163 Mich. App. 350 | Mich. Ct. App. | 1987
Petitioner city appeals as of right from a decision and order of the Michigan Employment Relations Commission dismissing an unfair
The union is the exclusive bargaining representative for the city’s law enforcement employees, including its sergeants and patrol officers. The collective bargaining agreement effective from July Í, 1980, through June 30, 1983, between the city and the patrol unit contained in § 9.4(6) the following minimum manning clause:
Minimum Manning: The employer agrees to maintain the following minimum manning quotas:
7:00 am to 3:00 pm: One (1) Sergeant and two (2) Patrol Officers
3:00 pm to 9:00 pm: One (1) Sergeant and three (3) Patrol Officers
9:00 pm to 3:00 am: One (1) Sergeant and three (3) Patrol Officers
3:00 am to 7:00 am: One (1) Sergeant and two (2) Patrol Officers
The employer further agrees to maintain the following car staffing quotas:
7:00 am to 3:00 pm: No restrictions
3:00 pm to 9:00 pm: No restrictions
9:00 pm to 3:00 am: Two (2) two officer cars
3:00 am to 7:00 am: One (1) one officer car and one (1) two officer car.
These quotas are exclusive of detectives; provided, however, it will be permissable [sic] to replace an absent officer with a supervisor or a detective on the 7:00 am to 3:00 pm shift.
In the event that the Sault Ste. Marie Police Department institutes an organizational change providing for the utilization of Sergeants in the field, the parties agree to re-negotiate the manning section (9.4(6)) to effectively incorporate the use of Sergeants in filling the manning quotas.
Beginning in the spring of 1983, negotiations were conducted between the city and the union
On April 4, 1984, while arbitration was pending, the city filed its unfair labor practice charge with merc, alleging that the union had refused to bargain in good faith by bargaining to impasse over the minimum manning clause. The union responded by filing an unfair labor practice charge against the city which alleged that the city had refused to bargain in good faith with the patrol unit and had engaged in sham bargaining, apparently over economic items. The cases, along with a third charge not relevant to this appeal, were consolidated for hearing. On March 24, 1986, merc issued a decision and order which, contrary to the decision and recommended order of the hearing officer presiding at the hearing, concluded that the minimum manning clause was premised on officer safety and therefore constituted a mandatory subject of bargaining which could be submitted to Act 312 arbitration. Merc ordered dismissal of the charges, implicitly determining that an Act 312 arbitration panel had the authorization to make an award regarding minimum manning.
Merc has exclusive jurisdiction over claims of unfair labor practices pursuant to MCL 423.216; MSA 17.455(16). Michigan Law Enforcement Union, Teamsters Local 129 v Highland Park, 138 Mich App 342, 348; 360 NW2d 611 (1984), rev’d on other grounds 422 Mich 945 (1985). Section 106 of
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
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(d) Not supported by competent, material, and substantial evidence on the whole record.
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(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.
Merc’s findings of fact regarding an unfair labor practice, if supported by competent, material, and substantial evidence when reviewing the record as a whole, shall be conclusive. MCL 423.216; MSA 17.455(16). Substantial evidence is defined as more than a scintilla, but substantially less than a preponderance of the evidence. Tocco v Marquette Prison Warden, 123 Mich App 395; 333 NW2d 295 (1983); Ron’s Last Chance, supra at 182. This Court may review the law regardless of the factual findings of the commission. Mid-Michigan Education Ass’n (MEA-NEA) v St Charles Community Schools, 150 Mich App 763; 389 NW2d 482 (1986).
Act 312, which provides for compulsory arbitration in police and fire disputes, is intended to supplement the public employee relations act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq.
As a general rule, the issue of manpower or staffing levels is a managerial decision and therefore a permissive subject of bargaining. See, e.g., Center Line, supra. The issues of employee workload and safety, however, constitute conditions of employment and hence are mandatory subjects of bargaining. Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568, 575; 224 NW2d 672 (1974), and cases cited therein; Gallenkamp Stores Co v National Labor Relations Bd, 402 F2d 525, 529, n 4 (CA 9, 1968). In this case, the city argues that the evidence before merc shows that the manning clause operates as a staffing requirement and, as such, is a permissive subject of bargaining outside the scope of Act 312 compulsory arbitration. The
The reconciliation of two similar positions was addressed by our Supreme Court in Center Line, supra. There, the Court noted that, while manpower issues are not mandatory subjects of bargaining and therefore cannot be compelled in an arbitration award, there is a duty to bargain over the impact of manpower decisions to the extent that they relate to workload and safety. Citing Fire Fighters Union, Local 1186 v Vallejo, 12 Cal 3d 608; 116 Cal Rptr 507; 526 P2d 971 (1974), Alpena Fire Fighters, supra, and Narragansett v International Ass’n of Fire Fighters, AFL-CIO, Local 1589, 119 RI 506; 380 A2d 521 (1977), the Court in Center Line further indicated that, in order to come within the subject matter and jurisdiction of an Act 312 arbitration panel, the position that manpower affects safety must be supported by some evidence. 414 Mich 662-663.
In this case, we cannot find support in the record for merc’s conclusion that the disputed minimum manning clause constitutes a workload or safety practice to which the duty to bargain and submit to Act 312 arbitration attaches. The record before us reveals that no evidence was before merc showing or tending to show that the number of police officers on duty affects the workload of each officer. Further, other than a San Diego study finding that officers assigned to two-man patrols perceive them to be safer than one-man patrols, no evidence was before merc showing that two-man patrols enhance officer safety. Indeed, the evidence (including the San Diego study, state data on frequency of assault on officers, and local data on
Reversed.
M. J. Shamo, J., dissents and would affirm.