The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6625

April 10, 1990

LABOR AND EMPLOYMENT:

Establishment of a township civil service commission by means of collective bargaining

LABOR AND EMPLOYMENT:

Establishment of a township civil service system through compulsory arbitration

LABOR AND EMPLOYMENT:

Establishment of a township civil service commission through compulsory arbitration

A collective bargaining agreement between a charter township and the collective bargaining agent of the charter township's police employees may incorporate the terms of Act 78, including the establishment of a civil service commission, without a vote of the charter township's electorate specifically adopting Act 78.

An Act 312 arbitration panel may incorporate a civil service merit system containing provisions similar to Act 78 into an imposed contract between a charter township and the police employees' union without a vote of the electorate specifically adopting Act 78. However, the civil service merit system must be limited to mandatory bargaining subjects such as procedures governing seniority and promotions, disciplinary proceedings, and the like. Those provisions which are not mandatory bargaining subjects, such as hiring procedures, may not be imposed through arbitration.

The establishment of a three-member civil service commission is a mandatory subject of bargaining and may be incorporated in a contract imposed as a result of compulsory arbitration under Act 312. However, the commission may only be given authority over those matters which are mandatory bargaining subjects--chiefly promotions and discipline. An arbitration panel may not provide for a civil service commission with authority over non-mandatory matters, such as hiring qualifications and procedures.

Honorable Gerald H. Law

State Representative

The Capitol

Lansing, MI

You have requested my opinion on several questions involving collective-bargaining agreements between a charter township and the collective bargaining agent of the township's police employees. Your questions involve an analysis of apparently conflicting constitutional and statutory provisions.

The Fire and Police Civil Service Act, 1935 PA 78, as amended, MCL 38.501 et seq; MSA 5.3351 et seq, commonly referred to as "Act 78," provides for civil service systems for fire fighters and police officers in, inter alia, charter townships. The statute contains detailed provisions governing the establishment of a 3-member civil service commission, hiring qualifications and procedures, competitive examinations for appointment and promotion, and procedures for removal, discipline or suspension. Section 17a of the Act states in pertinent part:

"This act does not affect any city, village, or municipality until approved by a majority of the electors voting thereon at an election at which the question of adoption of this act for that city, village, or municipality is properly submitted.

 

"... If the majority of the qualified electors of the city, village, or municipality vote in favor of the adoption of this act, then this act shall be in full force and effect in that city, village, or municipality."

Act 78 was originally enacted by the Legislature in 1935, and was most recently amended and re-enacted in 1986.

The Michigan Constitution also grants authority to local governing units to establish civil service systems for public employees by vote. Const 1963, art 11, Sec. 6, provides:

"By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each county, township, city, village, school district and other governmental unit or authority may establish, modify or discontinue a merit system for its employees other than teachers under contract or tenure. The state civil service commission may on request furnish technical services to any such unit on a reimbursable basis."

Therefore, with regard to police officers, both the Constitution and Act 78 provide that charter townships may establish civil service merit systems by popular vote.

However, Const 1963, art 4, Sec. 48, also provides:

"The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service."

Pursuant to this constitutional authorization, the Legislature enacted the Public Employment Relations Act, MCL 423.201 et seq; MSA 17.455(1) et seq, commonly referred to as "PERA." PERA provides public employees the right to form and join labor organizations and to negotiate in good faith with pubic employers regarding "wages, hours and other terms and conditions of employment."

The final statute to be considered is 1969 PA 312, MCL 423.231 et seq; MSA 17.455(31) et seq, referred to herein as "Act 312," which provides for compulsory binding arbitration for police and fire departments when their public employers cannot reach agreement through collective bargaining.

The interaction of the foregoing provisions has led to the questions you raise.

Your first question may be stated as follows:

May a collective-bargaining agreement between a charter township and the collective bargaining agent of the charter township's police employees incorporate the terms of Act 78, including establishing a civil service commission, without a vote of the charter township's electorate specifically adopting Act 78?

This precise question has not been decided by Michigan appellate courts. The most closely related opinion is Local 1383, Int'l Ass'n of Fire Fighters, AFL-CIO v. City of Warren, 411 Mich 642; 311 NW2d 702 (1981). In that case, the voters of the City of Warren had adopted a civil service system pursuant to Act 78. A collective-bargaining agreement had been entered into by the City and the firefighters' union which modified certain of the provisions relating to promotions that had been adopted by the voters pursuant to Act 78. A declaratory judgment was sought to determine whether the terms of the collective-bargaining agreement would prevail over the voter-approved provisions of Act 78. The Supreme Court stated, at 411 Mich 662-663:

"If the employer and the union agree to a change in the promotion system, the collective-bargaining agreement controls promotions. The mandatory bargaining duty of PERA and the need for uniformity, contrasted with the permissive nature of Act 78, lead us to determine that in enacting PERA the Legislature intended the bargaining duty to prevail over Act 78. The promotion system in Act 78 will continue to have effect in municipalities that adopt the civil service system of the act, unless a different system or plan is incorporated in a collective-bargaining agreement.

"The original authority and duties of the Police and Fire Civil Service Commission outlined in Act 78 were 'diminished pro tanto' by PERA 'to the extent of free administration' of PERA...." (Emphasis added.)

The City had argued in this case that Const 1963, art 11, Sec. 6, required a popular vote to modify a civil service system, established by the voters under Act 78. In response to this argument, the Supreme Court stated:

"We are not persuaded that the purpose of article 11, Sec. 6 was to prohibit, without an affirmative vote of the electorate, the modification of a local civil service system by a collective-bargaining agreement. Article 4, Sec. 48 and PERA do not require approval by the voters of collective-bargaining contracts. To require it would hinder and frustrate the free administration of PERA." Id. at 666.

The Warren case establishes that a charter township and a public employees union may bargain collectively and reach accord on the terms of a civil service merit system even though the resulting agreement alters the provisions of an existing merit system established by the charter township's voters under Act 78. Inherent in this conclusion is the notion that, because Const 1963, art 11, Sec. 6, states only that a local governing unit may establish a merit system by means of an ordinance, with voter approval, it does not preclude the establishment of a merit system by means of collective bargaining under PERA. Thus, under PERA, the parties to a collective bargaining agreement are free to establish a merit system that incorporates, or that modifies, the provisions of Act 78.

It is, therefore, my opinion that a collective bargaining agreement between a charter township and the collective bargaining agent of the charter township's police employees may incorporate the terms of Act 78, including the establishment of a civil service commission, without a vote of the charter township's electorate specifically adopting Act 78.

Your second question may be stated as follows:

May an Act 312 arbitration panel incorporate a civil service merit system containing provisions similar to Act 78 into an imposed contract between a charter township and the police employees' union without a vote of the electorate specifically adopting Act 78?

Compulsory arbitration pursuant to Act 312 provides for the arbitration of labor disputes between public employers and police or firefighters' unions where the normal process of collective bargaining over the terms of a new contract has broken down and has resulted in an impasse. Local 1518, Council No 55, AFSCME, AFL-CIO v. St Clair Co Sheriff, 407 Mich 1; 281 NW2d 313 (1979), and City of Grand Rapids v. Grand Rapids Lodge No 97, Fraternal Order of Police, 415 Mich 628; 330 NW2d 52 (1982).

The Michigan Supreme Court has held, however, that an arbitration panel acting pursuant to Act 312 may only compel agreement as to mandatory subjects of bargaining. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v. City of Center Line, 414 Mich 642, 654; 327 NW2d 822 (1982). The issue to be resolved, therefore, is whether the adoption of a civil service merit system is a mandatory subject of bargaining.

Mandatory subjects, under traditional labor law analysis, are "wages, hours and other terms and conditions of employment." Detroit Police Officers Assn v. Detroit, 391 Mich 44, 54; 214 NW2d 803 (1974). Act 78 establishes a three member civil service commission and provides for qualifications for hiring, competitive examinations for hiring and promotion, and procedure for removal and suspension, including the right to a hearing. It is clear that seniority and promotion are mandatory subjects of bargaining, Local 1383 v. City of Warren, supra, as are disciplinary procedures. Pontiac Police Officers Ass'n v. City of Pontiac, 397 Mich 674; 246 NW2d 831 (1976). It has been held, however, that hiring qualifications are not mandatory subjects of bargaining. Detroit Federation of Teachers v. Board of Education, 65 Mich App 182; 237 NW2d 238 (1975).

It is my opinion, therefore, that, an Act 312 arbitration panel may incorporate a civil service merit system containing provisions similar to Act 78 into an imposed contract between a charter township and the police employees' union without a vote of the electorate specifically adopting Act 78. However, the civil service merit system must be limited to mandatory bargaining subjects such as procedures governing seniority and promotions, disciplinary proceedings, and the like. Those provisions which are not mandatory bargaining subjects, such as hiring procedures, may not be imposed through arbitration.

Your final question may be phrased as follows:

Would the establishment of a 3-member civil service commission be deemed a mandatory subject of bargaining which could be incorporated in a contract imposed as a result of compulsory arbitration under Act 312?

Section 2 of Act 78, MCL 38.502; MSA 5.3352, provides for a three-member civil service commission to administer and implement the Act 78 merit system.

In the Warren case, 411 Mich, at 650, the collective-bargaining agreement reached between the City and the firefighters' union modified the civil service provisions of the city's Act 78 merit system with regard to seniority and promotions. While Act 78 provided for the authority of the civil service commission to regulate promotions, the collective bargaining agreement provided for promotions based upon seniority and reasonable qualifications as determined by the fire department after consultation with the union. The dispute in Warren was whether the Act 78 civil service commission had the authority to determine qualifications for promotion, or whether the fire department, after consultation with the union had such authority. Finding that the qualifications for promotion were among "other terms and conditions of employment," and thus were a mandatory subject of collective bargaining, the Supreme Court upheld the collective-bargaining agreement; the provision for the fire department to establish promotional qualifications prevailed over the Act 78 provision for such determination to be made by the civil service commission.

Similarly in Pontiac Police Officers Ass'n v City of Pontiac, supra, the dispute involved a civilian trial board for the discipline of police officers. Because the provision requiring the trial board was in the City's home rule charter, the City, invoking the charter provision, refused to bargain with the Pontiac Police Officers Association over procedures for disciplining officers. The Supreme Court held that disciplinary procedures, including the provision for a civilian trial board, were mandatory subjects of collective bargaining.

Therefore, it is my opinion that the establishment of a three-member civil service commission is a mandatory subject of bargaining and may be incorporated in a contract imposed as a result of compulsory arbitration under Act 312. However, the commission may only be given authority over those matters which are mandatory bargaining subjects--chiefly promotions and discipline, as noted above. An arbitration panel may not provide for a civil service commission with authority over non-mandatory matters, such as hiring qualifications and procedures.

Frank J. Kelley

Attorney General