSA enjoyed strong historic relation- ship, a majority believed that a denial of COLA to the imperil DPOA would police morale performance the effective of their services to public. detriment Comparison wages,
Factor 4: of the hours and employment employees conditions of in- proceeding volved in the arbitration with the wages, employment hours and conditions of performing employees other similar services and employees generally: with other (i) public employment comparable In commu- nities.
(ii) private employment comparable In com- munities. factor,
With respect the panel reviewed comparing police evidence officers’ salaries and fringe metropolitan benefits to those of Detroit communities, area as well as to large, out-of-state cities. The found appro- the former the more priate, not only comparabil- since is there a lack of cities, ity conditions other but major *64 upheld panel’s 24, adopting January supplemental the arbitration deci- sion which reaffirmed its earlier decision the LSA’s last offer respect wages with & and COLA.Detroit v Detroit Police Lieutenants Sergeants Court, (Wayne 78-836-638-AV, Ass’n Circuit Docket No. 1979) (order affirmance). 20, February of The court’s circuit order of stayed by Appeals, enforcement of the award was completion the Court of until appeals process, only period of the as to the retroactive 24, 1, July January unpublished per between 1977 and 1979. In an 19, 1979, Appeals curiam dated October the Court of affirmed the (Mich upholding panel’s circuit court’s award. decision the arbitration 1979) 44095, (affirmance court). App The 19, Docket No. October of trial city appealed this decision to us on 1979 and November we abeyance by pending February held the case in order of the (Docket 64065). resolution of instant case No. placed The LSA award was into evidence as Exhibit 56. Mich by Opinion Williams, that communities against nearby these panel also for officers. The police must compete comparison for recent LSA award relied on the of Detroit group was other only since LSA of to those services similar employees performing short, panel apt In found the more DPOA. of this persuasive comparisons purposes and and city security personnel, with other factor employees general. not with other city comparisons private with panel did not consider and therefore did not base employment persuasive comparisons. such upon of conclusions any goods average prices for Factor 5: The consumer commonly services, cost liv- known as the of and ing. regarded testimony as panel importance of a COLA concerning provi- the need for use means, sector, in the public as not unusual sion wage some to the real providing protection living, position, as well the standard both wage salary during inflationary peri- workers that an ods. Thus determined living in the cost of from expected increase 6% during three new year years 8% contract, requested the COLA the DPOA would protection. only afford 50% 80% compensation presently Factor 6: The overall including wage employees, direct received compensation, holidays vacations, ex- other pensions, time, medical and cused insurance continuity hospitalization beneñts, and stabil- ity employment, and all other beneñts received. significant
It very was merely repre- respecting DPOA’s last offer COLA provision sented a continuation COLA had been won the DPOA in collective at bargaining agreement expired the end *65 v Opinion by Williams, J. June, adopting 1977. In the pro- DPOA’s COLA posal, panel simply opted the for a maintenance the quo regarding provision. status Changes any foregoing
Factor 7: in of the cir- during pendency cumstances the the proceedings. development primary importance to the
panel the was the award in LSA arbitration case handed down October Howlett earlier, panel. noted in part As relevant award granted LSA COLA provision essen- tially the same as that forth put in DPOA’s last offer. The LSA award was of considerable importance panel fashioning instant in own award since the panel was intent on main- taining the historic relationship between the com- pensation police officers below rank of ser- geant and those above. factors,
Factor 8: Such other not conñned to the foregoing, normally traditionally which are taken into in consideration the determination of wages, employment hours and conditions of through voluntary bargaining, collective media- fact-ñnding, tion, arbitration or otherwise between parties, public private in service or employment.
The panel noted that the parties specifi- had not cally delineated their presentations any "other Therefore, factors”. only "other factor” which panel relied on morale. was As noted under our factor, discussion the third be- lieved that high maintenance morale police was an important factor considered ren- dering its award.
Briefly summarizing panel’s application 9 in rendering its award on the economic issues in dispute, determined interests 408 Mich Opinion Williams, could high police morale more *66 the of by preservation insured a effectively be panel arrangements. Since the had previous COLA contract run city’s proposal that the adopted the proposal the to DPOA’s years, opposed for three contract, of panel persuaded the was two-year of a to main- provision of a the COLA necessity such unforeseeable against the partial tain some shield inflation position by wage erosion of an officer’s period. an extended that occur over such could the maintenance of panel to the Also of concern of the recognition was the provision the COLA LSA. to this relationship to the Central DPOA’s plead the failure to or establish city’s award was to introduce its inability pay of position of services budget69 indicating what curtailment the DPOA’s last necessitated COLA would be offer. the inextrica- wage the fact that issue was
Given COLA, having the panel, related to that bly DPOA, then proposal the the opted for COLA it wage chose proposals; the lower of the two chose 4-1/2%, proposed the DPOA’s 4% 3-1/2% of the each of the three wage years increase in 4.8%, city’s proposed to the compared contract as in each of those same wage increase 4% 4%70 recognize city’s While we that three years. recognizes opinion city’s that in its brief the trial court noted expenditures city provide budget how that were made. The budget failed show city’s city post-award of the did introduce a affidavit show, general way, that director which tends to in a enforce panel’s effect ment of the award would have a detrimental on However, pur city’s public poses is inadmissible for services. this affidavit judicial it the the of the since was before review award See at the time rendered award. also arbitration judge trial value this affidavit. of the limited comments city’s Taking into account all of terms and conditions wage plan supra, in fn 66 total benefits to alternate DPOA under set out amount, plan, including COLA, also would alternate 4.8%, 4%, wage approximately, three- over the increases 4% year life of the labor contract. v DPOA Opinion Williams, higher was than that of the wage proposal (or, lack of due to the the case its Plan city’s minor) II, remains proposal, COLA the fact having accepted proposal, the DPOA COLA wage then awarded of the two the lower proposals. find the
In of the we light foregoing analysis, award of the DPOA’s last offers on panel’s supported items to have been contested economic evidence competent, material substantial record. on the whole argument city final remains to be
One respect panel’s discussed with city panel’s award. The asserts economic panel’s vacated due to the refusal award should be 30. *67 to admit into evidence Exhibit This City’s impact was intended to show the cost exhibit the on panel award made instant COLA any to the DFFA and the LSA. In wages, and relative short, argued the that such an award would city agreed DFFA since had city already affect the the proceeding Act 312 to a another arbitration agreement, respecting certain economic ben- parity efits, police fighter, officer and the fire between lieutenant, and the fire and the police sergeant The effect police captain. lieutenant and the fire bargaining unit sergeant’s on the lieutenant’s and contract previous inhered the fact that LSA, as the between the and the as well city panel proposed one before an Act offered, that provided at the time Exhibit 30 was sergeant’s pay lieutenant’s and would be city’s that of officer. The percentage police relevant, then, that 30 was argument, was Exhibit under the third factor piece as one of evidence ramifica- the extent it illustrated wage of the instant any tion of COLA or award 408 Mich Opinion Williams, total budget, on the city cost panel on total city pay. of the ability and the offered, the chair- Exhibit 30 was At the time parties’ pre-hearing panel, per man of statement, ruling responsibility exercised his de- matters and evidentiary procedural He so on the to receive the exhibit. did clined premature was since grounds its admission involving the proceedings the Act 312 arbitration sergeants had lieutenants fighters fire and the not then been concluded. is not we stress that this Court
Preliminarily, "super-arbitrator” to oversee constituted some our process opinion may when redirect arbitral evidentiary/proce- on such an panel’s differ with a explicitly this. Section 6 of the act dural matter as panel of latitude to the degree a wide accords It true that introduction of evidence. do not apply rules of evidence” "[technical however, receive into hearings; panel "may” documentary oral or evidence any evidence it. In view of data "deemed relevant” other mat- on this reposed such discretion ter, our review is limited to the determination whether, instance, of City’s in this the exclusion egregious so as to cause the award Exhibit was issues to be on the contested economic unsupported by competent, material and substan- tial evidence on the whole record. *68 on the panel
The arbitration was well-informed making In the dis- city. cost of its award to the ob- ruling, panel chairman puted evidentiary served: knowl- composed persons who are "[Y]our gener-
edgeable sophisticated affairs and as far v Opinion Williams, And, relations matters. ally, and indeed about labor knows, charged are with know- else we everybody what ing.” cost, everyone panel, every- on
"I know fact cost is sitting very conscious of the out there is one naive, un- not not and we’re of consideration. We’re mindful of costs.” following find the
More we specifically, decision: panel’s majority city in its escape history of the
"The cannot unions, only as evidenced with its relations undertakings by actions of the elector- but contractual years there has been a time to time. For ate from police person- and fire between benefits correlation nel, * * * personnel. security to as commonly referred debate, general electorate and years After both principle parity was bargaining, in collective interest- police and fire. Even more established between degree certain to a between ingly, there is a correlation positions among Department and positions in the Fire Sergeants.” Lieutenants and earlier, opinion chairman is of the "As indicated change history nor panel cannot remake or parties themselves have escape history can made, is, relationships in com- internal of certain among and Ser- parisons Lieutenants between geants as well as between and DPOA members the fire among groups bargaining units and these fighters.” City’s foregoing,
In
the exclusion
light
have
said to
evidence
cannot be
Exhibit
from
unsupported
to be
caused the economic
award
substantial
evidence
competent, material
reaffirm our
Accordingly, we
the whole
record.
award.
of the economic
holding
validity
as to the
*69
D. The Non-Economic Evidence on Material and Substantial Competent, Record the Whole exemption to hardship the find that
We cannot compe- supported residency requirement the the on evidence tent, material substantial 8, 1979 August in its The panel, record. whole issues, not did residency on the on remand opinion making applicable 9 factors consider all the § award, mandates. as Act 312 V, B, supra, the Part under emphasized
As we
9,
8 and
language of
through the
Legislature,
§§
in mak-
panel,
the
directed that
unequivocally
has
applica-
9 factors where
award,
treat
ing an
§
and therefore
precatory
language is
ble. Such
ignore
have the discretion
does not
panel
Moreover,
legisla-
9 factors.
applicable
any
§
panel
on the
obligatory
is no less
tive directive
to intro-
have failed
themselves
parties
when
In
factor.
such
applicable
an
on
duce evidence
inten-
with the
comply
order
panel,
case the
decisions be substanti-
that arbitral
of Act 312
tion
of,
from considera-
and emanate
evidence
ated
factors, must direct
of,
applicable
tion
§
relating
appli-
to introduce evidence
parties
able,
panel
will be
doing,
By
factors.71
so
cable
findings
make
8 and
the dictates of
per
§§
factors enumerated
upon
applicable
based
it.
of record before
9 from the evidence
§
non-eco-
on the
award
rendering
present
In
to the resi-
exemption
hardship
of a
nomic issue
all
not consider
did
requirement,
dency
considered
applicable
panel only
factors. The
August
9 in its
first,
factors of
third and last
568;
Ass’n, AFL-CIO,
App
Fighters
56 Mich
Alpena Alpena Fire
v
(1974),
Act
it held that an
is overruled insofar as
We note that in the earlier and affirmed quested by city the unchanged left intact and panel Platt award was hardship the except award panel’s the hardship exemption we find the exemption. Since residency comparability evidence on The failure to introduce city’s its patently not to introduce different from either the decision supra, p City’s exclusion of budget, or the chairman’s discussed 30, present supra, p 493. The situation involves the discussed Exhibit total failure of either any party whatsoever on to introduce evidence factor, panel consequences applicable that the was with the fourth rele has deemed factor which the unable to consider a making this total In contradistinction to an Act 312 award. vant merely evidence, budget have city’s and Exhibit 30 would lack of introduced pieces which were in addition to others been of evidence pay relating ability These omissions under the third factor. to its therefore, panel evidence, deprive did not serve to from applicable ability third factor. to consider 408 Mich Opinion by Williams, panel unsupported
award to have been material competent, substantial evidence on record, requirement, whole its residency entirety, up must be reaffirmed. It is now parties to either introduce on the applica- evidence ble factors before reconvened or to return bargaining.73 collective holding provides rationale the resolu- tion of argument. last city’s city asserts for the trial was error court well as the ignore request to amend portion of "residency” present collective bargaining agreement so that the word "resident” would be defined terms of a 1978 City Detroit provides ordinance which that "residence” is to be construed as the "actual domicile” the individ- ual, with an individual being capable of having only Code, one City 2-1-1.2; "domicile”. Detroit Detroit Ordinance No. The predecessor 245-H. *71 1968 ordinance had defined residency terms of ate, where an individual normally slept and main- tained personal his normal and household effects. Detroit Ordinance No. 327-G. This former ordi- nance, contends, the city created difficulties enforcement.
Initially, disagree we with city’s complaint that panel ignored the city’s re- quested amendment. In opinion on remand on issue, the residency appears: the following "In the completeness, interest of it must be stated that panel above, unanimous action of the as noted panel’s residency hardship exemp Since we have disallowed the DPOA, tion city’s respond award favorable to there need to is no to the panel’s award, hardship exemption contention promulgated May supplemental opinion award, on 1979 in a panel is invalid alter its jurisdiction unilaterally because the lacked the original city December 1978 award with which the claims complied. it had v Opinion Williams, 20, 1978, opinion, it when was its December under award, from the brought a dissent to formal reduced city his under- had delegate, asserted been who definition adopting the panel was standing that panel, city. majority The by the change proposed concurring, how- delegate labor the chairman changes contemplated by were ever, clear that no made a hard- provide that would except change the ship provided.” so exemption, and the award we, reviewing however, as a importantly, More contract court, language cannot amend ordinance. the new Detroit to include award findings of fact and an made specific has applica- issue to the a non-economic relating such It is not evidence of record. factors and the ble § novo acting as de fill this void job our is for proper course in this matter. arbitrators this via issue to seek a resolution parties that, through failing bargaining, collective 312. of Act invocation Award? Act 312 Economic on an
VI. Interest appealed have the DFFA the DPOA and Both interest on the arbitra- denial of the trial court’s itself is Since Act 312 economic award. panel’s tion interest, and the the DPOA subject silent on 19.4, 438.7; MSA MCL appeal their DFFA base 600.6013; MSA 27A.6013. as MCL as well inapposite find MCL 600.6013 to be We statute part, In relevant at bar. situation provides: *72 money judgment any allowed "Interest shall be action, calcu- interest to be such in a civil
recovered rate of complaint at the filing from the date of lated * * supplied.) (Emphasis per year 6% 408 Mich by Opinion Williams, The Act 312 arbitration is not a "money award judgment action”. recovered a civil MCL 600.6013, part Judicature Act Revised apply does not to compulsory interest arbi- preamble tration sector. instead, concern,
Revised Judicature Act states its
to be with
"organization
such matters
as the
and
jurisdiction
of the courts”
"forms and
attributes of civil claims and actions”. Our reason-
ing
analogous
context
disallowing
an
compensation
interest
claim on workers’
award
made under MCL 600.6013 is here valid. Cf. So-
Roberts,
(1975).
13;
lakis v
395 Mich
We also find MCL 438.7 to an inappropriate statute, vehicle for the granting interest. That in pertinent part, states:
"In all express actions founded on contracts or im- plied, any whenever in the execution thereof amount in money liquidated shall be or ascertained in favor of verdict, party, referees, either report of award of arbitrators, court, or assessment made the clerk of the byor any other mode according of assessment law, award, lawful, verdict, shall be report, unless such aside,
or assessment shall be set to allow and upon receive interest such so amount ascertained or liquidated, payment until judgment thereof until * * rendered; shall be thereupon (Emphasis sup- plied.) noted,
As the trial court an Act *73 501 v Opinion by Williams, J. contract, not "founded” on a but is proceeding making of a purpose as very instead has Solakis, Thus we find the rationale contract. So- Act 312. supra, ill-suited the concerns lakis, earlier decision Wilson construing our Co, Lead of National 358 Doehler-Jarvis Division v (1960), held MCL 100 NW2d that 510; Mich statute under which appropriate 438.7 was on a award. compensation interest workers’ grant Solakis Court satisfied require- "contract” to a finding right of MCL 438.7 that by ment contractual compensation award was workers’ out of the contractual relationship since arose Here, employee. conversely, employer between existing dependent already an Act is relationship employer between contractual Indeed, 9 of the act its existence. employee for introductory phrase provides in its expressly no even there is it must be considered "[w]here Furthermore, as parties”. agreement between case, will present an Act award often an arbitration until by not be issued agreement bargaining collective parties’ previous contract) (or imposed Act 312 has al- statutorily ready expired. persuasive argument do find entirely
Nor we 312 contract can statutorily imposed Act contemplated by itself serve as "contract” contract, as terms of MCL 438.7. The Act 312 not, MCL panel, required issued is 438.7, to the extent one that has been executed or ascer- money liquidated that an amount Further, proceeding cannot be an Act 312 tained. very purpose a contract since its "founded” on make a contract. under sum, provision In statutory we can find no Mich Opinion Moody, Jr., Blair grant portion interest on the economic panel’s award.74
VII. Conclusion As to two major posed issues at the outset of (1) opinion, we conclude: amended Act 312 does not include an unconstitutional delegation of *74 (2) power; considering disputed award in accordance ruling judicial with our review requires under the act 12 to be read in conjunc- tion with 8 and we find that —with the excep- §§ tion of the residency hardship exemption —the complies award with the requisite factors and is supported by competent, material and substantial evidence on the whole record. As to the issue of interest, we conclude that statutory support grant of interest on Act 312 arbitration awards absent; is interest is therefore denied. respect With to the home rule and equal protection claims discussed footnotes 14 and 15 supra, we con- clude that subjects these have been resolved by precedent adverse to the city. costs,
No a public question being involved. Ryan JJ., Moody, Jr., Blair concurred with J. Williams, J. (concurring). We generally Moody, Jr.,
Blair agree with the legal analysis employed this case by our colleague However, Justice Williams. an additional comment with respect to a key portion opinion of the of our colleague Justice Levin warranted.
The lead dissent offers
may
what
be
by
deemed
long
It
question
has
been established that
interest
Michigan
purely
Roberts,
statutory.
13, 19,
2;
Solakis v
395 Mich
fn
(1975).
Key proffered this solution are yields results which system last-offer "[t]he does This conclusion unconstitutionally arbitrary”. or law. No section not follow fact necessarily cited Michigan United States Constitution is or alleged breach. as a basis for this constitutional dissent Furthermore, recognized by it is even for a sound rationale last-offer-system has adoption Legislature and Governor— by promotion by penaliz- private "the settlements enough to ing try those did not hard settle”. who this majority succinctly As was stated 408 Mich Opinion Moody, Jr., Blair v Mutual Automo- State Farm O’Donnell Court Co, bile Ins 543; 404 Mich 273 NW2d (1979): short, judge superlegislature
"In
we do not sit 'as a
legislative
desirability
policy
the wisdom or
determi-
nations’. We sit as a court to determine whether
there
Legislature’s
If
judgment.
rational basis for the
is,
judgment
there
then that
must be sustained:
" 'It
role to decide
is not
this Court’s
whether
enacting
wisely
unwisely in
acted
statute. We will
substitute our own social and
Legislature,
economic beliefs
those
which is
” (Footnotes
people
pass
laws.’
omit-
elected
ted.)
test for
proper
judging
constitutionality
legislation
such as 1969 PA
socioeconomic
act,
police
and fire compulsory arbitration
General,
found in Shavers v
Attorney
402 Mich
(1978):
554, 612-613;
"The test to determine whether a statute enacted pursuant police power comports equal pro- is, essentially, tection Supreme the same. As the United States Agri- Dep’t Court declared in United States Moreno, 528, 533; 2821; culture v L US 93 S Ct (1973): Ed 2d 782 " equal protection analysis, legis 'Under traditional sustained, lative classification must be if the classifica rationally legitimate govern tion itself is related to a ”1 omitted.) (Footnote mental interest.’ and citations present controversy' It is now clear that the main center *76 v Opinion Fitzgerald, J. possess power predicated This Court does declare that judicial arbitrarily whim upon unconstitutionally is legislation arbitrary. certain reason, we this additional concur for Accordingly, Act 312 that amended is with Justice Williams not unconstitutional.
Ryan, J., J. Moody, Jr., Blair concurred with I in (concurring constitutionality). Fitzgerald, constitutional. I also 1969 PA is agree that analysis of other Justice Williams’ agree with However, since I conclude that in this case. issues constitutional for reasons which differ the act is from those advanced Justice Wil- somewhat liams, separately. I write degree view that
I do not subscribe
postulated
can
accountability” which
"political
panel
is the crucial
to the arbitration
regard
constitution-
determining
legislation’s
test
that
is
with Justice Williams
there
ality.
agree
I
that
Act, feature, including passes constitutional muster. last-best-offer said, necessary analyze the last-best-offe'r With this becomes standards to insure feature itself in terms of other constitutional there are no equal protection process As we have due violations. seen, equal protection applying concepts due "traditional” rationally process analysis, legitimate legislative purpose, related to last-best-offer feature i.e., promotion private settlements disputes. labor *77 Mich by Opinion J. Fitzgerald, importantly, panel’s More fidel- ity application of the prescribed by criteria will be examined judiciary if of the sought. review award is Not must only the award be upon based the criteria forth in set 1969 PA supported must also be found to be "* * * competent, material and substantial * * evidence on the 423.240; whole record MCL 17;455(40). MSA ' Certainly then there is "accountability”. But what of concept "political accountability” which forms the basis for much opinions my colleagues? I believe it stretches credulity to arbitrators, contend that including the chair- person, "politically are accountable” in the sense are they directly responsible, fashion, in some However, to the electorate. I believe the debate in question case degree of "political accountability” the arbitrators to constitute misplacement of emphasis. appears
What ignored have been on this score is that a "politically accountable” entity, to wit Legislature, has enacted this mechanism for peaceful resolution of disputes. labor Yet an- other "politically accountable” entity, the local government unit of which constitutes "manage- charged has been ment”, with the responsibility putting on the bargaining table its offers to settle the dispute. Must the arbitrators themselves also be directly I "politically accountable”? think not. Such a system might make for expedi- politically ent arbitration awards but it would hardly be consonant with the spirit having an impartial forum binding for arbitration.
Much of the language colleagues’ my dissent- ing opinion recognized should be for what it is reality examination of the wisdom of this —an v Dissenting Opinion Levin, If, than legislation constitutionality. rather of its PA imply, seems to 312 is dissent should call legislation, bad the electorate simply responsible promul- those who were account legislation is unconstitu- gation. argue To because are not "politically tional the arbitrators mark, aby accountable” misses the and does so margin. wide
Although I find the dissent’s criticism of the attractive, I "last best offer” standard to be cannot legislation declare the to be unconstitutional be- think it cause we unwise. *78 conclude, reasons,
1
for these
that
Levin, resolving a collect- panel of an Act the Detroit bargaining dispute ive between Police Detroit. City Officers Association and the of the Court of to granted bypass Appeals We of the circuit court judgment enforcing review a the award.
I 312, Act and the award in city challenges case, It grounds. the instant on constitutional additionally panel’s contends that award wages the economic issues of and of a COLA hardship require- exemption city’s residency supported by competent, ment is not material record,2 substantial evidence on the whole and that 17.455(31) 312; seq.; seq., 1 1969 PA 423.231 MSA et MCL et amended. wages portions city’s and COLA of the contention that (1) unsupported upon its claims that: no record award are evidence DPOA rests supports that failure to award the chairman’s statement sergeants police lieutenants same COLA awarded 408 Mich Dissenting Opinion Levin, refusing of the erred in the chairman economic de- concerning evidence admit relevant the DPOA. mands of disposition: from dissent the Court’s
We 1) on the unconstitutional would hold the act We power prescribe that it ground delegates (law) chairman of the without policy safeguards circumscribing the exercise adequate power. 2) the last-best-offer opinion are of the We rather amended act exacerbates feature the deficiencies which lead us con- than cures unconstitutional, that, the act so clude that the act would be apart from whether entirely feature, without is uncon- unconstitutional this feature. stitutional with 3) Although we hold the act unconstitu- would tional, would, forth in we the reasons set Fire pro- Dearborn Fighters,3 give that decision spective only. effect indeed, day-to- engender "despair, hostility” in frustration and would day police tion to all decisional criteria act’s cannot survive review urges (2) give equal operations; panel’s failure to considera- legislature provided by violated the law”, design not "authorized and city and hence the award was 1963, 6, 28, under Const art which the applicable as the standard. Dearborn, Fighters IAFF Dearborn Fire Union Local No v J.): (1975) 271-272;231 (Levin, 394 Mich NW2d have, legislative holding unconstitutional in on occa- "Decisions acts *79 sion, given retroactivity recognition the necessities been limited of governmental of administration.57 (Lemon Kurtzman, 2105; 602; I v 403 US 91 S Ct 29 L Ed "Lemon [1971]) Pennsylvania’s program statutory 2d 745 nonpublic held to reimburse programs educational sectarian schools for certain secular Lemon violative of the First Amendment. Establishment Clause (Lemon Kurtzman, 1463; 192; L Ed 2d 151
II v 411 US 93 S Ct dollars, [1973]) payment questioned whether the of some 24 million nonpublic already allocated to sectarian schools for services rendered invalidation, enjoined.58 the statute’s should be before II, obliga- majority particularly "The in Lemon concerned with the statute, compensatory by on the tions incurred the schools reliance payments. affirmed the district court’s allowance of administrative, political, "In addition to the almost insurmountable attempt judicial problems by any to that would be created v Dissenting Opinion by Levin, J. police officers have been year For over a wages awarded the increased and COLA paid to call hardship It would undue panel. cause paid. already has been upon repay them what 4) however, consideration, not require does That portion unpaid that we the full retroactive enforce of the award. of the arbitration
The chairman
60)
(see
might
he
fn
instant
case indicated
costly
award less
have made an economic
the last
required
he not been
select
city had
parties.
best offer
one
hardship
readjust
not
undue
It would
cause
imposed
police
renegotiate
and fire
the 'contracts’
unravel and
panels, application
department
decision retroac
hardship
employees
employers and
tively
would
would cause
Michigan
organizations,
their members and
labor
be constructive.
justifiably
presumptively
municipalities
valid statu
relied on a
have
te.59
"57
701;
1897;
Houma,
City
23 L
Cipriano
US
89 S Ct
Ed 2d
v
1990;
204;
(1969);
Kolodziejski,
90 Ct
26 L Ed
v
399 US
S
Phoenix
544;
Elections,
(1970);
US
89 S Ct
v
Board of
2d 523
Allen
State
(1969).
817;
eliminate excess adoption in of a last paid best offer and offset already the excess unpaid against compensation. retroactive would in We remand the awards the instant and the Sergeants case Lieutenants Associa- (see infra) tion case respective panels for ¶ redetermination of the economic awards unres- trained by limitation, the last-best-offer on the made, basis of already the records supplemented in this case the economic evidence previously excluded. a redetermination,
Until such police officers paid should continue to be on the basis and the stay award on payment retroactive amounts should continue in After force. redetermi- i) award, nation of the economic payments current ii) should be readjusted, the retroactive amount iii) should be payable award, based the new that amount should be reduced the amount of but in no overpayment, event should the offi- be required cers to repay any amount.
5) hearing on remand should be deferred until the Court appeal decides the city’s from an award to the Detroit Police Lieuten- and Sergeants ants Association.4 After argument oral in the instant case this Court an entered order holding that case in abey- ance pending this decision.
The chairman of the this case indicated that he persuaded was to follow the decision case that police so officers would not be treated differently than lieutenants and sergeants. merits this case depend thus in part on Sergeants Detroit v Detroit Police Lieutenants & (Docket Ass’n 64065). No. v DPOA Dissenting Opinion Levin, J. *81 the of the city’s appeal merits in that case and there can therefore be no final decision in this case before decision on city’s application for leave to in that appeal case.
A question on which the four partici- Justices (decided Fighters Dearborn Fire pating in June, in 1975) equally were is again presented divided in the instant case. (Justice
Two and myself) would have Kavanagh held the act unconstitutional as an unlawful dele- gation legislative power because it entrusts chairmen of ad hoc panels5 "with the to decide authority major questions public policy concerning the conditions of employment, services, the levels and standards of public and the but, of public allocation revenues” because their appointments are for an only dispute individual continuing have no they responsibility, insu- lates their from review in the political "decision[s] process” which "is not consonant with the consti- tutional exercise of political power in a representa- tive democracy”.6 We added that could vest "authority disputes resolve concern- ing public employees in a governmental officer or agency continuing for responsibility day- 5Although rendered, nominally arbitration awards are at least express dissent, by tripartite panel composed the absence of a of one delegate by party represent interests, 423.234; chosen each MCL 17.455(34), impartial provided MSA MCL pivotal figure and an chairman selected 423.235; 17.455(35), apparent MSA it that the chairman determining the outcome because the members parties by expected identify partisan chosen can be with the positions opinion represent. they always panel’s The chairman writes the opinion and award. It is for this reason that we refer in this being to the arbitration awards as determined the "chairman” or "arbitrator”. J.). Fighters Dearborn, (Levin, supra, pp Dearborn Fire v 241-242 408 Mich Levin, Opinion Dissenting power”.7 delegated to-day "Al- exercise provision present though for hit-and-run law’s pro- constitutionally defective, a law arbitrators is continuing responsible politically viding arbi- demands.”8 meet the Constitution’s trator could that while selection said Justice Williams repre- municipal employee requirements by the chairman sentatives public accountability, might satisfy
the act was constitutional appointment provided for his insofar as chairman Michigan Employment Relations agree parties on a fail to Commission when (as Fighters). Fire in Dearborn was done chairman appointment "proximity He said degree high guarantees process *82 the electoral accountability”.9 political con- said that the statute was Justice Coleman Legislature intended to the
stitutional because necessary "sovereignty to in vest "panel accomplish a is mandates” and public body performing public function”.10 a majority Court, case, a In the instant opinions, separate that the act is consti- concludes speaking himself, tutional. Justice and Justices Williams, that, Ryan if states Moody, required, constitutionally accountability "as a adequate practical exhibits matter” "the scheme accountability’ ’.11
B as viola- hold the act unconstitutional We would delegation doctrine. tive of the 7 J.). Id., p 272 (Levin, C.J.). p (Kavanagh, 8 Id., J.). (Williams, Id., p 324 J.). (Coleman, Id., pp Williams, J., ante, p 480. v Dissenting Opinion Levin, J. to safeguard doctrine seeks delegation or delegation abuse misuse
against excessive law-making power. delegated empowered to The chairman wages, policy subjects on public such formulate retirement, resi- pensions, employment, hours action, health insurance affirmative dency, find facts merely He does not crew size. Rather, he fash- policy.
apply thereto established at hand —at policy for case the public ions on deciding line and drawing policy once If the line the case falls. the chair- side of apply role was find facts and only man’s or, predetermined policy them Commis- Relations Michigan Employment say, "on which side of he decide the all did was sion —if less, perhaps would question the line” —there no, safeguards the absence of which need for the He is this act unconstitutional. believe renders we factors; statutory they are not confined amorphous to allow the chairman sufficiently party either a result favor of justify reach and virtually any issue. having the public policy power prescribe effect to full- only generally delegated of law is agencies. provides This time officers uni- policy development for the structure manner. responsive form and politically power policy-making 312 is novel in Act *83 disper- The ad hoc arbitrators. dispersed among emergence power policy-making prevents sal of is often It intelligible principles. of visible from the separate policy-making difficult award, and no Act fact-finding in individual any develop a coherent any duty has 312 chairman of another the decision body of law or to follow Act 312 chairman. Mich by Dissenting Opinion Levin, develop body failure of policy masks policies
the Legislature’s for responsibility made the chairmen and is its stead not concept with the that public policy consonant developed politically should be in a responsive manner. Constructive political response presup- poses electorate can determine applied. the policy being
This requires delegation policy-mak- power ing be structured in a manner which does emergence intelligible inhibit principles policies guide and coherent the resolution individual cases.
The potential non-uniformity in policy inher- ent power diffusion state ad among hoc chairmen is itself an evil. Just as the Legislature cannot enact laws which treat the same situation differently, neither can it empower others to do so. vague factors malleable enumerated the statute neither confine the power chairmen’s meaningful nor supply legislative statement public policy. Because the factors general are so and the chairman decides how are they weighed and applied, any reasonable decision can justi- fied. The limited judicial provided review safeguard act does not against misuse abuse of delegated policy-making power.
Last-offer exacerbates rather than cures the constitutional deficiencies of the act by divesting the chairman power to fashion the most appropriate award. Unless one of the last offers coincides what judg- chairman’s award, ment is the most appropriate the last-best- offer feature prevents process from yielding results reflecting public policy, the best producing instead a result which may arbitrarily assess a penalty on the losing differ- party measured *84 v Opinion by Dissenting Levin, J. ence between the last offer selected and the award chairman, constrained, if not so would have power Policy-making made. government taken is thus from parties, pos- and conferred on the sibility principled decision-making reduced, is non-uniformity risk of is increased. Be- offer, cause he is limited to the last best chairman can disassociate from himself the award. argue It is unrealistic to the structure is responsive politically when even the chairman responsibility need not take for the award.
Finally, process selecting the revision of the panel chairmen has not altered the basic struc- pub- tural defects of ad hoc interest arbitration of policy. provide before, lic As the structure does consistency decision-maker, for principles of the decisional policy,
or fundamental or for the devel- opment precedent body policy of a from which may be deduced. delegation power policy
A of the to make basic declaring government priorities decisions permissible only and the allocation revenues is delegation where the structure such a does not legislative power being cloak the nature of the policy being made, exercised and of the decisions promotes development uniformity policies application policies developed, and in the of the so accountability and does not mask the of elected officials for the actions of those who wield the delegated power Leg- responsibility and rectify policy judgments islature erroneous authority. made on its Fighters,
In Dearborn Fire we contrasted the prototypical delegation delegation: arbitral making Where "decision in one concentrated person agency exercising delegated power continuing basis, on a can focus on the Mich Opinion Dissenting Levin, and can power exercised manner *85 Here authority accountable. appointing hold the through dispersed decision-making power has been that individual, arbitrators independent many so or author- public to hold official possible any is the dele- in which for the manner responsible ity exercised.”12 has been gated power gov- of obligation primary We added that "[t]he safeguard seek govern. is to We ernment making by Decision government. of authority final effect ex- operative outsider independent an and authority”, final as the government cludes that: requiring unique appointment, method of "It accountability to independent makers without decision unique authority, appointing and the governmental among ad decision-making power numerous dispersal of office, makers, preclud- only temporarily in
hoc decision
consequences
ing
responsibility
for
assessment
services,
public
the alloca-
level of
their decisions on the
government,
and the cost of
public
resources
tion
legis-
delegation of
particular
renders invalid
which
lative
power.”13
II
con-
Legislature’s constitutionally
Implicit
for
providing
laws
to "enact
power
ferred
concerning
public employ-
disputes
resolution
resolving au-
delegate the
power
ees”14 is
Act 312 is unconstitu-
city argues
that
thority.
delegates policy-mak-
it improperly
tional because
arbitrators.
unaccountable
ing power
politically
delegation is-
analysis
Justice Williams’
Dearborn Fire
Id., pp
Const
269.
art
Fighters
4, 48.§
v
p
Dearborn, supra, 260
(Levin,
J.).
v Opinion by
Dissenting
Levin, J.
(1) Act
standards
"are
sue concludes
precise
subject
as the
matter
re-
reasonably
channel
adequately
quires
permits”
principle
under
decision-making
chairman’s
(2)
Shores,15
v
Clair
revised
Osius
St
pro-
chairman
selecting
adequately
method of
accountability.
responsibility
vides
disagree
We
with his second conclusion
question
answers a
which is
believe that
the first
delegation
framed. The
doctrine and
narrowly
too
protect
seek to
principles
other
constitutional
or misuse and abuse
against
delegation
excessive
delegated law-making
power.
practical
"As a
matter”,
adequate
safe-
provide
Act
does not
law-making power delegated
guards respecting
panel.
to the chairman of the arbitration
A
rooted,
delegation
doctrine
at
least
*86
in
part,
provision vesting
the constitutional
in the Senate and House of
"legislative
power”
Representatives16
and reflects
fundamental
that
be made
premise
democratic
law should
representatives
people.
chosen
The his-
by
by
attempts
of the doctrine reflects
to reconcile
tory
precept
governing
with the
complexity
re-
process.17 Legislative
frequently
declarations
as-
quire
interpolation
every
interstitial
(1956).
Shores,
693, 698;
Osius v St Clair
344 Mich
pect of every regulation. jurispru- delegation much state the 1950’s
By that a concept around the crystallized had dence guide "standards” must articulate legislature power.18 exempli- delegated the exercise of Osius19 fies that mode of analysis. California,20 Mr.
Writing in in Arizona v dissent test: purpose of this explained Justice Harlan legisla- granted by the principle authority "The two by adequate limited standards serves ture must be separation of preserving vital to primary functions First, it insures powers required by the Constitution. society will policy decisions our that the fundamental body appointed an official but be made not Second, people. pre- immediately responsible to becoming merely an exercise judicial vents review from large providing the courts with some measure at against judge
which to the official action that has been challenged.”
B to be sound. The objectives We believe those standards judicial adequate statutory search has, however, assuring legis- proved ineffectual policy for "fundamental deci- responsibility lative delegated and in structuring sions” exercise power. Davis, leading
Professor advocate of acknowl- delegating edging necessity propriety administrators, has force- power to policy-making (1st 2.07-2.08, ed), Davis, pp Treatise §§ 18 1 Administrative Law *87 supra, p 101-108; Cooper, 1 54. 19 Shores, supra. Osius v St Clair 20 California, 546, 1468; 626; L Ed 2d Arizona v 373 US 83 S Ct (1963). v Dissenting Opinion by Levin, fully criticized the standards test,21 has argued persistently and influentially that the more appro- priate inquiry whether the totality of standards and safeguards surrounding the delegation of legis- lative power sufficiently protects "against unneces- sary and uncontrolled power”.22 discretionary
Other commentators, calling for the doctrine’s re-emergence in the federal sphere, have empha- sized its underlying function of guaranteeing ulti- mate legislative responsibility for the formulation of public (law).23 policy
Thus, the delegation doctrine is not today mono (1st 21 1 ed), Davis supra, 2.07, pp § Indeed, 102-105. Professor Davis criticized Id., Osius specifically. pp 102-103,108-109. Davis, 22 1 (2d Administrative ed), Law Treatise 3:15, p See, § 206. also, id., 3:14, pp 204-206; (1st § ed), Davis supra, 2.15, pp 148-151. delegation "[T]he doctrine retains important potential an as a check on the exercise of unbounded standardless discretion admin agencies. istrative core, At its the doctrine is based on the notion that agency action must occur within the context of a previ rule of law * * * ously by legislative formulated body. "* * * Congress When is too divided or uncertain to articulate policy, it is no doubt pass easier to organic an statute with some vague language about 'public interest’ which agency, tells the effect, get job done. But while this observation is no doubt correct, it seems to argue me to vigorous for a reassertion of the delegation doctrine against rather than argument it. An letting for experts the cannot decide people’s when the representatives are uncertain agree argument is an paternalism against democracy. As Justice argued, Brennan has " '[FJormulation policy legislature’s is a primary responsibility, entrusted to it electorate, and to Congress the extent delegates authority under standards, indefinite this policy-making function is passed on to agencies, other often not responsive answerable or degree same to the people [citing Robel, United States v 389 US 276; 419; 88 S Ct 19 L (1967) Ed 2d 508 (Brennan, J, concurring)].’ "The whole reason we broadly have representative based assemblies require is to degree some governmental consensus before action Wright, occurs.” Beyond Discretionary Justice, 81 Yale L J (1972). 583-585 See, also, Ely, Democracy and Theory Distrust: A of Judicial Review (Cambridge, Mass: Press, Harvard 1980), U pp 131-134; McGowan, Congress, Court and of Delegated Control Power, 77 Colum L Rev (1977). *88 Mich Opinion Levin, Dissenting J. that Cooper has "demonstrated Professor
lithic. determin for test’ 'true a devise possible to not sus be delegation will particular ing whether enumerating the all articulating and tained, one In response.[24] judicial the motivate that factors advantage 'weighing the courts, analysis, final the involved,’[25] hazards against the delegation [the] of conse the analysis whether of pragmatic make toas undesirable so delegation are quences of judicial intervention”.26 require legis- range may from involved hazards policy-mak- abdicating its or parting with lature’s ing injustice or arbitrariness of risk role forge coher- delegate’s failure resulting from of day-to-day exercise guide the policy to ent power.27 delegated delegation of challenged reviewing a court A agree, examine should, we power legislative provided been have adequate checks whether action. official arbitrary uncontrolled against supplant however, cannot, inquiry an Such legislatively devised inquiry whether basic action —considered official for framework goal fundamental application —secures responsi- legislative preserving delegation doctrine: policy. bility determination "if state said has Brennan Justice Mr. compet- among choices exerted,” the power be tois ordering theories ing economic social life govern- of state organ responsible by a made be "must may be best not, very are they if For
ment. supra, pp 73. Cooper, 24 1 25 Id., p 53. J.). (Levin, pp 246-247 Dearborn, supra, Fighters v Fire Dearborn supra, pp Wright, 37-42, pp supra, Cooper, 27See, generally, 585-591. v DPOA Opinion by Dissenting Levin, exercised, upon not power will state hoped for is that people of the by the choice made any social the basis choices of social the basis merely on State, instead but official wield- state particular the whim made at supervision of this effective If there is no power. ing the consistency decision, process amount it can to insure ours But by whim. government nothing than more laws, government 'termed a has been *89 Marbury Madison, US Cranch) 137, 163; 2 (1 v [5 men.’ supplied.)28 (Emphasis (1803).” L Ed HH HH Fighters 312 Act that we said Fire Dearborn In delegation "because doctrine violative was fact, insulate and, does designed to insulate is decision-making process from results the process”.29 political We accountability within view. to that adhere does
Accountability requires structure a intelligible principles emergence of inhibit not guide policies the resolution coherent possibility constructive cases. individual 1454; 183, 250; L Ed California, 91 S Ct 402 US McGautha v (1971). 2d 711 jury constitution- holding could a was that short-lived McGautha’s impose death ally penalty. the Fourteenth with unfettered discretion be entrusted upon Process Clause the Due relied Brennan Mr. Justice principles forth set as the source Amendment text. Comm, supra, this Court divided v Natural Resources Westervelt In consti- delegation finds doctrine question whether 3-to-3 over separation of process as concepts as well due support tutional powers. I argued that that opinion which signed Justice Williams’ reopen debate my is not Although intention proposition. my acknowledge conclusion case, that I must complex issue in 312 power reflects concern delegates legislative improperly Act as as process well adjudication due denies of ad hoc that belief bility method political adequately accounta- assure not does that the method legislative the decisions essentially nature disguises being made. J.). (Levin, p Dearborn, supra, Fighters v Fire Dearborn 408 Mich Dissenting Opinion by Levin, political response presupposes that the electorate and being can policy determine the applied. Act 312 arbitration policy- novel making power dispersed among hoc ad arbitra- prevents tors, which emergence of visible and intelligible principles. safeguards For this reason regarded generally adequate in the context of delegations agencies to administrative do not as- accountability sure in this context.
A Act 312 arbitrators policy. formulate components dispute factual of a between a city police fighters and a or fire union and the term "arbitration” policy-making obscure the com- ponents of the arbitrator’s decision and the safe- guards requisite to constitutional exercise of dele- gated policy-making power. The arbitrator decides only particular whether the controversy is on one side or another line, of a but where the line is *90 drawing be drawn. In although guided line, the by statutorily prescribed standards, he decides public policy in the law-making power exercise delegated by Legislature. to him the
We Fighters: observed in Dearborn Fire "When term, the same ’arbitration,’ here is used in different contexts, analysis may become blurred. While both 'interest’ 'grievance’ arbitration and arbitra- tion case disputes, concern the nature of dispute in one is considerably different than the other. "Grievance arbitration disputes concerns arising un- der agreements written negotiated agreed upon by parties. grievance In arbitration, the labor arbitra- tor acts judicial in a quasi-judicial capacity. He determines the facts and seeks interpretation an of agreement in accord with the understanding of v Dissenting Opinion by Levin, parties gleaned from writing relation- ship. "In interest arbitration, the functions and preroga- tives not the arbitrator are significantly different. He is bound the agreement or understanding parties. He does not interpret contract, a he makes one. He imposes then concept his of what 'agreement’ ought to be on the parties.” (Emphasis original.)30 in The notion that an Act 312 merely arbitrator is deciding dispute a is inaccurate. "[H]is decision does more than resolve the differences between the parties. It public affects the allocation of resources, public provided level of services the commu- nity as government. a whole and the cost of It also precedents establishes affecting the terms and con- public employment ditions generally in both the directly-affected government”.31 and other units of
30Id; pp 254-255. 31Id., p 263. Grodin, Aspects See Political of Public Arbitration, Sector Interest 678, 687-690, (1976): LCal Rev "Those who favor the use of arbitration to disputes resolve interest public primarily sector see it as an negotiating extension of the process and evaluate it on the primarily basis of its effectiveness * * * adapting process. to that There is an obvious tension between perspective that administrative and one part which views arbitration as of an implementing mechanism for governmental policy regarding wages and employment. conditions perspective One sees the arbitrator essentially private as an person happens who to be resolving dispute involved' a concerning public entity; the other sees the agent arbitrator as government an primarily involved implementing public policy.” In addition to those states recognized legislative/ have political content of dispute sector by adopting resolution Fighters political Dearborn Fire (see accountability argument discus- p 566), also, sion at Schryver see Schirmer, of v 352, 355; 84 SD 634, (1969) (“[T]he NW2d and fixing municipal salaries of officers employees legislative function.”); State ex rel Everett Fire Fighters, Johnson, Local No 350 v 120-121; 46 Wash 2d 278 P2d (1955) (invalidating providing local initiative binding saying against delegation "[t]he rule legislative authority or applicable whether the law is legislature enacted *91 initiative.” "Here the council stepping be would out of the picture entirely and the arbitration board performing would be 410 408 Mich 524 Opinion Levin, Dissenting ex- to cut possible or prudent not be may "It level is a There personnel. or reduce penditures safely cannot fire services and police below * * * governmental the from Viewed reduced. be citizens/ the of perspective the from perspective, legislative-political.”32 is decision the taxpayers, B the effect having policy prescribe to power full-time to only delegated generally is lawof a struc- provides This agencies. officers a uniform policy of development ture manner. responsive politically and that assert writers some While long so others policy making entrust may devel- delegated is power whom one the exercise guide principles meaningful ops would others cases33 in individual power pro- be direction policy specific more require all discussions virtually Legislature,34 vided council.”); Bagley v responsibility of the law, which, by is the function 668; P2d Rptr 553 22, 25; 132 Beach, Cal Cal 3d 18 Manhattan governing might be established (1976)("Although standards 1141-1142 delegate might func- city council compensation and fixing of the tions standards, act ultimate those application of relating to the legislative in compensation fixing applying the standards of character, invoking council.”). discretion binding agree to submit city may not is that general rule ex agreements absent bargaining collective interest an so would to do approval, because statutory or charter press Maryland responsibility. See legislative abdication unconstitutional 12; fn Anderson, 508-509 Md 281 Employees v Ass’n Classified (1977). A2d J.). (Levin, Dearborn, supra, p Fighters v Fire Dearborn invalidating even approach one of contemporary "The they assuring are power, but delegations statutory broadest be subsequent administrative adequate controls accompanied by Urgency, 25 Regulatory Principled Leventhal, Fairness havior.” (1974). 66, 70 RevL Reserve Western Case 3:15, pp (2d ed), 206-216. supra, § generally, 1 Davis See pp supra, 133-134, Wright, 581-587. pp Ely, supra, See *92 v ' Dissenting Opinion Levin, J. problem power question in assume that the reposed continuing responsi- body is some bility, typically agency.35 an administrative pub
Implicit delegation to such a full-time in a resulting agency safeguards are the officer or lic continuing responsibility political from such agencies develop poli accountability.36 Generally through quasi-judicial decision of individual cies pursuant promulgate rules to an adminis cases trative separately published procedures decisions, Their act. policies stating and the enun the facts published rules, ciated, tend to create a their developing responsibility agency a sense coherent body of law. delegation developed in doctrine this con- necessary heretofore been
text and thus has not precedents recog- articulate, to nize, and therefore few safeguards implicit importance continuing pol- exercise of the centralization icy-making power resulting and the mischief from unsupervised dispersal policy-making power. safeguards, generally It does not follow that such implicit, required. are not
C Most courts interest arbitration have sustained considering they statutes done without but have so safeguards when whether the traditional suffice among policy-making power dispersed ad 35See, e.g., Wright, supra, p 583: core, agency "At its on the notion that action the doctrine is based previously must of a rule of law formulated occur within the context legislative supplied.) body.” (Emphasis continuing regular explain adjudication by body "The re course of quired reasoning upon which its decisions are based which, body precedent from over results accumulation of a California, time, general principles may McGautha v be deduced.” (Brennan, J.,
supra, p dissenting). 408 Mich Levin, Dissenting Opinion A few decisions have invalidated hoc arbitrators. such statutes countability political for the ac- absence of the Kavanagh and I would which Justice required Fighters Fire have Dearborn require. now the same number have would About political accountability not re- concluded quired. *93 The decisions of Act arbitrators involve questions policy, principally the fundamental public allocation of funds. Yet it is left chairman to draw the lines and thus determine govern policy will his decision. which "significantly standards, than act’s rather channeling],” "trenchantly circumscribing]” or panel’s decision-making authority, are suffi- amorphous ciently to allow a confronted (and given justify) with a set of evidence to reach party virtually any result in favor of either on IV.A.l., issue. See Section infra. hypothesize panels
Let us two chaired simultaneously different arbitrators are convened disputes to resolve in two different communities. dispute residency Each involves the same issues: requirement case, In and crew each the union size. upon requirement insists officer no residence and no one-
patrol city residency cars; offers one-officer crews.
Assuming city only ordinance, no relevant two (see 48) (c), statutory § criteria fn inter- —clause (d), ests and welfare of the and clause "comparables” applicable. Suppose to be —seem testimony that higher shows that officer morale would be patrol
with two-officer teams and no resi- dency requirement, "comparable but all communi- v Dissenting Opinion by Levin, J. ties” utilize patrol one-officer cars require officers to reside in the community. One might chairman award patrol two-officer cars and no residency requirement because, in his judgment, maintaining protects officer morale public and important is more than maintaining uniformity comparable communities. Another might chairman find that the data "compara- outweighs bles” any evidence adduced the un- ion because uniformity should be maintained... Two different results, expressing conflicting two policy judgments, would have been reached in effectuating the aim of the act to police resolve fighter fire disputes. labor Yet each of the awards represent would judgment made on behalf of the people of the state37 concerning policy govern should residency staffing requirements. If we significant assume no differences between the communities involved in hypothetical our arbi- trations, impossible to reconcile the two expressions awards as legislative the same pol- icy. If suppose we factual differences ac- counted differing results, we may still know what rule of decision, intelligible what prin- *94 ciple explains the divergent outcomes. No Act 312 any arbitrator duty has to further development the of body coherent of law or to follow the decision of another Act 312 arbitrator. The absence principled of decision-making is inher- ent in the ad hoc structure of the act.
2 This framework, inhibiting emergence the of a 37Justice Williams acknowledges "that the role” of "the Act 312 arbitrators” "is to effecutate a state labor policy.” Williams, J., p 477 (emphasis original). in 410 408
528 Mich by Levin, Opinion Dissenting politi- meaningful precludes law, body of coherent accountability. cal sort the of judgments policy sensitive When upon based not are arbitrators Act made to be said they be cannot principles, any known principles.38 legislatively derived upon based being decided not policy are of questions Because deci- Legislature, the by the instance first the in legislative accessible be must made once sions dele- noted, the has commentator scrutiny. oneAs validity underlying core an "has gation doctrine been have who those requires that that in given from process and given by a selected ultimate make power to the constituency retain made decisions override policy decisions added.)39 (Emphasis others" over- whether uninformed made Legislature is arbitrators Act policy decisions ride only the for made are decisions those because that judgment consistency of Any case. individual might decisions multitude the discernible sheerly fortuitous. may be decision-making a struc- hoc ad from A shift development of arbi- principled providing ture visibility heighten the guidelines would tral principles discernible absence process; effectively su- Legislature from prevents the only also process, but participating pervising and being to scrutinize able public from prevents interest.40 being decided what determined has say that no answer It disputes. to resolve policy is policy and fundamental Act enactment purpose behind sure, central To be disputes, fighter Are police and peaceful resolution was decision policy entirely constitutional fundamental represents a policy nevertheless, fundamental are, other There Legislature. by being resolved —decisions disputes are such being made decisions accountability. political requirement trigger Winter, Un Wellington & Commentary on Goldstein, Book (1973). 603, 608 Rev Cities, L 22 Buffalo ions and Wright Skelly observed: Judge J. *95 v Opinion Dissenting Levin, among power ad policy-making dispersal of policy non-uniformity in of invites arbitrators hoc process, an evil. itself dispute resolution precept state of both A fundamental equal justice concept of constitutions federal basis, clear it is its doctrinal Whatever law. under governance in a consonant it is not that democracy who exercise those for constitutional poli- apply government different powers to situation. same cies that laws enact cannot as Just may differently, neither the same situation treat law-making power. delegated exercise who those empower constitutionally Legislature cannot administrators functionaries, called whether state policies apply of state different arbitrators, to or government ques- such situation same size, action, crew residency, affirmative tions tax reve- wages, pensions the allocation or or protection police, and other fire between nues functions imposed government. rule If the local having community the charac- for a state require be Brighton to officers say, is to of, teristics applied be must same rule residents, then the disparate rules "Brightons”. Otherwise other all Legislature could situation, the same for being applied. enact, are happens a when enough recently what evidence seen "We have major decisions people believe that come to substantial number have been made fabric If the social their consent. without simply delegation must manipulation survive, politics of perfectly natural It is politics informed consent. replaced by any delay conflict attempt substantial congressmen avoid power to the executive available, delegations including broad device democracy conflict to realize we came it is time But branch. delayed long too when policy avoided and cannot be over basic supra, Wright, deferred, explode.” Hughes’ Langston dream may, like p 586. *96 408 Mich Dissenting Opinion by Levin, J. power in the among Inherent diffusion of state potential ad hoc arbitrators non-uniformity in policy-making may function. While a chairman by choose the line drawn chairman, another each is free to may draw may his own. There or not be uniformity. substantial ity difficulty impossibil- or determining policy what decisions have been many made chairmen and the extent of uniformity diversity or policy in state in similar highlights Legislature situations has en- policy-making procedure acted a which does not assure that like situations will be treated in a like manner. Two chairmen faced with identical dis- putes might employ different rules to reach the same or different resolutions. Even if each chair- fully explained man reasoning, his there would be no assurance that the rule enunciated would be applied in future cases the same arbitrator or others. flowing A related vice prin- from the absence of ciples Legislature is that effectively accom-
plishing indirectly that which it cannot do di- rectly: the practical are, creation of what effect, process local If laws.41 designed the arbitral were principles culminate in gen- statements of applicability, eral creating then the act would be general, not local, but laws. legislature pass "The special shall no any local act in case general where a applicable, act can be made general and whether a applicable act can be made judicial question. shall be a No local or special act shall take approved by effect until two-thirds of the members serving elected to and each house majority voting the electors thereon in the Any repealing district affected. act special local or require only acts shall a majority of the members
elected serving to and in each require house and shall not submission to the electors of such district.” Const art 29.§ v Dissenting Opinion by Levin, J.
D We do not wish to be saying understood as may adopt mandatory proce- resolving dure for bargaining disputes. collective Although inability produce prin- observable ciples is inherent present ad hoc structure case-by-case the act, disputes resolution of can be structured consistency so that continuity (and visibility hence amenability legislative supervision) system. are built into the It cannot be said that pre- kind of issues sented Act 312 capable arbitrations are not *97 by principles. resolution agency Just as action can be way undertaken in such a that rules evolve, so might principles develop impasse in the resolution recognize framework. We principles that may such necessity of complex be many in cases. But some of reasoning employed by any arbitrators belies claim that the decision is unique based on the facts of the at case hand. In the case, instant example, appears for that
the reason COLA was awarded is that COLA was thought to be fair in a contract of this duration.42 It is difficult to conceive of a situation to which reasoning that applicable; would not be whatever 42The DPOA chairman stated: "Traditionally, in bargaining, collective proposal a COLA is most persuasive in a long contract of contract, duration such as this that of years, three which certainly long a time in the economics at the present time. Had ruling the final two-year contract, been for a COLA would not have appropriate.” been Opinion Award, p 9. The chairman in the Sergeants case, Lieutenants and whose award figured of COLA prominently in reasoning of the chairman of the panel, DPOA employees said that "maintaining purchasing power of affected legitimate is a of provisions aim the economic of a labor contract” and found that "the cost living of is a more crucial factor” city’s than the regarding claims authority lawful and limited ability to bear the cost COLA. Detroit v Detroit Police Lieutenants Sergeants
& (Docket Ass’n, Supplemental Opinion Award, pp 64065). No. Mich Opinion Levin, Dissenting played no unique are characteristics reasoning. part chairman’s depend agree, on more issues, we would Other charac- analysis factors numerous complex interplay of however, the cases, In such teristics. the terms general be described applicable can factors specific increasingly may into evolve which precedent from through accretion models range some- it is "While situations.43 factual devel- be of decision rule that times inevitable development basis, case-by-case oped aon system under awith confused should decisions rules.”44 without are made continuing abe there important is that isWhat development coherent responsible body for explain the basis duty-bound to principles and that of from different a result when distinction repeat observation our We past is reached. cases pre- "not Fighters would we Fire Dearborn authority vesting Legislature from clude employees concerning public disputes resolve continuing agency with governmental officer day-to-day exercise responsibility for power”.45 delegated
> Act specific consideration to more turn We vast way justifies the in no discretion for some need "But the *98 our in authority is harbored discretionary which unnecessary scope of unfa agency is new an apparatus. While present administrative may dealing, have it is subject with matter miliar from But case-by-case basis. on a a while way for around to feel the tion its decisions.” atten considerable agency concentrate should very beginning, the guide principles to general developing coherent problem of pp supra, 576-577. Wright, 44 p Wright, supra, 594. Judge rules, perceived decision-making without dangers of in a rule agency articulate cannot where in "situations Wright only a agency but is no where there advance”, evident even more hoc decision-makers. of ad number J.). (Levin, Dearborn, p supra, Fighters v Fire Dearborn v Dissenting Opinion Levin, arguments 312 as it has been amended and support constitutionality. in advanced of its
A safeguards The traditional standards, advance — rule-making46 judicial provide no review— meaningful protection against delegation excessive delegated law-making and misuse and abuse of power by Act 312 arbitrators.
Although provided by the factors guides decision-making may satisfy for arbitral inquiry, they traditional standards-oriented adequately protect against do not delegation excessive or unnecessary discretionary power. and uncontrolled they policy-making power Indeed, reveal the arbitrator. "public policy” § statement of l47 is no general
more than a shall directive that arbitrators go disputes. forth and settle Nor do the ranging specific standards, from to the catch- forego- "[s]uch all ing other not factors confined to the normally traditionally which are taken into 46Although agencies government exercising other officers or of state delegated law-making power required promulgate, are after notice comment, policies general application, required arbitrators, practical require they Act 312 nor would it be do (and they long enough may again so because are not in office never office) develop policy. and articulate coherent public policy public police "It is the of this state that and fire departments, ited, right employees prohib where the to strike is law requisite high employees it is morale of such and the operation departments alternate, expedi efficient tious, of such to afford an binding procedure disputes, effective and for the resolution of provisions act, providing compulsory and to that end the of this arbitration, 423.231; liberally shall be MSA construed.” MCL 17.455(31). *99 Mich Opinion Dissenting Levin, coalescing supply of element
consideration”,48 the hearing pursuant held the the conclusion of or "At before identify in panel the economic issues shall the arbitration section dispute, limit as the other its nation which tion further additional submit, parties within such time each of the direct and panel and to each panel prescribe, to the arbitration shall determi- economic issue. The on each last offer of settlement dispute and as to the issues in as to of the arbitration arbitra- conclusive. The shall be of these issues are economic hearing, such panel, days of the or the conclusion within 30 after may agree, parties shall make periods the to which opinion findings promulgate and order a written of fact and written it, upon presented the record made before upon and shall mail or otherwise and their sion. As last offer of settlement more 9. The to it and the issues parties copy thereof deliver a true employment relations commis- representatives the and to adopt issue, panel shall the the arbitration to each economic which, panel, opinion of the arbitration prescribed applicable complies factors section nearly the with findings, opinions to all other issues shall and order as prescribed upon applicable in section 9. This section factors based proceedings only initi- applicable shall be as amended ated 423.238; January MSA 1973.” MCL or after under section on 17.455(38). parties, agreement there or where no between there is "Where negotiations begun agreement looking parties or discus- have but the is an sions agreement, existing agreement of the or amendment to a new employment wage of under or other conditions and rates dispute, agreement proposed are in the arbitra- or amended new upon opinions findings, follow- and order tion shall base factors, ing applicable: "(a) authority employer. The lawful "(b) parties. Stipulations of the ability "(c) financial and the and welfare of The interests government those costs. unit of to meet of the "(d) employment Comparison wages, hours and conditions of the proceeding employees involved in the arbitration employees per- employment wages, forming of other hours and conditions generally: employees and with other similar services “(i) comparable public employment in communities. In "(ii) comparable private employment in communities. In services, "(e) commonly goods average prices for consumer living. known as the cost "(f) employees, compensation presently received The overall vacations, holidays wage compensation, and other including direct time, hospitalization pensions, insurance and medical excused benefits, continuity stability employment, all other received. benefits during any foregoing "(g) Changes circumstances proceedings. pendency of the arbitration foregoing, "(h) factors, which are not confined to other Such the determina- traditionally normally into consideration taken through voluntary employment wages, hours and conditions tion of . v Dissenting Opinion by Levin, J. policy. They *100 simply are suggested ingredients in a recipe proportions whose are unknown until the product end up served by the arbitrator. In most
cases, particularly in the context of last-offer arbi- tration of economic any issues, reasonable decision justified can be in terms of one or more of § the 9 criteria.49 Those may factors serve to focus the arbitrator’s inquiry they but provide only an illusory safe- guard against -haphazard decision-making. As a practical matter, the has offered the arbitrator little direction concerning what he should consider or how he should reach a decision and the electorate still less assurance that Act 312 arbitration awards will be through fashioned principled, consistent, or process. fathomable two 9 factors identified colleague our * * * the "[m]ost salient legislative directives” are also the specific least in defining their own sub- stantive content and the most amenable to ad hoc definition and result-oriented characterization the arbitrator. (c) requires Factor the arbitrator to consider the "interests and welfare of the public”, but he re- tains the essentially legislative freedom50to decide public what the requires welfare before evaluating what course of action will better serve those inter- ests. In this case, the thought chairman that the public required welfare awarding the DPOA-re-
quested provision COLA because to do otherwise collective bargaining, mediation, fact-finding, arbitration or otherwise between parties, the public in the service or private employment.” MCL 423.239; 17.455(39). MSA 49Most decisions are thus judicial invulnerable to review if reliance on one or more of the criteria is claimed. See IV.A.2, Part infra, for further judicial discussion of review. 50See Westervelt v Natural Comm, Resources supra, p 440. Mich by Levin, Opinion Dissenting Association Sergeants Lieutenants the after would Act through COLA won had performance effective morale "imperil noted chairman public”.51 protection *** public welfare "interest services quality course, include, of would men- no made but supplied) (emphasis delivered” ser- quantity interest public tion man- police reduction i.e., delivered, vices cost services city other power Under necessitate. might COLA officers’ police selectively manner in this free was he act affected considerations determine welfare.52 *101 of ability "financial the of speaks (c) also Factor The costs”. those meet to government of unit the said: DPOA the of chairman in proved city the has nor [pled] not has city "[T]he very has, but pay, inability to an sense traditional the but pay to inability pleading not said, it is specifically 'limiting aas city the of condition financial the rather difference the subtle, but may difference The factor.’ position, ain not was the since fundamental is debated, to and introduced having been not budget the bymet city were the of needs other what ascertain importance the relation spent already funds those future the of funding for necessary amounts the and panel.”53 this of award Award, 22-23. pp and Opinion and "interests the and morale police relationship between The is 9§of face the from apparent public” is the of welfare the implications interest public the than certainly self-evident less other sacrifice the or retain afford city can officers number city services. panel observed: DPOA of the chairman The minds uppermost are welfare interest "The context in this constitutes what question panel but of the Award, p 22. Opinion public.” welfare interest 53Id., p 23. v Opinion Dissenting Levin, J. suggests city’s that a claim of chairman thus wage inability pay union’s will not demands the asserted receive serious consideration unless inability is absolute. posi- significance city’s financial
To attach to a bankrupt city only payment if would tion equa- effectively to eliminate factor from single arbitration award tion. Seldom will a budget. city entire threaten to exhaust assumption demonstrates an chairman’s statement budgeted presumptively are that other items police fighter priority fire lower than or salaries provide additional funds to and can be sacrificed fighter proto- police and fire demands —the meet only type of a decision which should be entrusted body.54 politically to a accountable official No specific guidelines making this determination provided might are opt the act. Another chairman policy integrity
for a which considers fiscal importance. city paramount "comparables”—is unspe- Another also factor — guide the chairman’s evaluation cific and does not implicitly him of the evidence because it accords determining complete what are "simi- discretion "comparable lar communi- services” and what are may accept parties’ ties”. While the chairman stipulations regard, in this two chairmen con- *102 Sergeants panel squarely The chairman of the Lieutenants and recognized reality: capable panel recognizes city that the is restricted and not "[T]he raising increasing beyond taxes or its revenue what is stated in its budget. question presented by exhibits and this arbitration is The wages proportion budget and what of the total will be allotted for Sergeants. panel for Police and benefits Lieutenants money recognizes budget which the that the is a maximum amount budgets city spend subject supplementary and has to to occasional many budget budget spent can in different revisions and that ways. recognizes city if officials can limit also declaring budget scope limitations, panel’s authority simply by of an arbitration conducting purpose arbitra- there often would be no for Award, proceedings.” Opinion pp Supplemental tion and 9-10. Mich Dissenting Opinion by Levin,
fronted could identical evidence either give controlling weight it or exclude from con- depending upon sideration, of each readiness validity comparison. to concede as a basis for striking pliability A illustration of the of this appears opinions criterion in the successive chairman the Act 312 arbitration between the City of Detroit and the Detroit Police Lieutenants (see infra), Sergeants V, Association Part was central to decision in COLA award original opinion this case. The chairman’s wage entirety: award on the issue stated in its "The Associationlast offeron salaries members of bargaining unit is reasonable and not out of line police departments with other in other settlements comparison It also not the private persuasive cities. out of line with during past year. sector settlements No evidencewas offeredto the to warrant parties agreed that the settlement to which the during 1974-77contract not be continued the 1977-80 contract. panel adopts wages proposal.” "The the Association Sergeants Ass’n,
Detroit v Detroit Police Lieutenants & 64065). (Docket Opinion p Award, No. Following sup- remand the circuit court for plemental findings relating the record evidence to applicable § factors, the chairman in effect upon wage disavowed his earlier ments in other cities. reliance settle- Although parties had stipulated regarded that certain cities would be comparable, supplemental opinion and award gave overriding importance maintaining compensation provided by previ- real level of negotiated agreement virtually ous, dismissed "comparables” all evidence on introduced both sides: *103 Detroit v DPOA Dissenting Opinion by Levin, J. "[T]he finds additionally that there has been no
evidence submitted as to what Sergeants and Lieuten- ants do in those 'comparable’ communities. "Since the panel finds that the surveys, without relevant testimony regarding the function of per- those represented sons in the surveys, are less persua- than
sive with regard to whether increases in wages should granted on the basis of those surveys, the panel must place great emphasis on the fact that prior collect- ive bargaining agreement was arrived at by mutual agreement and a meeting of the minds. The panel finds that with regard to those surveys the fact that prior agreement was mutually agreed to by parties most relevant when considering the comparable data submitted.”
The chairman thus initially indicated considera- ble reliance on "comparables” in reaching his decision only to dismiss the same evidence in a later opinion because no testimony established the functions of lieutenants and sergeants in cities the parties had agreed to regard as comparable. This change of position exposes the act’s failure to give meaningful guidance or assure a measure of con- sistency in the reasoning of the same arbitrator, let alone different arbitrators.55 The remaining 9§ criteria are perhaps less pro- tean but still incapable of imparting direction to the process of arbitral decision-making. (a), Factor the lawful authority of the employer, is often developed in terms of the city’s ability to raise revenues and thus becomes ancillary to the finan- cial ability component of (c). factor (e) Factors (f)—cost of living and present overall compensation 55 Requiring proponent of such part evidence as prima facie case to establish comparability of function of identically titled employees through testimony, or job even descriptions, substantially reduces the practicality of introducing evidence of "comparables” and is arguably inconsistent with an apparent legislative intent to encour age use of such evidence. Mich by Levin, Opinion Dissenting signifi- but enough reference *104 clear —are Is inflation? pace keep wages Must cance. May arbitrator an encouraged? legislatively COLA (b) Factors pay cut? calling a for city offer a award changes in parties of (g) stipulations and — of pendency during the factors other any of course particular on proceedings depend the of — (h) is factor content, and their for proceedings any of for consideration leaving room open-ended, into traditionally taken "normally or factor other wages, hours of determination consideration through collective employment” of conditions (and for or mediation bargaining, in determin- discretion arbitral broad of exercise description). that fits a factor ing whether short fall § 9 criteria that point not is The subject precise as reasonably being "as need The permits”. requires or matter that every circumstance identify attempt not fire police or aof upon resolution might bear univer- a provide impasse or bargaining fighter factors various weighting the for formula sal grand calculation single a into combining them re- correct compel chairman will make arbitrators Act point is The sult. basis hoc ad an decisions legislative-political although directs which, framework a within considerations, specific several attention their maker, consistency decision provide for not does policy, or fundamental principles decisional the from precedent body development of may deduced. policy Act provided review judicial dele improper exercise against safeguard judicial scope power. policy-making gated v DPOA Dissenting Opinion Levin, J. provided review 12 seeks only to confirm that § panel’s decision supported by "competent, material and substantial evidence bn the whole record”.56
Justice Williams would require that the chair- man’s finding opinion reflect consideration all applicable 9 factors. But such a requirement § provides no assurance that decisions made with reference 9 "standards” will evidence consistent use of intelligible principles of broader application than particular case.
As our colleague’s opinion this case illus trates, the act provide does not for meaningful judicial review of questions. substantive The statu torily prescribed general standards are so that any reasonable decision can be justified. In the ten *105 years Act 312 operative, has been not one decision of an Act 312 arbitrator has been reversed by the Court of Appeals or this Court on a substantive quest ion.57
Given the likelihood of record support for any reasonable decision the chairman might reach, affirmance of the award is assured unless chairman has considered evidence outside the rec- ord or employed decisional criteria not contem- plated statute. As we said in Dearborn Fire Fighters: disputes "Most employment present will a
wide range of reasonable alternatives each of which is supported by 'competent, material and substantial evi- dence on the whole Providing record.’ judicial for modi- 17.455(42). 423.242; 56MCL MSA 57Justice Williams inquiry cites a New York case which frames the "any on review as whether apparent basis for conclusion is [the arbitrator’s] specified to the court” or whether "the criteria in the * * * good resulting statute were 'considered’ in has a faith and award 'plausible 153, 158; Coffey, basis’ ”. Caso v 41 NY2d 359 NE2d (1976). 683, 686 Mich Opinion Dissenting Levin, supported is not a not so few decisions fication of those accountability political of the review for substitute choice alternatives.”58 reasonable between can be may arbitrariness ask how even One decision-making un- are rules of if the detected o.rdinarily arbitrariness determine known. Courts by objective comparing with some conduct official applied principles be should a set notion of how weight assigning § 9 given If case. a to factors given they determining in a how interact chairman, judgment of the case rests having positions any two between makes choice he practical matter, support final. evidentiary is, aas justify may example, able to a chairman For awarding any cost-of-living case allowance a adjust- testimony an that such is offered where employees prevent necessary to is fair and ment compel- losing ground inflation, however from produces employer on the ling the evidence factors. other opinion fails ade-
Moreover, if a chairman’s explain quately of the in terms his award judge an award is such criteria, whom circuit ampli- likely appealed the matter to remand explanation findings chair- fact and fied outright. reasoning As- reverse rather than man’s utterly party prevailing suming did can, selec- record, arbitrator fail to make § criteria, to the evidence tive reference inflate his like a balloon: initial conclusion *106 message expands space but it consumes the same. remains bears judicial opportunity review
Ordinarily, arbitrary against protection provides a measure apply rules different would which decisions J.). (Levin, Fighters, supra, p 268 Dearborn Fire v Dissenting Opinion by Levin, J. However, the decisions of Act 312 same situation. required published, are not to be arbitrators body prece- prevents the accretion of a visible Moreover, are while Act arbitrators dent. required findings they fact, have not
to make might impose required although this Court been — requirement in the construction of the act such a finding. separate policy element from fact —to judicial non-uniformity events, review for In all practicable. policy if is not Even such decisions published, decision since no arbitrator’s were important another’s, more than a court con- non-uniformity could not resolve the fronted with It would not be for the court to make the conflict. conflicting poli- policy judgment which of the two prevail. cies should practical, vein, if
In another we find a not a logical, inconsistency judicial a mode review uphold hardship which refuses to the award of a requirement exemption residency because panel "comparables” although did not consider party comparisons, yet refuses neither had offered although to remand the award on economic issues clearly excluded relevant evidence which choosing DPOA’s, indicated that the rather than city’s, last offer on economic issues would cost agree- parity $24,000,000 because of an additional Fighters ments the Detroit Fire Association Sergeants and the Detroit Police Lieutenants considering hardship exemp- Association. In tion issue, it is must solicit said that parties they initially if fail to evidence from the applicable factor, introduce evidence on an though even produce may re- their failure to evidence particular factor flect a consensus that inapplicable. considering rejec- In the chairman’s proffered however, evidence, tion of relevant *107 Mich Dissenting Opinion Levin, dispositive inquiry appeal is framed whether proffered of the exclusion exhibit "was so * * * egregious as to cause unsup- the award be ported competent, material and substantial on the evidence whole record”. approach
The latter implies long that as as the record panel before the contains support for its conclusions, evidence, the exclusion of additional material, no matter how is of no moment.59 This is consequence the latitude accorded the chair man in weighing considering evidence on the 9 factors. If the chairman ig has discretion to evidence, nore admitted properly power a court’s assign error the erroneous exclusion meaningless. relevant evidence is
B provides The act to each economic "[a]s issue, the arbitration adopt shall the last * * * offer of settlement which more com- nearly plies with the applicable prescribed factors in section 9”.
The chairman thus must choose a party’s pro- posal issue; on each economic he is forbidden to Justice Williams cites remarks made the chairman at the ruling question excerpts opinion, time of the from his written precisely but none of these statements indicates that he knew what acceptance city of the DPOA’s last offer would cost the as a result of parity agreements fighters. with the LSA and fire And while it is true, certainly stated, "escape as the chairman that the cannot history parties made”, the a ment equally themselves have it is true that proper govern ability assessment of "the financial of the unit of recognition to meet those costs” must include of all costs proposal. inherent in either clearly assigned city’s Because priority the arbitrator a low to the position decision; making remanding financial his the economic light improperly award for reconsideration in excluded exhibit inevitably However, regard appropriate would make determining be futile. I it as specific objection analysis colleague employs that our proper disposition light of the case in of the chair- City’s man’s exclusion of Exhibit 30. v DPOA Dissenting Opinion by Levin, J. may fashion his own award. Both last offers be far may from what the chairman consider the best power stops point Nevertheless, result. his at the choosing options of may the better of the two offers. His inadequate, hopelessly but choose he must.
Implicit every in decision, even on economic judgments. policy judgment issues, are must wages be made whether should be increased with- regard productivity only out to increases or to improved efficiency, they the extent of whether compensate should be increased to for all increases living only portion in the cost of or or not at all. relationship wage The fringe between increases and pensions,
benefits, leave, vacation and sick holidays, employment assigned hours of and tasks must also be determined. making city
In a last best offer the union and implicitly policies they both enunciate which regard judgments. advocate with to these In re- quiring pick the chairman to the offer which nearly complies applicable "more with the fac- tors”, the in effect forces the chairman adopt policy may to which be non-uniform compared policy applied similarly to situ- ated communities. The likelihood of non-uniform- ity by is exacerbated the last-best-offer feature because the chairman cannot formulate his own policy policies but must choose between advo- parties. cated policy
There can be no administrative when the administrators cannot fashion the rules. The vital- ity any policy might develop that a chairman is parties’ they by hands. If chance learn of policy and fashion their offers in accordance policy having it, stands a chance of some Mich Opinion by Dissenting Levin, J. policy or feel safe parties no discern can If the
life. they the other certain rejecting are it because naught. is policy If there also, the is will side inadequate parties policy, have discernible no information fashioning their guide them devising strategy offer that a last bargaining expect find reasonable they chairman can they adopt except discern can what and individual preferences. personal chairman’s policy chairman individual each is no If there but also only is offer best which decide will what no If there of "best”. measure is the award, an policy to evaluate known there where sum, judicial In review. no effective can be power fashion no has the chairman parties’ last between choose but must award development principled no offers, can be there govern case as each policies in all cases parties’ offers. last shaped and determined *109 political reduces further Last-offer responsibility accountability. the to reduce It tends required longer no who the chairman in most he thinks which the result announce accord Legislature by statutory the declared factors the with policy particularized choices the isHe implicit he makes. decision whichever only issues, required, rather, to economic nearly complies "more result announce Having relieved applicable been factors.” fashioning responsibility for responsibility no real award, he take need the best the chair- can, as did The chairman the result. from case,60 himself disassociate instant inman Legisla the mandate emphasized that under must "It accept of one last offer ture, than no can do more v Dissenting Opinion Levin, J. announced, the result which he himself by inti- if mating that he were not restrained last best result, offer he would reach a different presumably between the last best lying offers.
It shift of from the chair- responsibility parties man to the which advocates find attractive about final offer arbitration: procedure "Under a conventional rarely award party’s position resembles either compromise but is a result,
between parties respond the two. As a both may complaints any to constituent the award should be directed at contrast, dissatisfaction with
the arbitrator. In the final offer arbitrator selects party’s one comparing offer toto after it with the other party’s offer, offering each side considerable opportunity to influence the outcome. This opportunity influence tends to increase each party’s responsibility for the final compared outcome to conventional arbitration.”61 It argue is unrealistic politi- there is any cal accountability when not even the chairman of need take responsibility. Responsibility for the implicit policy has award moved even further Legislature. from the Under the present system falls somewhere between parties who fashion the last offers and the chair- man who chooses between them.
The most striking characteristic of last-best-offer parties. panel might parties wish that had framed different offers or offers that were closer to each other. But we cannot mandate parties what the do.” 61Feuille, (Chicago: Final Offer Arbitration International Personnel *110 Ass’n, Management 1975), p 55. Although referring by Feuille was here to final offer arbitration package pertinent by the observation is to final offer arbitration issue as well. 410 408 Mich Opinion Dissenting Levin, appropri- most of the elimination is the
arbitration it unless excluded option. It is as an ate result one offer.62 party’s coincides aside, question it ais delegation issues Putting con- can Legislature the whether moment of some the itself, delegate, of or its stitutionally deprive public policy. the best to make authority million appropriate Legislature $100 Could the urban, between to allocated sharing be for revenue a last-best- on communities rural suburban encourage the to being purpose the system, offer their reconcile units governmental competing differences? it was announce that Legislature
Could code and for a new criminal hearing proposals proposal the last best to enact planned that issue, being again purpose each controversial to be "reason- contending forces encourage the that would a consensus achieve thereby able” and support? have broad that view inclined We are because take such action constitutionally not could to make best power is power legislative final-offer-by-package and of criticism of other "One contrary completely issue that runs economic final-offer arbitration to the split charge the difference implications that arbitrators splitting the differ prevent from systems arbitrator is that these If, legislative judgment, criteria his should do so. ence when he offering management percent, justify wage but increase of demanding percent, then the only legislative prohibition the final criteria for percent the union is splitting means that against difference his settlement, picks, meet the regardless which he does degree wage-setting to the same in the statute enumerated imposed had he been allowed he would have as the settlement position. compromise select a split should difference believe that arbitrators "Critics who that, implication recognize doing prevented also from so should the extreme least, suggesting other of they one or the are at positions it is Theoretically, middle-ground position. than a sound more Stern, Rehmus, Loewen- this can be substantiated.” doubtful (Lexington, Dennis, Mass: berg, Kasper Arbitration & Final-Offer original). Books, 1975), (emphasis Lexington p *111 v 549 Dissenting Opinion by Levin, J. laws which can result legislative from process. Legislature The legislate cannot itself out of busi- ness before provide the fact. It cannot for law lottery, the result to be determined how close parties the Legislature approach interested the resolution the pick would making if it were the deci- sion. Nor can it authorize an agency officer or upon public policy decide in this fashion. might argued It be examples that Legislature denies ability itself the to make the possible best effecting law without a corresponding doing. benefit in so promotes 312, Act however, effective bargaining by collective forcing par- both present ties to serious settlement offers lest the last offer of the other chosen, side be thereby increases their incentive agree- to reach their own ment and the they likelihood that will succeed. is indeed authorized to encour age bargaining, collective peaceful but resolution bargaining disputes collective is not mandated by the Constitution.63 The constitutionally confer authority provide red permissive therefor obligatory rather than and does not override other precepts constitutional concerning the manner governmental power which governmental may be exercised may imposed.
decisions efficacy Further, binding arbitration as a resolving method bargaining disputes collective depend does not procedure. the last-offer Con binding ventional operated in this state years, for several jurisdictions provide other binding arbitration with the arbitrator free fashion the award.64 Even last-offer enthusiasts 1963, 4, Const art 48.§ Laws, RI Gen seq.; 28-9.1-1 §§ et Ann, Wash Rev Code seq.; 41.56.450 Stat, §§ et Or Rev seq.; Ann, 243.742 et §§ Pa Stat tit . seq. (police §§ 217.1 et fighters); Ann, fire Pa Stat tit (port 563.2 authority); Ann, 34:13A-16(c) NJ Stat parties allows the Mich Opinion Levin, Dissenting improvement conventional over an argue it is an essential arbitration,
binding feature.65 are yields system results last-offer arbitrary.
unconstitutionally *112 policy to encour- may be sound itWhile disputes the the the before of labor age resolution the stage reached, stage, is once arbitration penalize constitutionally Legislature cannot good faith, although proceeding in who, party chairman’s in the offer presented a final satisfy nearly § 9 criteria the judgment did not inability to opponent’s. chairman’s The the as did need the although appropriate award most the fashion to fairer, proposal which, party’s pick one party’s prevailing likely err the still is costly penalty. apt to effect favor, is wage city’s offer, because accept a need than union’s, rather the than reasonable more wage mean appropriate could most the award employee’s standard in an significant difference pro- accept COLA a union’s living. The need compliance the nearly posal more because city’s the could cost the than applicable factors city loses, the the When city dollars. millions taxpayer or reduced taxes penalty onis —more services. difference the dollar case the instant In city’s offers last best union’s and of the
cost wages is substantial. and COLA issues only of which one methods several to choose between (county improvement Ann, 40:37A-96 NJ Stat offer arbitration. final 608; 3d Cal Vallejo, 12 v Fighters Local authority); Union Fire (1974). 507; Rptr P2d 971 116 Cal Stern, supra. 65Feuille, supra; fn 62 fn 61 v Dissenting Opinion by Levin, Sergeants Lieutenants Association case and (which Fighters principle the Fire case on the parity governed disposition will be of this case) contribute to that difference. Had the chair- man been free to announce the result which he regarded most accord with the factors deline- Legislature, ated rather than forced to nearly choose the last best offer which more ac- corded factors, with such the total cost may substantially award well have been less. party’s duplicates
Unless one offer what would appropriate losing party be the most award, the always penalty. pen- will alty incur a The size of the arbitrary, having good- relation no quality bargaining losing bad-faith or the party’s last offer. It is determined the reason- winning party’s ableness of the offer; last appropriate closer that offer is to the award, most penalty, the less greater reasonable, and the less penalty. Having public employee entered field dispute provide binding resolution resolution having law, the force of cannot *113 constitutionally provide arbitrary so for a solution peaceful penalty. While resolution of employee disputes important value, is an some- thing required. less draconian is judicial
Peaceful resolution of has, controversies clogged goal. calendars, court become a social pretrial We have moved from the conference to mediation to arbitration still other alterna- being designed considered, tives are all avoid a parties agree trial on the If merits. cannot on goes jury, a settlement the case to trial. A like an panel, arbitration hears evidence and doc- receives Suppose provided uments. plaintiffs that personal prod- injury,
and defendants in Mich 410 408 Opinion by Dissenting Levin, actions would malpractice medical uct liability and that last best offer of settlement each make the offer announced verdict was jury’s after the final would become verdict jury’s nearest $100,000, is last offer If the defendant’s verdict. verdict $500,000, jury’s and the plaintiffs $300,000, the plaintiff between anything $1 is over $100,000. verdict jury’s If the receive would re- $750,000, plaintiff would $300,000, even $500,000.66 ceive constitutional not survive could system
Such a action, legislative whether challenge. Government when arbitrary even cannot be adjudicative, the arbitrariness rationale for arguable an there is penaliz- settlements private promotion —the enough to settle. not hard try those who did ing C for select- process 1976 amendments Fire following Dearborn chairman,67 made ing a arbitrary Indeed, system arguable such a is more policy applies to the as last best offer because the Act 312 context well as components: wages two An has to the facts. offer (policy) wages and an judgment to be determined to how are as (fact finding). policy At proper award under assessment of the least not determine what drawing question), prevailing last best offer would situation the in the tort action (the applied line in the case rule of law would be only falls on. of the line the case but what side offer and not aware of the last best Act 312 chairman was If the required be if he were what his decision would to state was offers, choosing the arbitrariness between last best restricted requiring regards to be opt he for an award other than what him to apparent. proper would be more 423.235; act, MSA 1976 PA 5 of the MCL As amended 17.455(35),reads: "(1) parties days request 4 dele- from 1 or [§ of a both Within employment from its gated)], commission shall select relations (2), arbitrators, persons provided as panel nominees panel. in subsection impartial or chairman of the arbitrator peremptorily party may days after the selection each Within 5 5-day days after name of 1 of the nominees. Within strike the period, as the remaining designate nominees 1 of the commission shall panel. impartial of the arbitration arbitrator or chairman *114 v DPOA Dissenting Opinion by Levin, J. Fighters, provided any significant have not mea- political accountability sure of pro- in the arbitral cess.
The MERC appoint was directed to establish and panel composed a competent, "impartial, arbitrators reputable
and citizens” of the United Michigan, States and "qualify by residents of who taking subscribing and the constitutional oath office”, affirmation of serve for terms, indefinite subject and are to removal the commission without days cause. request Within seven of a parties from one or both for initiation of arbitra- proceedings, tion the commission submits to both parties persons names three selected from panel of arbitrators to be nominees for chair- panel. man of the party Each is autho- peremptorily rized to strike one of the names days, within five desig- and the commission then remaining nates one of the nominees as chairman panel. of the arbitration practical
Justice Williams finds "as a matter act sufficiently provides as now amended public responsibility accountability” and be- cause these proce- modifications of the selection greatly dure atmosphere "have altered the of ac- countability surrounding the service of arbitration panel chairpersons”.68 We that, conclude while the "(2) employment relations commission shall establish and appoint panel arbitrators, Michigan who shall be known as the employment relations commission arbitrators. commis- appoint sion shall members for indefinite terms. Members shall impartial, competent, reputable citizens of the United States and state, residents qualify by and shall taking subscribing constitutional oath or affirmation may of office. The commission at any may appoint time arbitrators, additional members existing remove members without cause.” is, course, This conclusion consistent with Justice Williams’ opinion in Fighters, Dearborn Fire where he found an arbitrator appointed by the chairman of the publicly MERC to be responsible adequately accountable. *115 Mich 410 Opinion by Levin, J. Dissenting eligible persons the chairman of to become
set of theory panel may have been an arbitration that some arbitrators and the likelihood narrowed panels increased, alter- a chair number will process do not selection in the chairman ations supply necessary accountability it re- because meaningful responsibil- assign impossible to mains ity authority any for the man- official or delegated exercises in which a chairman ner power. continuing panel Constituting of arbitrators a auspices MERC does not localize under continuing responsibility
for the decisions arbi- apparent panels readily link a or establish tration politically accountable between arbitrator continue to be selected elected officials. Arbitrators to determine the terms case-by- of contracts on a basis, tenures as decision makers and their case last disputes long
only the individual so as they remain unresolved were selected agreement or award. assignments panel large enough to allow is persons.69 among large dispersed number
to be guarantee Membership panel of nomi- is no before, selection, all members nation or and as grievance occupations, "non-public” often as have entirely private sector. It arbitrators conjectural the new method of selection whether so as to conduct themselves motivates arbitrators employment their chances of continued to enhance disputes. equally It in the resolution of Act likely fully are members of the that most 8, 1980, January finders” contained a MERC "list of fact 100 As of approximately persons approved Act 312 arbitra the names of tors. v Dissenting Opinion by Levin, occupied with other endeavors are indifferent they ap- whether receive additional Act 312 pointments. places pre- Moreover, since the act expeditious availability mium on may resolution, key determining be a factor in which arbitrators particular are any nominated and selected at time. argued residency It is also the state oath-taking requirements, as well as the indefinite membership term on the of arbitrators— subject promote to removal without ac- cause— countability by encouraging arbitrators to act re- sponsibly. panels The chairmen of Act 312 before *116 Michigan and after the 1976 were amendments taking residents. Oath is more form than sub- stance under the circumstance that the arbitrator "impartial, competent, reputable”. must be It unlikely any is most that arbitrator would be particular removed from the of a because decision. The decisional scheme of the act insures objectively that sponsible, few awards can be labeled irre- light for evaluation of the evidence in of largely § 9 the individual decisional criteria is a matter of judgment. sys- Moreover, the last-offer deciding tem narrows the arbitrator’s role eco- choosing nomic issues to between alternatives, two legitimate of either which will be choice on most records. arguments events,
In all Justice Williams’ mis- conceive the issue. Even if the chairman’s sensitiv- ity impact heightened by of his decisions is personal consequences, his awareness of that cir- provides safeguard against cumstance no non-uni- formity policy political responsive- and lack of ness. may policy
A chairman not even be aware of the Mich by Opinion Dissenting Levin, J. public less is even decision. of his content policy appreciate decisions concern- likely that Act governance an ing when made have been public rather, sees, is announced. 312 decision conflicting controversy highly charged that a allegations resolved has been factual claims decision way The arbitration or another. one jury a declaration than verdict like a seems more oversight legislative rectifi- policy subject cation. pro- system the revised selection It is said accountability” political "high order
duces panel of arbitrators members all because appointed MERC, approved and have been appointed turn, are, in three members whose implausible that reaction It is the Governor. more of some one made to a decision imprimatur bearing of a panelists three-mem- appointed will be gubernatorially commission ber selection Revision the Governor. directed process reality mem- has not altered regard do not the Governor MERC and bers regarded by generally the the themselves, are not responsible citizenry, or accountable Indeed, as we chairmen.70 decisions Fighters: Fire in Dearborn observed *117 regarded un- an be as would intervention "Political 'impar- independenceof the intrusion on warranted by the publication Police-Officers passage in a released 70One Michigan may an indication be read Association unappre process is present in the arbitration Governor’s involvement Responding subject. to a interested those most ciated even required approval be proposal City the Governor’s of Detroit "Bringing into arbitration, the Governor states: POAM initiate impose the would politicize process matters would further hearing decision.” him to make a delay of a allow additional formal An Experience: An Michigan, Ass’n of Act Police Officers (emphasis 1980), p (February, Proposals for Amendment swer to added). v Dissenting Opinion Levin, tial’ decision maker. It would regarded as improper for the chairman of the authority man.”71 higher governmental MERC or attempt to influence the arbitrator/chair- performs statutory duty by
The commission empanelling "impartial” arbitrators. When an im- partial dispute, people arbitrator resolves the they Legis- state, of the if look to the Governor or hardly complain all, lature at process can that a selection large unpredictability with a element of yield did not a chairman who would have reached a different result.
The connection between the chairmen and the Governor or the is too attenuated to provide any political accountability measure the arbitrators’ decisions.
D expect independence impartiality We in a judge grievance arbitrator. But an Act 312 grievances arising arbitrator does not decide under already agreement. acting an Rather, established imposes (legislates) state, for the he decides and employment relationship. the terms of "What judicial power is sound in the exercise of and the quasi-judicial power grievance arbitrator, of the applied when to interest concept
sector, is not consonant with a core of a representative democracy: political power people possess which the their confer on representatives by per- elected is to be exercised (not responsible independent) sons and accountable people through processes the normal representative democracy.”72 J.). Dearborn, Fighters supra, p (Levin, Dearborn Fire v 72 Id., pp 256-257. *118 Mich Dissenting Opinion Levin, J. composed of arbitrators The MERC expe- grievance persons largely with of The undoubtedly within rience. creating system prerogative persons fraternity, allocates which belonging experience, to that that with professionally committed are and who concept, power bargaining to the collective concerning public policy the terms resolve persons employment. public But the conditions of may state decisions make those chosen to process. They political from the not be isolated power only may within a struc- such state exercise predomi- public interest ture which elevates nance, identify requiring for the state those who act primarily align with that themselves competing concerns, to the exclusion interest political provides means which and which process may policy-making effectively influence the upon change policies process decided govern- imposed functionaries of state them as ment. government expected officials, while
It is develop quickening of their sense office, "will transcending responsibility public insular concerns they outside endeavors will eschew and that incompatible appear may public their with to be be or responsibility”.73 temporarily only office, all have
Chairmen, accept employment occupations. from Most outside grievance employers arbitra- unions and labor develop- compatible wholly "That is not tors. ment solitary concern for of the kind of expects citizenry properly of its interest which public officials.”74 expe- professional primary
An whose arbitrator p 269. Id., 74 Id. v Dissenting Opinion by Levin, J. has rience and skill revolved around identifica- *119 tion and accommodation of the interests of two private parties expected pre- cannot be to focus upon public subordinating dominantly interest, the special parties, interests of the his Act where primary profes- 312 service is occasional and his activity sional remains as before.
E arguments We address additional advanced in constitutionality favor of the of Act 312.
1 argued provision It is that of the constitu authorizing Legislature tion providing public employees”75 to "enact laws disputes concerning
for the resolution grant constitutes a "vast” Legislature authority to the to establish whatever might appropriate mechanism it deem for the disputes. employee resolution labor It is noted that at the 1961 Constitutional Convention proposed guage operative amendment to delete the lan provision,
of the forerunner of this offered delegate specifically opposition who stated his disputes parties beyond to "laws settle the * * * parties interested, so that the 2 have party solution”,76 listen to the third defeated. It is contended for a was
that, it was the because intent of the Convention to procedures the choice of leave Legislatures, Legislature
to future appropriate body and determine whether the Court delegation power panels appropriate chairmen of Act is an 4, Const art 48.§ Record, 1961, p 2 Official Constitutional 2341. Convention 408 Mich Opinion Levin, Dissenting representative authority democ in a allocation racy. power government, to deter- In our form of comport acts of the
mine whether the tution is ord indicate that people principles in a consti- enshrined judicial The rec- branch. confided to the does not Convention of the 1961 Constitutional specifically delegates, they if even compulsory interest arbitra- to authorize intended particular approve any method of tion, intended ap- including implementing arbitration, such dispute-by- pointment aon of ad hoc arbitrators dispute § 48 inclusion of art does the basis. Nor delegates or indicate in the Constitution grant authority people to be so intended the pub- expansive the resolution of measures for *120 adopted disputes employee with- could lic out not labor precepts. regard It does to other constitutional Legislature granted power disparage the require by power 4, §48 that that 1963, art Const con- with other in accordance be exercised implicit. explicit principles, stitutional Act 312 unconstitu- that to declare It is claimed provide does not the structure tional because accountability political with be inconsistent would dispute authorization of similar the constitutional 5, 1963, 11, § art in Const settlement mechanisms powers establishing declaring of the Civil and It that the commission Commission. is said Service lacking political conspicuously account- is more ability than the Act arbitrator upholding the constitu- broad Court’s decisions grant authority re- the commission tional legislative delegation quire uphold us to power 312. effected Act v Dissenting Opinion Levin, J. Const art 11, 5 establishes the Civil 1963, § prescribes Commission, number,
Service appointment members, method and tenure of its obligations. powers duties, enumerates its The entire framework is constitutional because contrast, embodied In Constitution. Const upon art relied as the source of 1963, 48, simply constitutional authorization for Act permits providing "enact laws disputes concerning public for the resolution except employees, those in the state classified civil particular service”. No framework for resolu- disputes approved, constitutionally of such tion Legislature may nor is it declared that exer- power regard cise this without to other constitu- principles. tional
Moreover, certain features of the constitutional charter for the Civil Service Commission endow body political that ity a measure accountabil- subject powers policy-making to limited legislative review.
The commission consists of four non-salaried persons, "not more than two of whom shall be political party, appointed by members of the same governor eight years, for terms of no two of expire year”.77 which shall in the same It is as- although ap- that, serted are commissioners pointed by Governor, their extended tenure unlikely responsible they renders it will be or or responsive concept him; indeed, of a bi- multi-partisan body stag- *121 whose members serve gered designed and substantial terms is to insulate expose politi- from, to, the commissioners them accountability. cal may
It be that few commission are members politically they , are accountable the sense that
77 1963, 11, Const art 5.§
562 408 410 Mich Opinion by Dissenting Levin, J. prospects by the desire to enhance their motivated (al- reappointment 8-year term for a second inconceivable). though hardly such situation is continuing responsi- However, the commission’s personnel promotes policy bility consist- for state ency policy of that and en- the determination courages quickening development of "a commissioner’s public responsibility [his] tran-
sense scending kind of insular concerns” and of "the public solitary citizenry interest which the concern for expects properly of its officials”.78 also exercised its constitu- The commission has regulations power to "make rules and cover- tional ing personnel promote uniform all transactions” to comparable treatment of individual cases.79 provides Finally, 11, 1963, § 5 Const art legislature may, by a "the two-thirds vote serving house, elected to and in each members compensation reject or reduce increases in rates of Thus, authorized the commission”. where the integrity implicated, Legis- fiscal state empowered policy judg- lature is override implicit ment rates of in a commission recommendation on
compensation Legisla- if two-thirds of disagree judgment. if ture with that Even power, never has exercised veto 1963, 11, § inclusion the Const art indicates provision contemplates legislative oversight judgment and rectification of the commission’s budgetary component personnel policy. Finally, initiatory it is contended that a 1978 authorizing 1963, 11, § amendment to Const art J.). (Levin, Dearborn, Fighters supra, p Dearborn Fire v Const art 5.§ *122 v Dissenting Opinion by Levin, J. bargaining Michigan for State Police collective sergeants troopers and and the submission of is- bargaining through "to sues unresolved collective binding for the resolution thereof’ "the arbitration provided public police by as now for same law departments” amounts to a ratification fire scheme. Constitution of the Act arbitration presently Compulsory interest poses dangers provided by Act 312 fewer in the varied case of the State Police than municipal cases police fighters. and fire Because there is danger only force, one State Police there is no applied policies simultaneously be different will comparable situations. The arbitrator will be set- implica- ting policy has statewide a state which will be funded the state and tions government. local units of pertinently, approves More amendment concept compulsory only interest arbitration the for the State Police. The has enacted legislation providing compulsory implementing disputes concerning of labor interest arbitration only the State Police.80Neither the constitutional enabling of this amendment nor enactment legislation bearing constitutionality any has on the Legisla- or of Act 312. Just as the administration repeal modify Act ture is free to constitutionality with- of that act is to be decided regard only concerns out the State Police. to this amendment which
F majority "the states that Justice Williams jurisdictions [the considered accounta- which have question] accountability”, bility have found 17.455(81) seq. seq.; et 17; 423.271 et 1980 PA MSA MCL 408 Mich Dissenting Opinion by Levin, the courts which have ruled otherwise "have done so on the primarily distinguishable basis of provisions”.81 constitutional We read cases dif- ferently. *123 he cites Med
In support proposition the first Fire Fighters Medford;82 ford Ass’n v Richfield v 1215, Local No International Ass’n of Fire Fighte rs;83 Arlington v Board of Conciliation & Arbitrat Amalgamated Division ion84 and Transit Un ion v Mercer County Improvement Authority85
Division 540 in inapposite. The statement that opinion to the effect compulsory that schemes are an innovative way avoid dead- locked disputes responsive labor is not to the accountability argument; it clearly finding is not a of accountability.86
As becomes in colleague’s footnote,87 clearer our the other courts did not find one accountability; court argument, misconceived the and the others found that accountability required. was not
The Oregon
Appeals
Court of
did not find ac-
81Williams,
J., ante, p 472.
82
Fighters
Medford,
519;
App
Medford Fire
Ass’n v
40 Or
595 P2d
(1979).
Fighters,
Richfield
Local
v
No
International Ass’n of Fire
1979).
(Minn,
NW2d
84Arlington
Arbitration,
769;
v Board of Conciliation &
370 Mass
(1976).
87Williams, J., fn 53. v Dissenting Opinion Levin, Medford Fire Fighters. The court
countability argument, misconceived accountability seeing in it a concern only that the arbitrator’s decision might be based on his private interests.88
The Massachusetts court did not find accounta- Arlington. Instead, bility found that the town give this argument constitutional con- "fail[ed] tent”.89
Only Supreme Court, Richñeld, the Minnesota said that there was It accountability. concluded to the like "accountability delegation power; degrees. both are a matter of Although the arbitrators are not directly accountable decisions, their public for various provisions en- competence sure the accountability arbitrators”.90 court came to this conclusion in much same colleague, as does our way refer- ring to the standards act (specifically the requirement arbitrator consider finan- *124 decision), cial of impact his the requirement that 88 analogous Supreme is not cases in case to which the Court "[T]his delegated price-setting powers held unconstitutional statutes which to parties.” private Fighters Medford, interested Medford Fire Ass’n v supra, p —. (mis)conceived, argument rejected. properly Thus the was The concept however, political accountability, private of moti- assumes no rejects part labeling vation on chairman’s the and the idea that the public responsibility policy judg- arbitrator a officer that for assures (For body. purposes ments will our with an rest accountable official or assumed of argument, it can be that the not arbitrator is motivated by private interesting, though, colleague a interest. It is that our finds self-interest.) that the arbitrators are because accountable of their 89Arlington Arbitration, supra, p Board of & v Conciliation 780. from, explained, alia, delegation As we have the doctrine flows inter power legislative the constitutional sections Legislature, provide vest in the the separation powers, for and state that all political power people. is inherent The Massachusetts court recognized a should be statement of what must be shown satisfied. non-delegation that there and exists a doctrine that has basis. constitutional Citation additional constitutional texts unnecessary, accountability argument since the is but a delegation for the doctrine to be
90 p supra, Richfield v Local No 47. 408 Mich 410 566 Dissenting Opinion Levin, and the qualified by experience, the arbitrators Employ- Public of the Minnesota power removal Board.91 ment Relations
Thus, three states —Massachu- only the courts setts, and Maine92—have addressed Minnesota political recognized Significantly, the to court seems have the pragmatic unresponsiveness process, to "a for it went on find from the legislature’s of the arbitrators the removal reason for parties opinion” "the must feel pressures because immediate confident that evidence, positions, weigh to the their the will listen statutory obligations, panel’s come consider legislature may that well have believed decision. The reasonable exposing the public input direct would influence the arbitrators more stoppages”. prevent panels effort to work and undermine the Richfield, supra, p 47. expressing the same court was To the extent that Minnesota Ass’n, thought expressed in Biddeford Teachers that Biddeford v as (Me, 1973), response our is the same. We note addition- A2d subject require public opinion; ally to the that arbitrators be that we would not rather, require pressures that we immediate there be some would become would being policy made manner in which decisions legislative political scrutiny subject modifica- tion. Biddeford, Maine, Supreme also denied Court of Judicial finding accountability required, accountability. rather than that was question Although dividing whether the standards 3-to-3 sufficient, Court, reasoning employing has that been the act called a were rationale,” explain that it could not admission] "[virtual] 19, 35; 404; Helsby, 371 NYS2d 332 NE2d Amsterdam v NY2d (1975) J., (Fuchsberg, concurring), unanimously stated: making process providing the contract "We realize that hours) (as binding working subject to itself arbitration, it affects conditions Legislature moved into an area forbidden our has Legislature many the benefits must have concluded that courts. impasse sought by an be achieved if which are the statute can never very relationship. beginning This conclusion occurs at the not unreasonable.” Biddeford, p supra, 398. guess Apparently venturing "not unreasona- basis conclusion, delegated suggested power was to "ad court ble” govern- panels memberships controlled hoc mental action” because whose are to be "sought to avoid has may disruptive feelings if result of resentment and bitterness which governmental employee only government may look *125 grievances”. Id. redress of his municipal govern- analysis implicitly This assumes that state and party municipality, not the one. is the ments are state, Because adverse requirement that the arbitrator be it is difficult to see how a legislature engender resent- would the feared accountable state v Dissenting Opinion Levin, J. political rejected accountability argument Dearborn Fire Fighters, and only one of in made courts found those accountability. in an equal Utah,
Courts number of states — Colorado Connecticut —have found an uncon- stitutional absence of political accountability; not, claims, these courts did as our colleague so do distinguishable on the of basis provi- constitutional sions.93
The
Utah Supreme
in Salt
decision
Court
City
Lake
v International Ass’n of Fire Fighters94
distinguishable.
is not
Although,
colleague
as our
observes,
the Utah scheme lacked specified stan-
safeguards
dards
the sort which would be
courts,
required
by many
the court
specifically
stated that
that
not dispositive.
was
The
basis
was
the court’s decision
that
the "complexities of
budgeting
programs
and the selection of
are duties
electorate;
elected officials
owe
these policy
delegated
decisions cannot be
to a private ad hoc
arbitrators
violation of [Utah Const]
VI,
art
provides
legislative
[which
power is
Repre-
vested
a Senate and a House of
sentatives]”,
power
conferred on
"[t]he
of arbitrators
is not consonant with the
concept
representative
Even
democracy”.
if the
provided standards,
act had
this constitutional
objection would not have been overcome.95
city
regarded
single entity.
ment unless state and
are
as a
state
however,
one;
city,
virtually every challenge
and the
are not
compulsory
legis-
sector
interest arbitration
enacted
statutes
state
brought by municipality.
has
latures
been
Supreme
decision
the South
Dakota
Court
Sioux Falls v
Fighters,
455;
(1975),
Sioux Falls Fire
Local
89 SD
Although the City Council Greeley Police Union v in Court provision, city involved a charter Greeley96 statute, provision the the court struck down state view, holding, in our would contrary because "[a] of representa tenets conflict with basic seriously on government”. Placing specific reliance tive Fighters, Fire the court in Dearborn opinion lead reasoned: precept that among these tenets is "Fundamental (e.g., governmental decision-making engaged in
officials setting budgets, terms and conditions salaries and other must to the citi- public employment) be accountable these represent. Binding arbitration removes they zens representatives, plac- aegis of elected from the decisions person has no of an outside who ing them in the hands accountability public.” Connecticut opinion Superior of the
Nor is distinguishable. To in Berlin v Santaguida97 Court recognition that the standards sure, the court’s those included in fell far short of in act states, including Michigan, provided acts other court, relying But of decision. also one basis Fighters, Fire Dearborn addi- opinion the lead held: tionally question, insulating the "The scheme in arbitration representa- panel from the electorate and arbitration electorate, Article of the contravenes
tives Const] [Conn Second, Third, legislative [providing 1 Article § legislative power is vested branch] Stoddard, v 126 delegation doctrine set forth in [State necessary safeguards to a statute. See Division standards and save 540, supra, p 252. 96 City Greeley Greeley, Union 191 Colo Police v Council (1976). 422; 553 P2d (Conn Supe Santaguida, LRRM Town of Berlin v 1978). Court, rior v DPOA Dissenting Opinion Levin, 623, 628; (1940), Conn A2d 586 articulating 'intelligible principle’ traditional delegation formulation addition, In concept politi- doctrine]. insulated, cally compulsory panels is so proper political power inconsonant with the exercise of representative democracy in our First, as to violate Article Constitution, 2 of provides the State part political power is inherent '[a]ll ” *127 people.’ is, thus, There an even division of authority accountability question the among courts which the have addressed issue. recognize
We that a of majority jurisdic- those tions which have considered the constitutionality legislation of mandating binding public sector arbi- upheld enactments,98 tration have such but most did so without to adverting political the issue of accountability. upon distinguisha-
Two these decisions rested ble constitutional or statutory provisions.99
The
of the
decisions
Wyoming and Rhode Island
Dearborn Fire Fighters.100
courts were
discussed
98
Validity
See Anno:
and construction of statutes or ordinances
providing
disputes
public
involving
for the arbitration of labor
em
ployees, 68 ALR3d 885.
99
statute,
Pennsylvania
Fighters,
as we said in Dearborn Fire
supported by unique
provision
a
constitutional
for which there is no
Michigan analogue.
Dearborn,
Fighters
supra, pp
Dearborn Fire
v
(Levin, J.),
Russo,
referring Harney
183;
249-250
to
v
435 Pa
255 A2d
(1969).
560
statute, upheld
The Nebraska
in School Dist of Seward Education
Dist,
(1972),
772;
Ass’n v School
188 Neb
"* reasoning Wyoming Court has been as described 408 Mich Dissenting Opinion Levin, reasoning employed by the unpersuaded
We are majority remaining comprising courts perfunc- ultimately by their statutes upheld of a conventional standards application tory safeguards test.101 Employees Employees 'superficial Smyser, at Public and Public best.’ Dakota, Rights 17 SD L Rev Limitations in South Unions: Their (1972).”
65, 72 J.). Dearborn, supra, p (Levin, Fighters Dearborn Fire v City Supreme v Warwick Court of Warwick [in "The Rhode Island 109; (1969)] Ass’n, Regular 106 RI 256 A2d acknowl- Firemen’s employ- 'power public edged fix salaries arbitrator’s function,’ challenge analyzed clearly legislative but ees [is] delegation constitutionality correctly been in a manner which has tautological.’ 'wholly as criticized Island, Michigan, as consists "In Rhode party an and the arbitrators selects 'arbitrator’ three members. Each upon 'agree a third arbitrator’ to serve and select and name agree, panel. parties could not the third If the chairman arbitrator Chief Justice of Rhode Island was selected Supreme Court. Supreme Court said that determinative "The Rhode Island delegated authority question public had been was decisional whether improperly private persons. It reasoned that since officials or 'power legislative enjoys to fix the salaries of * * * supervision any superior’ employees, from without control *128 statute, specified by each its term of service and duties are and member public- panel (including union arbitrator and arbitrator) collectively 'public employer constitute that the three is a officer and reasoning public agency.’ both a board or Such nominalistic analysis begs question to a reason- and reduces the the issue syllo- reasoning could countenance the free over labels. Such debate Legislature gism are because that all enactments of the constitutional pass law.” Dearborn Fire cannot an unconstitutional J.). Dearborn, pp (Levin, Fighters supra, 248-249 v Guild, Spokane 457; Spokane v Police Wash 2d 553 P2d Authority, supra; (1976); County Improvement 640 v Mercer Division Medford, Arlington supra; Fighters v v Board Medford Fire Ass’n 27; Arbitration, supra; supra, p Helsby, & v Conciliation Amsterdam 1215, supra. Richfield v Local No vary respects opinions of the rule in minor in their statements The statutory upon particular In emphasis scheme. features of the and essence, however, there were sufficient stan- these courts found that (in typically similar to those in Act the form factors dards including safeguards as a requirement interest) and sufficient a to consider direction undescribed) (often devices, procedural such form of record, hearing opportunity judicial review and an support competent record evidence that there be v DPOA by Dissenting Opinion Levin, J. V Justice Williams would affirm the chairman’s award on the economic issues contested the city he finds the supported by because award "compe- tent, material and substantial evidence on the whole record”. He states that statutorily pre- scribed requires standard of review the order of the panel upon to be relating based evidence to all hand, applicable factors to the case at and that if an award finds the necessary support in the record, "we are mandated uphold it —whatever we believe to be its wisdom folly”. or its
We have previously Legisla- indicated that ture has indeed articulated a narrow scope review of Act 312 judicial awards and that most awards will be supported adequately when viewed dim and light deferential in which judicial scrutiny must be conducted.
Nevertheless, we cannot properly approve the instant award because the critical factor chairman’s decision to award COLA was the award rendered another in the arbitration be- tween the city and the Detroit Police Lieutenants (LSA). and Sergeants Association validity that award has not been finally determined be- cause the LSA case is being held in abeyance pending resolution of this case. opinion of the chairman of the DPOA arbi-
tration declared that COLA was "the central award, preventing delegation arbitrary capri- all excessive cious action or abuse of discretion. expressed We validity compul- have elsewhere our view that sory interest arbitration statutes cannot be measured the same standards-and-safeguards applied delegation ongo- test when a to an ing agency challenged, judicial administrative review offers inadequate protection in this context it is not sufficient prevent merely capriciousness. arbitrariness and upon arguments We have commented other or statements made in *129 86, 88, 89, 92, supra. these cases in fns 91 and 408 Mich Opinion Dissenting Levin, emphasized dispute”. The chairman in this
issue through achieved agreements that, prior because relationship be- bargaining evidenced collective LSA and by the obtained provisions tween DPOA, of and members because those won together perform units worked bargaining both DPOA’s functions, of the COLA acceptance police award of an mandated virtually offer was LSA arbitration. in the provision identical COLA criteria, analysis of the item-by-item In his specifically relied the DPOA of chairman discussing four LSA COLA award upon the factors.102 102"(c) public ánd the financial of the and welfare The interests government meet those costs. ability of the unit of "* ** judgment public, of in the of interest and welfare The course, include, chairman, quality of services deliv- would the ered; disposition place DPOA at a the members would which Sergeants clearly disadvantage compared and with Lieutenants as public. It of the would the interest and welfare as to not conduce to would performance imperil and patently morale effective so unfair public.” protection of the for the "(d) employment wages, Comparison and conditions of hours proceeding employees with in the arbitration involved employees per- employment wages, of other hours and conditions employees generally: forming and with other similar services "(i) comparable public employment in communities. In "(ii) comparable private employment in communities. In the main reliance of section which "This a central appropriate comparison placed. is most chairman has been is that * * * explained. Sergeants Lieutenants and (d), employees out, pointed there are no other "It under should be officers, police except city performing other similar services the namely, generally employees Sergeants far as other rank. So Lieutenants higher negotiated city, with than that award is bargain- separate employees. representing But these are unions other assessment, controlling in ing disposition not alone units entitled to different comparisons apt persuasive are more and more here. The security personnel.” other with services, "(e) goods commonly average prices for consumer living. known as the cost of . the chairman in the consideration of "This has been central philosophical appeal disposition, only because of the traditional too, previous the the principally award of because of the COLA but Lieutenants parties; history Sergeants bargaining between and the (e) (d) [along] reached.” are central the conclusions *130 v Dissenting Opinion Levin, J.
In light of the importance "central” attached to award, the LSA validity panel’s the DPOA reasoning in awarding the union’s last best offer hinges on COLA upon of the LSA validity panel’s award on that issue. The DPOA award can regarded supported competent, "by material and substantial evidence on the whole record” if only the LSA award properly was arrived at. The city appealed the LSA award to circuit and, following level, court affirmance at that Appeals. Court of The city’s application for leave appeal to this Court from the Court of Appeals affirming decision the award was not filed until 8, 1979, November the date on which we granted leave to appeal prior to decision of the Court of Appeals in the instant case. The city subsequently filed a motion to consolidate the cases on the ground that related they to the same subject and in law, had common controlling questions of but we took no in action the LSA case until four weeks argument case, after oral in the instant at which time application we ordered the appeal leave to held in abeyance and denied the motion to consoli- date as moot.
Speaking with the benefit hindsight, it ap- pears that we failed appreciate the extent of the relationship awards, between the two at least on the central COLA issue.
The gist of argument in city’s the LSA case is that a panel is not empowered selectively to determine which of the "applica- criteria are § ble” or place greater weight upon one or more upon criteria which evidence has been received at "(g) Changes any foregoing in during circumstances pendency proceedings. of the arbitration disposition changes during "Central are that have occurred pendency proceedings including Sergeants the Lieutenants * * award *.” Mich Opinion Dissenting Levin, other criteria addressed also expense implicitly rejects colleague’s opinion My
record. man- by holding that statute argument are whichever criteria dates consideration inten- legislative evince a but does not applicable equal weight or tion that each factor be accorded to determine which deprive of discretion resolving important more applicable factors are particular issue. city the LSA questions Other raised *131 answered, however, case, including to be remain supported that: the award is not arguments and substantial evidence on competent, material record; although lip panel, paying the whole of the authority service to the criteria lawful § wages financial employer, ability city disregarded ap- comparable reality employees, which it had received evi- plicable upon criteria in a thus its decision manner dence and reached statute; opinions not authorized sufficient panel awards of the do contain writ- findings satisfy requirements ten of fact process; Appeals due and the Court and of § opinion upholding panel’s improperly award a fact the record: because the considered outside on was city’s wages percent- last offer related age compensation police formula to fixed for case, in the last offer on city’s officers offer, wages ultimately exceeded the union’s last accepted. which was award, original
In rendered opinion his 18, 1978, the LSA chairman’s total discus- October presentation sion and of his decision on COLA read: panel’s opinion, employees
"In three-year under a The cost-of-living allowance. contract are entitled to v DPOA Opinion by Levin, Dissenting adopts proposal the Association on cost panel therefore living.” Wayne portion Circuit Court found this review permit judicial the award insufficient supple- panel and remanded award findings, upon applicable mental based record, factors and the on the issues of cost of living, wages aspects and economic of sick leave. later, en- Two the DPOA days award, the LSA remand order recognizing tered its in a footnote. parenthetically 24, 1979, the January chairman of the LSA
On supplemental opinion filed his and award pursuant to the remand order. The brief city’s support application appeal of its for leave to in the argues Sup- LSA case "January * * * plemental Opinion nothing and Award transparent attempt more than a after-the-fact justify [p city argues award.” [the] 21].
the chairman’s later effort disclaims reliance on comparative wage acknowledged surveys rele- original vant and influential opinion and conceals rather than reveals the actual basis of panel’s award economic issues. *132 supplemental
The opinion wages discusses the living together and cost of issues in relation to the 9 criteria. supplemental Close examination of the § however, opinion, an in- reveals little more than flated version of the originally bald conclusion stated: certainty the of inflation entitles employees cost-of-living to a In considering allowance. crite- (e) living, panel rion the cost of the con- cluded: living necessary cost of allowance would be to "[A]
supplement proposals parties the salary the either of power preserve purchasing of Lieuten- order to 408 Mich Opinion by Dissenting Levin, during contract. life of this Sergeants ants and power finds maintaining purchasing that of the economic legitimate is a aim employees affected case, city has any labor contract. In provisions of a support the testimony that would provide any to failed proposition and Lieutenants power of purchasing that maintained. Sergeants should not be allowance, living no cost of city has offered "Since signifi- salary that would proposed increases and has power Lieutenants and purchasing cantly reduce the Sergeants, the supports the Association’s living factor that the cost of panel finds proposals.” economic fac- applicable other treated the The chairman as follows: tors constitutional,
(a) that Although recognizing city provisions precluded and charter statutory realizing beyond revenue taxes or raising from budget, the chair- exhibits and figures stated man declared: is what presented by this arbitration question "The wages budget be allotted for
proportion and benefits geants. officials can authority simply by often would be proceedings.” the total will Police Lieutenants and Ser- for Detroit * * * recognizes city if panel also that scope panel’s limit the of an arbitration limitations, there declaring budget conducting purpose no for (c) city "the did The chairman found rather indicated that inability pay an but claim amount budgeted present appropriation insufficient Sergeants Lieutenants was salaries, that were fringe benefits pay COLA claiming union demands”. While subject cognizant of the interests and welfare to be ability pay, and the city’s a cost- that "the real issue” was whether declared identical of-living approximately allowance *133 v Dissenting Opinion Levin, J. prior contained contract should be contin- ued, and that while city’s position "the financial legal authority and is indeed a valid consideration * * * other more important, including criteria are living”. cost of
(d) In considering the position employ- communities, in comparable ees exhaus- tively parties reviewed data submitted wages provisions on stipulated and other cities comparable, only reject figures to be those aas comparison basis for because "no evidence [was] Sergeants what submitted and Lieutenants 'comparable’ Instead, in those do communities”. "the prior declared that collective bar- * * * gaining agreement arrived at mutual agreement a meeting and the minds” was comparison most relevant in determining adequate compensation for services rendered by Detroit Sergeants, Police Lieutenants and and concluded cost-of-living allowance necessary was to maintain compensation. level of
(f) The chairman adverted to the overall com- pensation presently received by Lieutenants Sergeants emphasize the previous agree- ment wages COLA had been negotiated and that sought the Association only to include provisions identical new contract. (h) (d)(ii) (b),
The chairman (g), found factors —wages conditions of performing those simi- lar services in private employment and compara- ble inapplicable. communities —
The circuit court subsequently upheld award Appeals and the Court of affirmed.
While we not do wish to be understood as inti- mating an opinion on the of a merits case formally decision, submitted dowe not view validity of the LSA award as 408 Mich by Coleman, C. Addendum *134 the the Court has
foregoing Surely conclusion. fac- statutory some content to the power give how DPOA award do we understand the tors. Nor LSA of the judicial review upheld can before it is imply would completed. To do so award instant award to the of the validity immaterial as a identified repeatedly whether another decision reason- "central” consideration chairman’s approach an confirms ing is invalidated. Such decision-making inher- principled of general lack review emptiness judicial ent in Act statute, paucity and the of safe- provided by legislative-politi- the exercise of guards attending arbitrators. power by cal Act 312 J., Coleman, C.J., and concurred Kavanagh, Levin, Addendum note that C.J. The researcher will Coleman, Dearborn, 229; Fighters Fire v 394 Dearborn Mich (1975), opposite to the I wrote NW2d I I must to a signed.1 have now confess opinion legislative the 1969 form vision how starry-eyed operate should compulsory arbitration —but I am now importantly, has More convinced not. operate constitutionally it cannot under present statute. fate, writing quirks the'history For those interested Fighters parallels rapid loss to our Court of
Dearborn Fire Justices, Justices, opinions totalling 2-1-1 from an ultimate hence split my sign opinion It had intention to of another decision. been offering. subsequent may my been end as lone There have same (2 vote, writings long years) and at least intervening third had not the taken so Court. It matters not at all events so decimated our historian, history legal only possibly but such was curious Supreme during writing and deliverance state of the Court Fighters. Dearborn Fire