Police Officers Ass'n v. Oakland County

M. J. Kelly, J.

(concurring in part; dissenting in

part). I concur with the majority in concluding that the trial court failed to consider whether the board of commissioners abused its discretion when it eliminated 201 road patrol positions. I dissent, however, from the majority’s refusal to apply MCL *436423.243; MSA 17.455(43) as a significant limitation on the scope of the commissioners’ discretion.

I

The trial court in this case ignored the statutory prohibition on unilateral changes in conditions of employment during the pendency of compulsory arbitration proceedings instituted under 1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq. The relevant section provides:

"During the pendency of proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under this act.” MCL 423.243; MSA 17.455(43).

Since POAM had filed a petition for compulsory arbitration pursuant to 1969 PA 312 and the parties had stipulated that they were involved in negotiations at the time the positions were eliminated, the board of commissioners was prohibited by statute from laying off sheriff’s deputies for reasons other than those provided in the collective-bargaining agreement and in the Oakland County Merit System Rules.2 Rule 9 limits the commissioners’ authority to lay off county employees except for curtailment of work or lack of funds.

Under the majority view, the trial court on remand need only consider whether the commissioners acted arbitrarily or capriciously in terminating the 20 road patrol positions. I believe the issue on remand should be narrower. As I see it, the dispute in this case is whether the commission*437ers unilaterally changed a condition of employment during arbitration by eliminating county employees for a reason other than not having the funds to pay the salaries of these employees. This view is consistent with that pronounced in Metropolitan Council No 23, Local 1277, AFSCME, AFL-CIO v City of Center Line, 78 Mich App 281; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977).3 In that case, which I hereafter refer to as Center Line #1, the union’s collective-bargaining agreement permitted layoffs only for "lack of work”. In light of the statutory prohibition against changing existing wages, hours, or other conditions of employment during the pendency of compulsory arbitration, this Court ruled that the granting of a permanent injunction was proper to prevent the laying off of road patrol personnel for economic reasons while the dispute was being arbitrated.

Contrary to the majority opinion, I find Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v City of Center Line, 414 Mich 642; 327 NW2d 822 (1982), (Center Line #2) inapposite. In that case, the Supreme Court held that a collective-bargaining provision such as the one here, limiting the commissioners’ right to terminate employees for economic reasons other than lack of funds, does not constitute a mandatory subject of bargaining and may not, therefore, be incorporated by an arbitration panel into an arbitrated labor agreement by the arbitrator’s fiat._

*438We are not presented with an arbitrated agreement here. A collectively bargained for agreement was already in effect and the dichotomy between mandatory and permissive subjects of bargaining is thus beside the point. The issue here is one of interpretation and application of a collectively bargained for provision. The board of commissioners was either faced with "a situation in which the county [was] forced to drop positions” for lack of funds or it was not. It seems to me that the board cannot arbitrarily choose not to fund the budget for the affected employment positions simply to create a "lack of funds” which does not otherwise exist. If that were the case, the applicable Oakland County Merit System Rule would mean absolutely nothing.

The majority opinion says that the plaintiffs’ position is that the county executive bargained away the commissioners’ exclusive power to allocate funds. This is not plaintiffs’ position at all. Plaintiff POAM’s bargaining agreement is with Oakland County. Under the strong executive form of Oakland County government, Mr. Murphy’s office does the bargaining. MCL 45.563(g); MSA 5.302(63)(g). To imply that there are different pockets of power at odds is deceptive. The executive bargains for the county and hence for the commissioners.

I do not agree that in bargaining away the right to lay off employees for economic reasons other than lack of funds the executive, for the commissioners and for the county, bargained away a power reserved to management to allocate funds. If this were true, the executive would also be prohibited from bargaining away the county’s right to unilaterally reduce employee wages since such a limitation would similarly intrude upon the *439commissioners’ "exclusive” right to fix wages. I believe that it is entirely permissible for the county executive on behalf of the commissioners and the county to, through the process of collective bargaining, voluntarily limit any right to terminate employees for economic reasons.

II

As noted by the majority, the 1980-19814 collective-bargaining agreement between POAM and the Oakland County Commissioners provides for separation from county employment because of curtailment of work or lack of funds. There is no indication in the trial transcript or in the parties’ stipulation of facts that Oakland County had no need for the services of the road patrol deputies. The apparent basis for defendants’ elimination of the road patrol positions was insufficient finances.5 The parties, however, stipulated that the amount reserved as a contingency fund in the board of commissioners’ adopted budget exceeded the cost of the positions which were eliminated in the 1983 budget. I would remand this case for a determination by the trial court of whether the commission*440ers’ elimination of the 20 road patrol positions was properly based on lack of funds. While the parties would have the trial court focus on whether "lack of funds” as contained in Rule 9 of the Merit System Rules means "lack of actual funds” or "lack of appropriated funds”, I do not perceive the issue in this way. I would order consideration of the county budget as a whole to determine whether the budget as adopted evidences an arbitrary or capricious attempt on the part of the commissioners to eliminate road patrol positions for reasons that are not justified by overall county budgetary needs.

Contrary to defendants’ assertion, this case may be properly remanded to the trial court rather than submitted to binding arbitration. In Center Line #1, this Court ruled that where the parties are currently in arbitration under 1969 PA 312 and a question arises as to whether there has been a unilateral change in an employment condition, the dispute may be resolved in circuit court:

"While the city’s actions may have constituted unfair labor practices under MCL 423.210; MSA 17.455(10), the union did not invoke the provisions of PERA. 1969 PA 312 is separate and distinct from PERA, dealing with the particular problems of labor disputes with policemen and firemen. Because of the need for expediency in dealing with labor problems that might disrupt the crucial services these public employees provide, enforcement of 1969 PA 312 should not be encumbered by the procedure set forth in PERA. Nothing in 1969 PA 312 or any other statute prevents the judicial enforcement of the provisions of 1969 PA 312, and it was proper for the circuit court to assume jurisdiction over this dispute. Const 1963, art 6, § 13.” 78 Mich App 284.

I would thus order remand for a determination *441by the circuit court as to whether the commissioners’ adopted budget for 1983 satisfied § IV of Rule 9 of the Oakland County Merit System Rules. If there was no "lack of funds” within that definition the trial court should order reinstatement.

Stipulation of facts no. 18 provides:

"The funds appropriated as reserve for contingency in the board of commissioners’ adopted budget for 1983 exceed the cost of the 20 patrol officer and 7 command level positions which were eliminated by the board of commissioners in adopting the budget for 1983.” Apparently the seven command level positions are not at issue.

Stipulation of facts nos. 10 and 11 include both the agreement and the Merit System Rules.

This case represents a development which preceded Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v City of Center Line, 414 Mich 642; 327 NW2d 822 (1982). This Court’s decision in 78 Mich App 281 was not appealed to the Supreme Court. Shepard’s Michigan Citations signals these cases as connected. It is submitted that different legal principles apply to these connected precedents but that the earlier decision is of paramount importance to the decision of this case. The Supreme Court in Center Line #2 specifically stated that the decision in Center Line #1 was not the subject of review. 414 Mich 647.

This agreement covered the period January 1, 1980, through December 11, 1981, plus extensions. We are not informed why it was not executed until January 23, 1981.

Plaintiffs brief makes reference to plaintiffs Exhibit No. 11 as follows:

"The Oakland County 1983 Budget contains a surplus approaching $6,000,000.00 (See Plaintiffs Exhibit Number 11). At issue is not the specific level of the surplus, what is at issue is the total disregard by the defendants and the trial court of the contractual mandate that there be no layoffs unless a lack of funds exist.”

Since this exhibit is not tied into the stipulation of facts it is not clear whether this is in part or in whole the contingency fund referred to in stipulation of fact no. 18:

"The funds appropriated as reserve for contingency in the board of commissioners’ adopted budget for 1983 exceed the cost of the 20 patrol officer and 7 command level positions which were eliminated by the board of commissioners in adopting the budget for 1983.”