Southfield Police Officers Ass'n v. Southfield

433 Mich 168 v SOUTHFIELD POLICE OFFICERS ASSOCIATION SOUTHFIELD (Calendar 9). 2, Argued No. De- No. 81974. November Docket 22, August 1989. cided complaint a with The Officers Association filed Southfield Police City against Employment the Relations Commission the city Southfield, alleging em- had violated concerning by refusing ployment to its act relations job prevention duties a crime to transfer certain decision city’s program pound from members of the and the auto were a differ- to who members of association civilian by represented unit were a different union. ent and charge hearing be- A referee recommended dismissal had not established that work trans- cause association exclusively performed past by had its mem- ferred been P.J., Gmus, Appeals, The Court of and bers. The affirmed. Shepherd JJ., reversed, refusing Porter, apply A. to W. exclusivity substituting merc’s rule and the nlrb "adverse rule, impact” proceedings the case for further and remanded (Docket 88574). city appeals. No. Griffin, opinion by joined by Chief Justice In an Justice Brickley, Supreme Riley, Court and Justices Levin held: job unilaterally A city’s transfer certain duties to decision previously bargaining units inter-

one of several which had prac- performed changeably the work not an unfair labor was pera, tice duties not been under the where transferred had bargain- exclusively assigned particular a and were not bargain. ing subject to the unit work Findings Employment by 1. Relations Commission with respect questions supported of fact conclusive if are material, competent, on the record and substantial evidence underlying may the law as whole. A court review considered References 2d, seq.; Law 241 et Labor and Labor §§ Am Jur Administrative 1771. Relations §§ Law; Bar- Collective Index to Annotations under Administrative Employees. gaining; Employment; Officers and Labor and Public decision, including whether the commission’s decision was may authorized law. The commission’s determination be set appeal on it aside if is found to be based on a substantial and case, law. In material error of this use of the rule merely error commission was of law because the by published rule has not of been construed case law. Absence precedent long-established as reinforcement for a commission deprive rule does not that rule of relevance. public act, employment public 2. the Under of § relations employees right organize enjoy engage the in to and to collec- bargaining. provides public employer tive Section 15 that a bargain collectively recognized representative must with the of issues, hours, public employees. including wages, its Certain employment, and other terms and conditions of are considered subjects mandatory bargaining. to be of collective A unilateral public part employer, engage action on the of a or its refusal to bargaining, respect mandatory subject in collective with ato of bargaining may practice amount to unfair labor under 10(l)(e) of the act. determination of what constitutes a mandatory subject bargaining of act under the must decided by case case. duty public employer bargain 3. The aof to extends to a employees diversion of unit work to nonunit or to the subcon- tracting However, independent of the unit work to contractors. job historically in assigned instances where functions have been by public employer interchangeably a both to unit and nonunit i.e., employees, assigned unit, exclusively were not to one the assigns employer mere fact that the of more the work to one of obligation give the units does not violate the rise to an bargain. to impact” upon by 4. The federal "adverse test relied the Court Appeals developed by is one of several tests the federal to courts determine the whether diversion of unit work was a However, mandatory subject bargaining. precedent federal regarding private law, helpful deciding sector labor in while arising controlling. pera, cases under the is not It relevant persuasive only to the extent it on that is based similar policy facts and circumstances and best effectuates the pera. by The tests formulated the federal courts and the nlrb duty bargain to determine a whether over the diversion of bargaining private inappro- unit work existed the sector are priate cases, for use in this case. In the federal it was assumed question bargaining that the work in case, by contrast, was unit In work. this disputed interchangeably the work been had performed unit, by thereby bargaining raising more than one a 433 Mich regarding duties were in question the transferred whether real bargaining unit work. fact recognizes developed by merc rule 5. The particular may lay claim to a sole a before the work was assignment, unit must establish that work by exclusively the work has not performed unit members. If its unit, obligation assigned exclusively on there is no to one been bargain shifting employer part before duties performed particular employees. among If has been units, interchangeably in several employer public the terms has not been limited bargaining agreement, is able to collective expertise required assignments according to the make case, question dispute is no that the work In this there work. assigned interchangeably civilian em- to the officers and was exclusively assigned ployees it officers. or that was not Reversed. dissenting, joined by Justice Archer, Cavanagh, Justice adopted by the Court of the standard in this case stated that only Appeals where an will arise past operating practices, employer’s with action is inconsistent change employment, or results in in conditions effects tenure, security, job employment significant impairment or of reasonably anticipated opportunities preferable is to work the balancing is flexible allows rule. The standard and employer organization public a the of the and labor of interests holding supports the of law determination and case by duty bargain arises is to be decided case case.

whether the assignment dissenting, stated that work Boyle, Justice regardless subject bargaining, ordinarily mandatory of of exclusivity, the motivated economic considera- if transfer is efficiency. wage tions such as rates public adopting employment the relations act the In § courts, Legislature in constru- that the merc and intended sector, public rely duty bargain ing should on in the 8(d) developed precedent Labor under of the National federal law, the unilateral transfer Act. Under federal Relations work, motivated economic considera- unit where assign- tions, subject mandatory bargaining. Where the is a particular or сondition of has become a term ment of a bargain reassignment. employer employment, about its must persuasive, case, precedent and is relevant and In this federal declining to follow it. a basis for articulated However, expertise, primary given role in and its merc’s administering to the pera, the case should remanded Police v Southfield Opinion Court private looking proceedings, sector to federal merc for further construing rule in a guidance, rather than for decisions clearly that is unwarranted. manner (1987) App reversed. 413 NW2d 489 162 Mich — Employment — Ex- Relations Act Relations Public 1. Labor clusivity Rule. particular lay may to a sole claim Before a employer, assignment by unit must establish that members; performed exclusively if the its unit was the work unit, assigned exclusively no one there is work has not been part shift- obligation before on the (MCL seq.; among ing 423.201 et duties seq.). et 17.455[1] — Employment — Relations Commission Relations Labor 2. Agency Rules. long- published precedent for a as reinforcement Absence Employment Commission rule does not established Relations deprive that rule of relevance. appellee. Frank A. Guido for the DuBay Schwarze, Keller, Thoma, Schwarze, & Gary King), (by DuBay Katz, B. P. P.C. Dennis City Attorney, Ward, P. for and Susan Assistant appellant. Amici Curiae: (by Gallon, Kalniz Feldman and & lorio Bernard McCullers)

Gail for Detroit Police Lieutenants & Sergeants Association and Flint Police Officers Association. Hoekenga Amberg (by Hiller, & Daniel Hoek- Firestone)

enga Joseph Michigan H. Edu- cation Association/NEA.

Riley (by Stanley & Roumell Moore, III, C. Amy Newberg) Michigan Municipal League. E. case, J. In this the issue is whether the

Griffin, 433 Opinion of the Court Employment Michigan used Relations Commission determining appropriate that the standard the public employer, City Southfield, had not practice under the an unfair labor committed public employment Michigan charge ally act.1 relations The city against unilater- filed the after it was per- previously job duties, transferred certain by interchangeably formed several groups. units, the trans- to one of these Because by performed exclusively work had not been ferred objecting represented by the organization, no the merc found violation labor bargain. conclude, for reasons set We below, err, did not and we forth reverse Appeals. of the Court of decision

i activi- In with its law enforcement connection operates pound City ties, the an auto past, interchange- which, in the had been staffed police ably by officers, officers, civil- command preven- employees. city also has a crime ian program which had been staffed both tion police safety

officers and civilian technicians. necessary, city con- it When found because put police crime, on the about more cerns police street, the officers in those two sections were reassigned prevention duty, jobs and their crime street pound

and the auto were assumed employees. civilian Thereafter, Associ- Southfield Police Officers police organization representing offi- ation, a labor employed by police specialists cers and officer charge practice city, with the labor filed unfair complained city merc. The association refusing con- had violated 17.455(1) seq. seq.; et et MCL 423.201 Police Southfield Opinion of the Court cerning to transfer its decision pound prevention and the auto work in crime of a different who are members civilian by represented a different unit and are union. hearing

Following hearing, issued referee of dismissal in which he recommended a decision charge practice the asso- because labor the unfair the work trans- established that ciation had not past exclusively performed in the had been ferred hearing by referee members. The the association’s reasoning set forth in an decision on based his Appeals, opinion unpublished De- the Court of of Sergeants Ass’n v De- & troit Police Lieutenants (Docket February 22, 1982 No. troit, decided hearing 52931). Thereafter, referee’s decision explained: which was affirmed merc, argues the Commissiоn Charging Party Ap- unpublished Court to follow an not bound peals decision, [hearing erred and that the referee] that the auto requiring Charging Party to show per- prevention work was pound work and crime agree with exclusively by its members. We formed unpublished opinion of the Charging Party that an binding Appeals beyond Court of However, is not that case. and Ser- since the Detroit Lieutenants "exclusivity” rule to geants, applied have we bargaining unit unilateral transfer cases where of the alleged the rationale because work has been job particular Where in that case was sound. Court assigned interchangeably to functions have been represented nonrepresented employees, both units, and the unions or to members of different involved have had an

opportunity to demand bar- past, the assignments in the gaining over these assigns that an more mere fact give groups these should not rise work to one of bargaining obligation. City of East Detroit See [v Ass’n], Op MERC Police Lab Officers 433 Opinion the Court MERC Alcamo], 1984 Dearborn City [v 78, 81. Op Lab challenged the "ex- appeal, the association On merc. The Court clusivity rule” followed of "any in the absence concluded Appeals or by this Court rendered opinions published that would construing Court Supreme our contention,” exclusiv- the association’s govern Pоlice in law.” Southfield "no basis rule had ity Southfield, 729, 732- App 162 Mich Ass’n v Officers (1987). Refusing apply 489 733; 413 NW2d then panel rule,” Appeals the Court of "exclusivity rule impact” "adverse the so-called substituted Board Relations the National Labor formulated Corp, Electric 150 Westinghouse in and set forth (1965), 1574, 1577; 58 LRRM NLRB Industries, NLRB, Div, Inc v AMCAR ACF 1979). (CA 1344, 8, In opinion, its F2d Appeals stated: Court work dispositive question is not whether the employees in performed exclusively by union

was the employer’s pro- past, rather whether the but inconsistent with posed reassignment would be operating practices, would previously established or employment, in change conditions effect tenure, significant impairment job in a result anticipated reasonably security or employment opportunities for those in certainly more favorable unit. This standard applied by employees than that the interests of the Given our Court’s merc in the instant avowed should be construed tional Labor Relations for us to case. principle to the adherence the Na- liberally more than Act, it would be anomalous exclusivity rule. con- uphold merc’s We this case re- proper disposition of clude that a and, of law for further conclusions quires remand findings of fact consistent necessary, if further at applied the test AMCAR. with [Id. 734.] Southfield Police v Opinion of the Court city’s application grаnted then Court This (1988). Mich 859 appeal. for leave ii questions respect with Findings by competent, if supported are conclusive of fact record on the material, evidence and substantial 28, 1963, art whole. Const as a considered 17.455(16)(e). However, as 423.216(e); MSA MCL Regents Employment M in U of recognized we Comm, 96, 102; 204 NW2d 389 Mich Relations regardless the law (1973), review may this Court The Admin- the commission. findings of the factual 24.201 Act, 1969 PA MCL istrative Procedures 3.560(101) seq. provides et perti- seq.; et part: nent pro- or the constitution Except when a statute review, scope the court

vides for a different aside a decision unlawful and set shall hold rights of the agency if substantial of an order petitioner sion or order is the deci- prejudiced have been because following: any of the (a) or a statute. of the constitution In violation 24.306(l)(a); 3.560(206)(l)(a).] MSA [MCL of the determination review includes Judicial by is "authorized of the merc a decision whether 6, 28, such a decision law,” art Const if on a "substan- appeal aside on based may be set 24.306(l)(f); of law.” MCL material error tial and 3.560(206X1X0. case, of deter- Appeals the Court In the instant rule the merc’s use of mined that effect, disagree. was, "error of law.” We in un- that an has observed Although this Court no Appeals is of of the Court opinion published Continental Casu- see Stine v value, precedential 168 433 Mich op Opinion thе Court alty 89, 95, 2;n 349 NW2d Co, 419 Mich (1984), necessarily follow that ab- it does not precedent published as reinforcement sence of deprives long-established that rule of merc rule a any Wayne Co, 152 Mich relevance. In AFSCME v (1986), App 87, 98; lv den 393 NW2d (1986), Appeals recognized that the Court of specific impossible promulgate administra- [i]t anticipation every conceivable rules tive a prior to the enforcement of statute. situation Corrections, App Thompson Dep’t 143 Mich (1985), 32-33; 371 conflicts order den NW2d (1985). agency 422 Mich 1238 An administrative through may principles announce of law thus new doing adjudicative proceedings in addition to so through rule-making powers. DAIIE v Comm’r its Ins, 113, 117; App 326 NW2d 444 of (1982), 119 Mich (1983). 417 Mich 1077 The effective lv den by an administrative administration of a statute through accomplished agency always cannot predetermined general rules. application Rather, principles interpretation must some response controversy to actual evolve in presented cases agency. agency An administrative authority to act either must therefore have the general order. rule or individual applied years, For over ten screening identify- exclusivity rule device in as ing those situations in which a may may not out of the transfer of bar- arise gaining conveniently dismiss unit work. We cannot longstanding interpretation this merely no as an "errоr of law” because merc appellate jurisdiction in this thus far has court spoken publicly tradi- on the issue. This Court has interpre- agency tionally to the accorded deference tation of statute: Opinion of the Court placed the construction well settled It is particular de- provisions by any upon statutory time, long period for a ‍​​​​​‌​​‌‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌​‌​‌​​​‌‌​​‌​‌​​‌​‌‌‍of government partment courts, binding upon the should although not Police weight. v Detroit given considerable [Allen 382, 386; Bd, 15 NW2d 676 309 Mich

Dep’t Trial (1944). Com- Plymouth-Canton Breuhan v See also 278, 282-283; Schools, 389 NW2d 425 Mich munity (1986).] the exclusiv- Thus, review independently shall we to light history of its rule on its merits and ity applica- erred its whether determine this case. the rule to the circumstances tion of hi 423.209; MSA MCL pera, Under 9 of orga- to 17.455(9), right public employees enjoy Section bargaining. in collective engage nize and pera2 requires public employer 15 of the recognized represen- with the bargain collectively in- Certain issues employees. tatives of its and condi- hours and other terms cluding "wages, to be manda- are considered employment” tions of MCL bargaining. collective subjects tory 17.455(15); Detroit Police Officers 423.215; MSA 17.455(15) pera, 423.215; provides: MCL Section of the repre- bargain collectively public employer with the A shall employees in section 11 and is as defined sentatives of its bargaining agree- mаke and enter into collective authorized to ments with such section, purposes representatives. of this For the performance bargain collectively mu- is the of the representative obligation of the tual good and confer in faith at reasonable times to meet hours, wages, respect terms and conditions and other with agreement, any ques- negotiation employment, or or the thereunder, arising of a written con- and the execution tion tract, agreement incorporating any ordinance or resolution obligation party, requested does either but such reached' if not proposal require party agree compel to a either making of a concession. 168 178 433 Mich op Opinion the Court Detroit, 44, 54-55; 214 803 Mich NW2d Ass’n 391 v (1974); Metropolitan 23, 1277, Council No Local 642, Line, 652; 414 327 Mich AFSCME v Center (1982). falling outside of this 822 Issues NW2d category permissive or ille classified as either are gal bargaining. subjects The Id. at 652. classifi mandatory particular issue as a cation of a permissive subject "plays in role the bar vital public gaining dynamics Id. sector.” at 653. part public employer, action of a Unilateral or on engage in to collective its refusal may mandatory subject, respect to a consti with tute 10(1)(e) practice unfair under an labor 17.455(10)(1)(e). 423.210(1)(e); MCL PERA. a manda- The determination what сonstitutes tory subject to be under p supra, Bay 659; decided case City case. Local City Bay Schools, Mich Ed Ass’n v Public 430 (1988); 422 504 Detroit 376; NW2d Police App 487, Detroit, 490-491; Ass’n v 61 Mich Officers (1975). (1975), 233 49 den 395 Mich 756 lv NW2d Michigan varying held, have courts con- bargain duty texts, to a to extends employer’s diversion of work to nonunit em- subcontracting ployees or to the of the unit work independent e.g., See, Detroit to contractors. Police Detroit, 79; 404 428 Mich Officers Ass’n 595 NW2d (1987) (the city duty bargain violated its security over its decision to subcontract court work); Fighters Plymouth Ass’n, Fire Local 1811 v Plymouth, App 220; 281 Mich NW2d (1986) (the practice city committed an unfair labor performed subcontracting work which had been members); Lansing Fighters Union, Fire union Lansing, App 56; 349 421 v 133 Mich NW2d Local (the (1984) city bargain violated its by unit about its decision to remove work done perform members and hire nonmembers Opinion op the Court work); Van Buren Public School Dist v Wayne Circuit Judge, App Mich 232 NW2d 278 (1975) (the school district’s replace decision to its bus drivers with a private firm transportation is a mandatory subject of bargaining); cf. Bay City Ed Ass’n, (the supra school district’s decision to trans fer operation of special its education program to independent third party, an intermediate district, school was subject to a duty to bar gain); United Dist, Teachers of Flint v Flint School (1986) (there App 138; 404 NW2d 637 was no duty over a decision to elimi nate teaching pоsitions pursuant to a reorganiza tion); Ishpeming Supervisory Employees’ Chapter of Local 128 v Ishpeming, App 501; Mich (1986) (there NW2d 661 was no over a decision to transfer pursuant work to a effort). reorganization

However, in instances where job functions have been historically assigned to both interchangeably unit and nonunit employees, the merc has held the mere fact that the employer assigns more of the work to one of these groups does not violate the give rise to a bargaining obligation. This "exclusivity rule” originated in Fenton Area Public 29, AFSCME, Schools v Council 1976 MERC 632, Op Lab in which the employer unilaterally replaced unionized instructional aides with non- union students. The merc dismissed the union’s unfair labor practice charge upon the basis of its finding that the question work in had not been performed exclusively instructional aides. Southfield v Police Officers Subsequently, Ass’n, MERC Op Lab the police officers’ union alleged that the function of guarding prison ers had been improperly transferred to personnel outside of unit. The merc dismissed charge, noting that the "jailer’s work” had 433 Opinion the Court of deputized group performed by and a mixed

been police department. personnel within civilian 113. Id. at Dep’t Police Lieuten-

In Detroit Police v Detroit Op Sergeants Lab MERC ants & Ass% seemingly abandoned the merc reconsidered the transfer rule. The case involved fifty percent investigative from of over Police Lieutenants members Detroit patrolmen Sergeants outside the Association to hearing bargaining unit. merc affirmed the The finding practice: unfair labor referee’s of an presence patrol- earlier minimus de [sic] ios investigative men in the tigative Operative function of the [Inves- does not constitute Section] justification for erosion the continued wholesale performed by traditionally unit work Charging Party, at members of [id. 665.] unpub- Appeals in an But the Court reversed opinion per lished curiam and remanded case direction consider exclusiv- with ity rule: case, only opinion cited In the instant merc patrolmen in the ios

the fact that the number of from [Investigative Operations had risen Section] 1979, per in percent in to 57 in 3.5 1974 cent finding investigative "the work support of its that prov- the ios has been the traditional of ince of division sergeants facts are and lieutenants.” These finding support that not sufficient investigative critical dplsa bargaining exclusively work is unit work. dplsa Further, indicates that record investigative question of whether submitted dplsa province of the work should the exclusive 1977- arbitration 312 [1969 PA] [d]espite recognition the Act 1978 . . . Opinion of the Court 312 arbitrator had in investiga- essence found that tive work province was not the exclusive of the hearing dplsa, premised referee the remainder question of his decision on the whether "the uni- assignment lateral bargaining unit work of represented by one union” to members Thus, of another practice. union is an unfair labor hearing finding referee also made a that such work is unit work without a "concise explicit and supporting” 3.560(185). statement of the underlying facts finding. 24.285; MCL It is axiomatic that the crux of this entire case dplsa investigative is whether is, unit work. If it ally reassign then the city could not unilater- patrol such work to officers who are dplsa not members of the bargaining unit. If it work, isn’t bargaining unit then city need not Thus, at all question. on the adequate findings of question fact on this are critical. [De- troit Police Sergeants Ass’n, Lieutenants supra.] & The reaffirmed subsequently and re- peatedly applied the rule "to cases where unilateral transfer of bargaining unit work has been alleged because the rationale Sergeants [Detroit Police Lieutenants & Court Ass’n] was sound.” Southfield v Southfield Police Ass’n, Officers MERC Op See, Lab 1029. Joseph e.g., St Co v Ass’n, Police Officers Livonia Ass’n, v Police Officers MERC Op 524; Lab Community 1986 MERC Richmond 948; Lab Op Schools v MEA/NEA Local 1986 MERC Lab Op Rapids 850; Grand Ass’n, Public Schools v Ed Ludington Area Schools v Ed 560; MERC Lab Op Ass’n, 1986 MERC Sheriff of Iosco Co Op 502; Lab Ass’n, Police Officers MERC Lab Op Flint School Dist v United Flint, Teachers of Southñeld v Southñeld Police MERC T071; Lab Op supra; Ass’n, Officers Livonia Public Schools v Ed 168 433 Mich op Opinion the Court Op 550; Com- Schoolcraft Lab Ass’n, 1985 MERC College Personnel, munity of Office v Ass’n Op Alcamo, 1984 v 253; Dearborn Lab MERC MERC Lab

Op Police Officers Detroit v East Op 1442; Southfield Ass’n, MERC Lab Op 110; MERC Lab Ass’n, 1980 Police Officers 29, 1976 v Council Schools Area Public Fenton Op 632. MERC Lab Appeals opinion in the the Court of

The exclusivity acknowledges "the instant case support of merc.” in decisions rule finds any App Nevertheless, in absence 734, n 1. ap- opinion Michigan appellate published court rejected panel proving rule, the having position law,” in "no basis as merc’s interpreting the decisions to federal turned instead analogous provisions Rela- Labor of the National resolving authority” "persuasive in Act as tions panel chose Id. at 732-733. at hand. the issue impact” in test set forth the "adverse to follow Corp, supra. Westinghouse There, Electric respect complaint dismissing with in a nlrb, following subcontracting, announced unilateral standard: unilateral contract- has found the Board [W]here Section violative of unit work to be

ing out of 8(a)(5) appeared that (1), invariably it has previ- departure from contracting a out involved practices, effected operating ously established or resulted employment, change in conditions tenurе, employ- job significant impairment op- anticipated work reasonably security, or ment bargaining unit. those in the portunities [150 Olinkraft, AMCAR, supra; 1576. See also at NLRB (CA 5, 1982).] NLRB, F2d 302 Inc v impact” of several is but one test The "adverse Southfield Police v Opinion op the Court courts determin- developed the federal tests of unit work is a manda- the diversion ing whether Paper In Fibreboard bargaining. tory subject NLRB, 379 203, 215; 85 S Ct Corp Products US (1964), Court 398; Supreme 13 L 2d 233 Ed unilateral decision employer’s held that previously per- out maintenance contract sub- mandatory union members was formed its emphasized The Court bargaining. ject particular to the facts before holding was limited it. NLRB, 452 Corp v

In First Nat'l Maintenance (1981), 318 666, 679; 2573; 101 Ct 69 L Ed 2d US S to shut that an decision employer’s the Court held for economic rea- part solely of a business down benefit, "if the require only sons would and the collective- labor-management relations placed the burden process, outweighs of the business.” The Court cau- on the conduct it no view as to other expressed types tioned that Thus, Id. at 686, n 22. decisions. management again holding. Court once limited its narrowly Co, Otis Elevator 891; In 269 115 LRRM NLRB (1984), relied on the analysis board Fibreboard, supra in Justice Stewart’s concurrence "management at wherein he reasoned that decisions which are fundamental to the basic di- corporate enterprise impinge rection of a or which upon security” were only indirectly employment scope bargain. Applying of the beyond situation, plant-closure this rationale to a nlrb Otis, factor to a determi- held that "the critical to manda- subject nation of whether the decision is itself, bargaining is the essence of the decision tory i.e., upon change it turns in the nature whether upon or turns labor or direction of the business not costs; nor a union’s its effect on Opinion op the Court (em- ability 269 NLRB 892 to offer alternatives.” phasis original).3 the fed-

This Court has had occasion review including tests, Fibreboard, Nat’l, eral First holdings Otis, and we have noted that the of those strictly Bay cases City, supra limited their facts. See were supra 380; 658-659;

at Local at supra Ass’n, 98-99, Detroit Police Officers at n 9. It single is evident spectrum that no test covers the whole management involving decisions Thus, transfer or diversion of unit precedent regarding private federal work. law, sector labor while "helpful,” "controlling.” Detroit Police Offi- supra precedent Ass’n, cers vant and on similar facts and circumstances and at 92. Federal is rele- persuasive only it to the extent is based effec-

best pera. policy Fighters tuates the Detroit Fire Detroit, Ass’n v 408 Mich NW2d (1980). case, In the instant the tests formulated the federal courts and the nlrb to determine whether bargain duty there exists a to over the diversion of bargаining private unit in work sector are inappropriate present for use in the A context. through common thread which runs all of the analyses underlying assumption federal the is the that disputed being away work which is diverted in in way bargaining is, one or another from unit Westinghouse, fact, unit work. for ex- ample, subcontracting involved of what was con- Similarly, ceded ‍​​​​​‌​​‌‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌​‌​‌​​​‌‌​​‌​‌​​‌​‌‌‍to be unit work. impact” applied AMCAR, the "adverse test was NLRB, See also Local United Steelworkers of America v Div, (CA 5, 1987); Plymouth Stamping Corp, Eltec F2d 559 286 NLRB (November 85; 19, 1987); Litton Microwave 127 LRRM 1021 No Div, Cooking 973; (1987); Products Haw- 125 LRRM 1081 NLRB Inc, Mellody, 339; (1985); thorn GarWood- 275 NLRB 119 LRRM 1079 Co, Equip 113; (1985); Detroit Truck 274 NLRB 118 LRRM 1417 Lines, Inc, Freight City Columbia 271 NLRB 116 LRRM 1311 (1984). op Opinion Court to those duties which

only had earlier been found unit nlrb work. case, contrast, The instant involves more question. disputed Here, basic work had been interchangeably performed by more than one bar- gaining raising thereby question unit, a real as to whether the transferred duties are in fact "bar- gaining unit work.” This factual difference criti- cal. elementary prerequisite any

It seems that a concerning bargain determination about finding the transfer of work is a the work is "bargaining exclusivity unit work.” The rule devel- oped by recognizes bargain- merc that before a ing may lay particular unit sole claim to a assignment, must establish that the work performed exclusively by was its unit members. If assigned exclusively the work has not been to one obligation part unit, then there is no on the of the employer shifting among before duties to which the work has been as- signed. exclusivity represents logical The rule step duty-to-bargain analysis. first in a interpretation rule is a reasoned and a sensible solution to what other- employer, be, wise would for an insoluble exclusivity requirement "Catch-22” situation. The goes very parties’ bargain. to the heart of the It bargaining process by recognizing reinforces the negotiated agreement in the absence of a requires performed which that work will be exclu- sively by employers employee repre- unit, one agreed have, effect, sentatives that the assign Very significant is free to work. are the public employer ramifications for if the exclu- sivity given rule were not credence. In such an public employer’s event, the transfer of nonexclu- always subject challenge by sive work would be 433 Opinion op the Court present case, In the unit loses the work. whichever police example, public safety technicians, offi- for may cers, all have a claim to and command officers expect disputed It not unrealistic to work. employer in inter- would become snared rivalries. union perpetual potential conflict between specter

The bargaining competing units also raises the escalating public expense long delays and by impasse-resolution procedures that are caused public peculiar pera. Unlike the nlra, is not free to under the state statute bargaining parties implement its final offer after impasse. public employer must first reach an engage The exhaust, in, either arbitration or a fact-finding procedure 1969 PA established 17.455(31) seq., seq.; 423.231 et MSA et MCL MCL 423.25; 17.454(27). Additionally, § 13 of Act MSA 17.455(43), specifically 423.243; MCL requires public employer to maintain the sta- quo pending process. tus the Act arbitration present public employer context, In the transferring required to refrain from would be assignments units have between two which work performed previously the work until after the both public completion process. Act 312 regard employer’s tied with hands would be assignments. simple Since, as in the instant work case, different unions units and several multiple gener- involved, could arbitrations are assignment. the same work ated over particular exclusivity rule, if Under the by employees interchangeably performed has been public bargaining units, em- in several ployer the terms of a limited has not been agreement, em- collective ployer according expertise assign is able "to Southfield Police Opinion of the Court Livonia, required . . . supra at 951. standard, The merc unlike the federal "adverse rule, impact” takes into account the significant differences in the statutory schemes regarding the resolution disputes provides for the efficient allocation of scarce resources by minimizing time-consuming expensive challenges to the transfer of work where there has been an overlap performance of job duties a multiplicity of bargaining units.

The association argues that rule threatens the viability of the bargaining unit be- cause the rule is at odds with another principle followed merc. The merc has consistently held that no violation of the duty bargain will be found if the work removed is de minimis context of the See, unit’s work load. e.g., Luding- ton Area Schools, supra; Grant Public Schools v Ass’n, Grant Ed 1983 MERC Op 117; Lab Troy (Police Dep’t) v Troy Command Officers Ass'n 1982 MERC Op Lab 667. The association asserts the exclusivity rule, applied when in conjunc tion with the de minimis principle, allows an to unilaterally remove a de minimis portion of the work without violating the bargain and later remove the remainder of the work on the basis of justification transferred work longer is no exclusively that of the affected bargaining words, unit. In other object too soon and the minimis; effect is de object too late, and it is longer no exclusive bargaining work. The appellee foresees extеnsive erosion of the unit as a result application exclusivity rule.

However, as points out, the city held prior that a de minimis removal of unit work does not transform once exclusive work into non exclusive work. In Southfield v Police Officers Opinion op the Court Op commis- Ass’n, 1985 MERC Lab sion held: is argues that it relieved Employer also Property work in the duty to since the Room It bargaining unit work. was not exclusive that when the has found

true that the Commission bargaining unit disputed work is not exclusive obligation should the bargaining there no is employees. City to nonunit Employer shift duties of East Dearborn, Op City Lab of 1984 MERC However, Detroit, Op as far 1982 MERC Lab 1442. reveals, position Property Room as record this for bargaining unit work at exclusive has been that years. fact least the last six seven pst Safety received occasional Technician] [Public or a ceta supervisor from her minimal assistance change does not this fact. worker pointed in the instant case: As the merc out assigned to job that a The mere fact a has been sometime member the another [unit] is past that the work not does mean work, Joseph in St bargaining unit as we held Ass’n], Joseph St Ed 1985 MERC Schools Public [v assigned has been Op 454. Where the work Lab a exclusively to a unit member substantial time, period agreement no that said and there is Employer has an assignment temporary, is transferring the work. obligation to before Op MERC Lab [1985 1030.] exclusivity any possibility Thus, that rule employer a used as a will be tool bargain- away particular whittle the domain a recognition tempered ing is the merc’s concept which must that flexible relationship of the affected take into account the on case- units vis-á-vis by-case basis. Cavanagh, J. Dissenting Opinion

IV dispute case, In the instant is no there that public safety other technicians and civilian em- police ployees, officers, as well as had been as- signed interchangeably prevention the crime pound period bureau and the auto years. for a of several police dispute The association does not that exclusively perform assign- did not officers ments in exclusivity these past. Given our affirmation prop- rule, we merc conclude erly present city’s ruled under the facts assignment of the nonexclusive work did not con- practice. stitute an unfair labor reasons, For the above-stated we reverse the Appeals decision Court reinstate of the merc. decision

Riley, C.J., JJ., Brickley, and Levin and con- with Griffin, curred (dissenting). my view, J. In the "ad-

Cavanagh, impact” Div, verse of standard AMCAR ACF In- (CA dustries, NLRB, Inc 596 F2d 1979), Appeals adopted which the Court of in this preferable exclusivity case, is to the rule. The standard is a ing one flexible and allows for a balanc- public emрloyer

of interests between the and a organization provides duty labor that the to bargain only employer’s will arise an where action past operating practices, is inconsistent with ef- change employment, fects a results in conditions of or significant impairment job tenure, of employment security, reasonably anticipated opportunities. work supports Furthermore, the standard position frequently

the taken this past Court in the a that determination of whether bargain arises will be decided on case- Boyle, J. Dissenting Opinion per by-case se does A rule of basis. provide principle support ade- does not bargaining rights protection quate the of collective public employees. of

Accordingly, the decision of I would affirm Appeals. of Court J. J., concurred with

Archer, Cavanagh, (dissenting). my majority view, Boyle, In precedent and too federal has misconstrued applied broadly by exclusivity” "the construed rule In fact the merc in this case. view the precedent majority has cited no federal pro- support of its conclusion and merc authority no its rule of exclusiv- vided ity, federal necessary assure I that a remand is believe test can in fact be harmonized that with merc’s authority. If the re- relevant federal original may so, I mand does it affirm its dismissal. jurisdiction pending this clarification. would retain in this case is whether broad issue employer, City Southfield, committed an unfair 10(l)(e) practice § MCL labor 423.210(l)(e); transferring under pera, 17.455(10)(l)(e), by unilaterally MSA from the Southfield Police Offi- bargaining However, unit. this cer’s Association’s quickly transfer of issue devolves into whether bargaining this work from the unit was a manda- pera. subject tory § 15 of the under 17.455(15). majority 423.215; As the MCL part observes, action on the of a unilateral respect mandatory subject to a with deemed be a refusal is 10(l)(e) practice under hence unfair labor and of pera. simply Thus, whether the issue provision gaining question includes transfer of bar- phrase "other terms

unit work within the Dissenting Opinion Boyle, J. employment.”1 prece- and conditions of Our own adopted § dent establishes of the was legislative with the intent and the Michigan rely legal prece- courts would on the 8(d) developed dents under the in constru- nlra, ing duty public My to in the sector. review of federal law indicates that the unilateral bargaining transfer work, where motivated mandatory subject considerations, economic is a under the nlra. accept majority’s I cannot conclusion that by construing this case should be resolved exclusivity permitting rule as dismissal of an un- practice petition fair labor whenever the work in dispute interchangeably performed by has been more than one unit. I do not read the oрinion require qua case, in this as a sine merc non that "the unit must establish that the work performed exclusively by was its unit members.” p agree, contrary Ante, 185. I Nor can absent legislative potential indication, that the for conflict competing bargaining between units in the sector, furnishes a sufficient reason to construe the majority. assign- rule as does the If the particular ment of a has become a term or 17.455(15) 423.215; provides: The full text of MCL public employer bargain collectively repre- A shall with the employees sentatives of its as defined in section 11 and is bargaining agree- authorized to make and enter into collective representatives. with purposes ments such For of this section, bargain collectively performance is the of the mu- obligation representative tual of the and the good to meet at reasonable times and confer in faith respect hours, wages, with and other terms and conditions of employment, negotiation agreement, any ques- or the of an or arising thereunder, tion tract, and the execution of a written con- incorporating any agreement ordinance or resolution requested by party, obligation reached if not either but such does compel party agree proposal require either to a making of a concession. 168 192 433 Boyle, J. Dissenting Opinion must bar- employment, condition gain reassignment. about its

i A Court, question proper con- before 15, is one of law. See Const struction of the pera, § 1963, 6, art 28. It is the Court’s to set aside any agency decision which is violation 24.306(l)(a); constitution a statute. MCL 3.560(206)(l)(a).

This is not to say agency’s interpretation that an enabling act is In explaining its irrelevant. role of a reviewing comparable court under of the federal Administra- judicial provision review 706, Act, 5 tive Procedures USC the United States Supreme Court has written: determinative, Although not the construction of charged a statute those with its administration deference, great particularly

is entitled to when interpretation consistently that over a has been followed long period Piper of time. See v Chris-Craft Industries, Inc, 926; 1US S Ct 51 L Ed 2d [97 (1977). Clark, 555, States v US 124] [United 565; 805; (1982).] 102 S Ct 70 L Ed 2d 768 But the United Supreme States Court has also written: hand, On other the "deference to an owed expert slip tribunal cannot allowed to into a

judicial inertia which results in the unauthorized assumption by agency major policy decisions properly by Congress.” Ship made American Build- NLRB, ing 300, 955; Co v 380 US S Ct 13 L [85 (1965). Accordingly, reviewing Ed 2d while 855] uphold courts should reasonable and defensible 1989] Dissenting Opinion by Boyle, agency’s US Act, constructions of an enabling NLRB v Workers, 335, 350; Iron 651; 98 S Ct 54 L [434 (1978)], Ed 2d 586 they must not "rubber- stamp . . . administrative they decisions deem inconsistent with a statutory mandate оr that a congressional frustrate the policy underlying Brown, 278, statute.” NLRB v 380 US 291-292 (1965). 980; S Ct 13 L Ed 2d See Chemical [85 839] & Alkali Pittsburgh Co, Workers v Plate Glass (1971). 383; US S Ct 30 L Ed 2d [92 Alcohol, Tobacco & Firearms v [Bureau Federal Labor Authority, 97-98; Relations ‍​​​​​‌​​‌‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌​‌​‌​​​‌‌​​‌​‌​​‌​‌‌‍464 US 104 S Ct 78 L (1983).][2] Ed 2d 195 Longstanding and well-reasoned administrative precedent should be great accorded deference. Iso- lated agency decisions and even longstanding those agency decisions unsupported by persuasive rea- soning should be accorded less In deference. end, it is our constitutional and statutory duty construe enabling acts —to discern legislative intent underlying See, them. generally, U of M Regents v Employment Comm, Relations 389 Mich (1973). 102-103; 204 218 However, NW2d indispensable tool Court’s fulfillment of that is a thoughtful and carefully reasoned agency decision. The task at hand is to discern legisla- Davis, (2d ed), 29:16, 403, In 5 p Administrative Law it is further § explained that agency’s interpretation typically for an [deference unmentioned in of law is Supreme opinions Court in which the Court interpretation Indeed, agency’s. substitutes deference its for the such disagrees to be absent whenever seems the Court agency’s interpretation.

with the "Deference” con- becomes a cept is useful when the Court is in doubt about interpretation agency’s but is satisfied to let the decision stand. Supreme judgment Cases in which the Court substitutes are quite numerous —far more numerous than deference cases. The judgment ques- Court substitutes in some cases even when the interpretation policymaking agen- tion involves within the cy’s specialized area. 433 Mich Boyle, Dissenting Opinion pera, give 15 and to purpose tive underlying that purpose. effect to

B intent under- legislative have addressed the We previous 15 of the in a number lying § decisions. Pontiac,

In Pontiac Police Ass’n v Officers (1976), we held that NW2d disciplinary proceed- trial use a civilian board In the ings subject bargaining. was a mandatory Justice Levin opinion, explained: lead indeed, desirable, may, It because of the unique "para-military” ments, police depart- nature of guarantee degree some of civilian con- trol, from of the collec- insulated the uncertainties bargaining process. tive Legislature appropriate

If the deems it to rede- scope bargaining obliga- fine the of the collective public employers generally partic- tion of the or of representatives employers ular and the hours, "wages, their to include some other terms and conditions of employment,” may it do so. properly This Court cannot ad hoc that decide regarded uniformly

what has been a "condition” of employment applied a is such a condition as to particular public although it continues employers, public to be such a condition for other and score the redefinition, private. eschewing By we under- Legislature give prerogative of the it such consideration as deems warranted to the scope of the employers claims collective of the bargaining obligation impinges unduly [Id. power govern. on their at 684.] Michigan Faculty Central Univ Ass’n v Cen- In Univ, Michigan tral 404 Mich NW2d (1978), adopted of the Court and ex- majority Police Southfield Opinion by Boyle, Dissenting reading phrase

tended Justice Levin’s broad of the employment.” "other terms and conditions of In elements, holding procedures and criteria evaluation faculty mandatory subjects are of bargaining, explained: the Court Legislature adopting very The words adopt

the public that chose to the industrial model for nlra bargaining. decreeing In sector collective hours, "wages, and other terms and condi- employment” mandatory subjects tions of collective the relationship effect it has on the are bargaining, Legislature focused on particular aspect employment effect a of the status, employees’ has on the not the "business,” i.e., the effect on pera policies. educational statutory test of the particular aspect is whether ment ployment.” employ- of the relationship is a "term or condition of em- act, particular Under aspect the employment relationship mandatory is a sub- ject bargaining, of collective if may even it be said to be only minimally employment. a condition of Emphasis at 279-280. [Id. added.] We have acknowledged inception from the of the act that a broad construction 15 flows from the § very language employed Legislature: pera undoubtedly patterned Section 15 of was 8(d) after of the National Labor Relations Act § (nlra). language Both statutes use almost identical describing bargain. in the The decision Michigan Legislature adopt language 8(d) 8(d) significant. of the is Section nlra § part Taft-Hartley

been since the nlra 8(d) amendments of 1947. The terms of have § litigated been in numerous cases before the Na- (nlrb) tional Labor Relations Board and the Fed- Although eral courts. we cannot state with cer- tainty, it probably safe to assume that Michigan Legislature intentionally it did with the adopted 15 expectation in the form that Mich 168 433 Boyle, J. by Dissenting Opinion Michigan rely on courts would the that and 8(d) nlra, developed under precedents legal § public sector they apply that extent to the bargaining. Edwards, to bar- emerging duty 885, sector, L 895 391 public 71 Mich Rev gain in Detroit, (1973). v Ass’n Police Officers [Detroit (1974). 44, 53; Local Accord 214 NW2d 803 Mich 1277, 23, v No AFSCME Metropolitan Council 642, Line, 652-653; 327 NW2d 414 Mich Center Bay City Ass’n v Public (1982); Bay City Ed 375; (1988).] Schoоls, 422 NW2d 430 Mich scope that acknowledged We have also be public may in the sector collective unioniza- about the effects of limited concerns explained Bay As political process. on the tion Ass’n, 430 Mich 376: Ed City scope of man- subjects are within the [C]ertain employer, prerogative, public agement for such deci- politically accountable who remains sions, severely ability in its must not be restricted effectively. to function

Moreover, application we have that postulated peea fiscal crisis and result- affected may unique to the sector. See ing potentials Detroit, 428 Police Officers Ass’n Detroit (lead (1987) opinion by NW2d J.). However, no assertion in this there is Boyle, change product was staffing case that crisis, staffing that nor can we assume fiscal policy- severely would restrict pound the auto ac- making politically who remain role of those for the decision. countable severely this issue any Absent indication crisis, making, or entails a fiscal policy restricts rulings 15 of the prior our view of § 8(d) I nlra, after patterned was Dissenting Opinion Boyle, believe that on remand the merc should look to federal private sector guidance.3 decisions for

ii agree majority I with the the Fibreboard Paper Corp NLRB, Products 203; v 379 US First Nat’l Mainte- 85 S Ct (1964); 398; 13 L Ed 2d 233 Corp NLRB, nance v 666; 452 2573; US 101 S Ct (1981), inapрlicable 69 L Ed 2d 318 to the question presented dispute here. This does not subcontracting. involve 8(d) Properly § reviewed under of the this nlra, appear authority

case would to fall within a line of involving gories though distinct, three interrelated cate- (1) (2) bargaining disputes, of issues: unit work (3) jurisdictional disputes, assignment disputes. remand, On should examine all categories place dispute three of these to this in its proper context. Bargaining disputes arise in the context of party, typically collective employer, attempts when one negotiate scope of the type employees agreement.4 to be covered explained Newspaper Printing Corp As v 1980): (CA NLRB, 956, 10, 625 F2d 963 3 8(d) comparison nlea, It is clear from a of the 15 § of the § patterned prívate was after federal sector labor relations law. law, specific Under federal management rights sector there is a provision reserving assignments, out, contracting and the as 7106(a)(1)(B). signment personnel. See 5 USC But see also United Station, Kentucky States Naval Ordinance Louisville v Federal Labor (CA 1987) 6, (certain Authority, Relations qualifications 818 F2d 545 negotiable though they might of assignments). are even affect on work Dep’t Cf. United States of Health & Human Services v (CA 1988) Authority, 4, (the Federal Labor Relations 844 F2d 1087 proposal require department contracting-out union’s to make Management Budget guide decisions in accordance with Office of negotiable). lines was not 4See, e.g., Newport Shipbuilding NLRB, Dry News & Dock Co v 602 (CA 4, 1979); NLRB, Newspaper Printing Corp F2d 73 v 625 F2d 956 (CA 10, 1980), (1981); Corp, cert den 450 US Westvaco 289 NLRB (June 45; 1988). 22, No 131 LRRM 1044 433 Mich Boyle, Dissenting Opinion scope in the of the on a modification Insistence unit, established Board whether is an unfair voluntary recognition, certification or 8(a)(5) Act. practice in violation labor § Dock Co v Shipbuilding Dry&

Newport News NLRB, 73, 4, 1979]; F2d Hess Oil & [CA 440, 5, NLRB, v 415 F2d Corp Chemical [CA 920; Ct 25 L Ed 1969], den 397 US 90 S cert accord, Long- [1970]; v International 2d 97 Douds Association, 282-283 241 F2d shoremen’s [CA 8(a)(5) it an is that makes reason 1957]. employer to practice for an refuse unfair labor representatives of his bargain collectively with 9(a) obligates employees and § representative recognize the union as the exclusive employees in unit. New- appropriate all News, also, supra port at 76. See NLRB South 702, Co, 4, land Cork 342 F2d 706 [CA 1965]. Accordingly, that "there it has been said [can] genuine bargaining contemplated by as be no complete recognition Statute until been [has] granted Mfg requires,” McQuay-Norris as Act NLRB, 748, 7, 1940], cert Co 116 F2d v [CA 565; 843; [1941], den 313 61 S 85 L Ed 1524 US Ct meaning- parties and that cannot "[t]he wages employ- fully about or hours or conditions bargaining.” they ment unless know unit of Douds, it supra equally at 282. Moreover is well impasse upon insistence to a non- established 8(a)(5). subject bargaining mandatory violates § Borg- Corp, NLRB v Wooster Division Warner 342, 349; 718; 2 US Ct L Ed 2d 823 S [356 (1958)]. description bargain- And the or size of the See, ing subject. e.g., mandatory unit is not a Newport NLRB, Shipbuilding Dry News & Dock Co v 76; Vege- supra at Fresh Fruit National & NLRB, 1331, 5, 1980], v table Co 565 F2d [CA that, It to of the important scope note while the unit bargaining mandatory subject is not is there of the bargaining, right neither em- changes unilaterally implement to ployer Dissenting Opinion by Boyle, unit. do so Any attempt to constitutes Corp, supra. Westvaco unfair practice, an labor A to jurisdictional dispute controversy is a as certain work be performed whether should one another.5 True workers disputes to jurisdictional are limited situations involving competing claims between rival groups NLRB v Plasterers' Local Union employees. See No 116, 134, 30; 360; US n 92 S Ct 30 L Ed (1971). 2d The Supreme United States Court explained operation in juris- nlra as disputes dictional ‍​​​​​‌​​‌‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌​‌​‌​​​‌‌​​‌​‌​​‌​‌‌‍follows: 8(b)(4)(D) 158(b)(4)(D)] While USC makes it § [29 an practice get unfair for labor a union strike to assign particular group ato another, of employees than rather the Act does not deal with the controversy anterior to a strike provide nor any machinery resolving for such a dispute absent a strike. The and its Act remedies "jurisdictional” of that controversies nature play only by come into a strike or a threat of a gives strike. Such under authority conduct the Board 10(k) 160(k)] USC to resolve the § dis- [29 pute. Westinghouse [Carеy Corp, 375 US 263-264; 84 S 11 L (1964).] Ct Ed 2d 320 10(k) dispute resolution mechanism substi- tutes for collective bargaining and requires jurisdictional board decide on disputes the mer- its.6

A work assignment dispute a controversy is also 5 Carey 261, Westinghouse Corp, 266; As the Court in v 375 US S84 401; (1964), explained, variety “jurisdic 11 L Ct Ed 2d 320 another of dispute concerning represent tional” is one which union should employees. are, perhaps, "representa These better characterized as disputes. Metromedia, Inc, NLRB, tional” See KMBC-TV v 586 F2d (CA 1974). 1182, 8, 1189-1190 Union, Engineers 6 NLRB v Radio & Television Broadcast Local 1212, Workers, AFL-CIO, 573; Int’l Brotherhood Electrical 364 US (1961). 330; Supreme S Ct L 302 81 Court 51 Ed 2d United As the States 8(b)(4) explained, general of the nlra is § limited 168 433 200 by Dissenting Opinion Boyle, performed work should to whether certain as assignment by However, work unit. a employer disputes neutral victim- not involve a do They arise as bilat- unions. instead ized rival disputes unit and between one eral employer. assignment disputes do therefore Work 10(k) trigger proceedings of the nlra. under not Kaynard v of the NLRB and on Behalf See Transport AFL-CIO, America, Union of Workers 7 1969). (ED explained Supp NY, As 344, 347 306 F Kaynard, Supp 347: 306 F say presence of two

This a characterization unions is essential So, for dispute jurisdictional under the statute. as jurisdictional example, has termed nlrb are jobs which have been and union demand for belonging to no group labor held See, e.g., Brotherhood organization. International 639, Workers, Local AFL-CIO and its of Electrical Longshore- (1962); 138 689 International NLRB 1248, Association, AFL-CIO, 151 Local men’s (1965). 312, protection statutory And NLRB 317 perambulating afforded the has been employees to its non-union whose transfers of own problems as changing construction sites creates spheres of influence out enter staked these men held members have not theretofore unions whose See, e.g., specific jobs. International Brother- Workers, AFL-CIO, Local Union hood of Electrical (1966) 453, (jobs on new con- 426 No NLRB 87, site); Local International Association struction and Asbestos Work- Heat and Frost Insulators (1967) (same). ers, AFL-CIO, These 163 NLRB [899] protecting employers position Nat’l in the of neutrals. Woodwork 612, 625; NLRB, 18 L Ed 2d Mfgrs US 87 S Ct v Ass’n (1967). Bldg & Common Int’l Hod Carriers’ Cuneo Local See also (D AFL-CIO, NJ, America, Supp F Laborers’ Union 1959). Dissenting Opinion by Boyle, J. jobs

are cases where a union seeks to obtain its membershave not held. language statutory may The not be extended to disputes cover traditional forms of economic be- employer attempting

tween an and union to retain specificjobs historically particular by employ- held ees.

Application assignment dispute of federal work principles is somewhat clouded because federal bargaining frequently unit certifications are de- by job descriptions. Disputes fined or сraft in fed- practice eral therefore arise when an impasse regarding insists to an issue that it be- assignment lieves to be a work issue and the union bargaining dispute.8 Analysis believes to be a assignment disputes of work under federal law is frequent practice further clouded of federal referring assignment disputes courts in "jurisdictional,” to work as compet-

even when there are no ing claims of rival unions and it is clear that the dispute merely is between a union and the em- ployer.9 appears Nevertheless, what to have emerged general as and uniform rule of the assignments mandatory circuits is that work are subjects bargaining.10 Although question yet circuits, reached the the board has further by explaining refined this rule that the transfer of unit work to nonunit is a mandatory subject if the transfer is motivated economic considerations such as 8 See, e.g., NLRB, The Idaho Statesman v App 267 US DC (1988); Newspaper NLRB, Printing Corp (CA F2d 1396 v 692 F2d 615 NLRB, 6, 1982); Boeing (CA 9, 1978); University The Co v 581 F2d 793 Chicago NLRB, (CA 1975). 514 F2d 942 9 See, Statesman, supra. e.g., The Idaho n 8 10Indeed, ideological Compare the rule cuts across all lines. Statesman, supra J.), Idaho (opinion by Ginsburg, n 8 D. H. with J.). University Chicago Clark, (opinion by 433 Mich 168 Boyle, Dissenting Opinion exceptions wage efficiency.11No exist rates or other dispute assignment federal rule that a bargaining. mandatory subject precedent I that federal is relevant conclude expressed contrary persuasive, directly rule to the majority, merc not articu- and that the has the precedent. to follow federal lated a basis decline hi necessary I it to endorse While do not believe is pera Appeals should be the Court of view that precedent, liberally I construed more than federal appropriate to not that it is of course do resolve the remand believe precedent under federal alone. majority emphasized, a num- As the there are previous this area. ber of decisions merc agree consistency of the I and duration exclusivity adherence to the rule of merc’s significant I that it is consideration. do believe rule Given that the merc sole consideration. precedent upon which the deviates from federal rely, Legislature intended that we I believe that overriding significance should be accorded rea- soning supporting policy the merc discussions Unfortunately provided. rule. none has been opinion to the "sound” ration- The merc refers Appeals & the Court of in Detroit Police ale of per Sergeants unpublished opinion Ass’n, curiam, 52931). (Docket February 22, It is No. decided unpublished opinions indisputable of the precedential Appeals have no value. MCR Court of 7.215(C)(1). opinion unpublished Moreover, this exclusivity. rule no for the rationale states Indeed, it even clear that Court is not Inc, 81; See, Color, e.g., No 128 LRRM 288 NLRB Connecticut 1988); Co, (April 292 NLRB No 131 LRRM 1172 Kohler 1989). (January Dissenting Opinion by Boyle, Detroit Appeals adopted a rule of exclusivity Ass’n, Sergeants Police & because the Court of Appeals remanded the matter to the for a determination of whether "bargain- work was work,” ing despite recognizing that the inves- tigative work in question was not the exclusive province of the union.

iv Finally, we are left with the own majority’s rationale for the rule of exclusivity. Initially, majority reasons: rule interpretation is a reasoned and a sensible solution to what other- be,

wise would for the employer, an insoluble "Catch-22” exclusivity requirement situation. The goes very parties’ to the heart of bargain. It reinforces the process by recognizing that in negotiated the absence agreement of a requires which that work performed will be exclu- unit, sively by one employers employee repre- have, effect, agreed sentatives is free to in employer that the assign Very significant work. are the ramifications public for the if employer the exclu- sivity given rule were not credence. In such an event, public employer’s transfer of nonexclu- sive work would always subject challenge to cаse, whichever unit present loses the work. In the example, public technicians, for safety police offi- cers, and command may officers all have a claim to disputed the that work. It is not expect unrealistic to would become snared in inter- [Ante, union rivalries. pp 185-186.] Even if I arguendo assume that this is a jurisdic- dispute tional unions, between rival labor I could agree not with a construction that would resolve dispute by leaving question of assign- in ment the sole discretion of the employer. If the 433 Mich Boyle, Dissenting Opinion preclude to an conflicting demands is for potential mandatory subjects category from the issue bargaining little left for very is bargaining, Act 312 antici- under required process The table. character, statute of this and the pates disputes pro- in the intervention arbitration provides for 17.455(36). 423.236; MCL cess. Legislature that did

I not conclude would controlling this a consideration intend to make mandatory issues as categorizing bargaining I without permissive, nor am able conclude that the exclu- from the merc further clarification irrebut- an being applied rule is establish sivity ap- that what would presumption table otherwise of bar- mandatory subject a parently constitute labor under law is not an unfair gaining federal pera. practice under the is correct asserting majority as categorization permis- of this issue sweeping public will subject bargaining preserve sive "time-consuming minimize and ex- resources un- challenges” management decisions pensive However, argument Act 312. this is an der all permissive as categorizing issues argument Leg- subjects of —an 1 of Act Section expressly rejected. islature 312 declares: public policy that in

It is the of this state right police departments, and fire where it is prohibited, law strike employees and requisite high to the morale of such operation departments to af- efficient such alternate, expeditious, effective and bind- ford disputes, ing procedure for the resolution of act, providing provisions this for that end the arbitration, liberally con- compulsory shall be 423.231; 17.455(31).] strued. [MCL Boyle, Opinion by Dissenting I therefore find no the merc rule of support majority. in the rationale exclusivity Assuming exclusivity viable, rule of is application of the rule in this case does merc’s support not majority the broad brush construction that the

adopts. acknowledge While I hearing decision of the referee this case and opinions may other merc majority suggests, construed as the actually what merc regard carefully said in to this claim was: assigns an employer mere fact that more [T]he [interchangeable of the work to one of units] give should rise However, оbligation. . . . . . . where there is a change substantial assigned in the nature of the work unit, [bargaining] outside the a duty to bargain may arise. The board also observed that there was no testi- mony charge toas what the officer in of the auto pound did and concluded: job The mere fact that assigned has been to a member of another the sometime in [unit] past does not mean that the work is not

bargaining unit work Where [citations omitted]. assigned the work has been exclusively to a unit time, period member for a substantial and there agreement is no rary, assignment that said tempo- Employer obligation transferring before the work. charging party

The then concluded that the proof. had not met its burden of Thus, rule as conceived may functionally, be a method to determine merc 433 Mich by Dissenting Opinion Boyle, J. operating practices, parties by the the resort bargain- job question question was whether the ing no in the is definition unit work. Where there charging by the or which certification party contract exclusivity, unions involved claim the

could bargaining opportunity to demand had an have past, assignments work in the and the these over has been of different to by performed interchangeably members legal units, a claim none of which has by description, the the unit work parties practices may operate interprеt the rule in order to fact was the assignment determine whether the by bargaining unit work as understood parties. unwilling

I to conclude that has am adopted ity policy slavishly ‍​​​​​‌​​‌‌‌‌‌‌‌‌​​​‌​‌​​​‌​‌​‌​‌​​​‌‌​​‌​‌​​‌​‌‌‍applying the exclusiv- of legitimate charges of

rule to dismiss a When a assignments. over work refusal to support charging party has advanced evidence in claims, can, would, I these and believe merc uphold integrity the collective bar- act to majority’s gaining process. The construction pre- policy would create irrebuttable merc’s sumption of law that unless all of work at performed by exclusively petitioner’s is mem- issue bargaining bers, the is unit work. Such a not construction would excuse legal obligation board from the factually is determine what under cir- unit work and what mandatory subject is a cumstances transfer exper- bargaining. obligation to use board’s its practice whether custom tise determine relationship work, has created readily not be so dismissed. should

VI

CONCLUSION precedent Federal in this area is relevant and Boyle, Dissenting Opinion assignment persuasive. mandatory Work is a sub- ject bargaining regardless "exclusivity,” as majority interpreted it, if the transfer is considerations, such as motivated wage economic given efficiency. However, rates or merc’s administering expertise primary and its role in retaining case, I would remand this while pera, jurisdiction, rule, rather than construe the as has my majority, that, view, in a manner unwarranted.

Case Details

Case Name: Southfield Police Officers Ass'n v. Southfield

Court Name: Michigan Supreme Court

Date Published: Aug 22, 1989

Citation: 445 N.W.2d 98

Docket Number: 81974, (Calendar No. 9)

Court Abbreviation: Mich.