Michigan Law Enforcement Union, Teamsters Local 129 v. City of Highland Park

J. H. Gillis, J. Defendants appeal as of right a September 15, 1983, order of the circuit court. Pursuant to that order, the defendants were restrained from setting up an auxiliary police force in the City of Highland Park. On June 28, 1982, plaintiif filed a petition with the Michigan Employment Relations Commission, seeking arbitration pursuant to the compulsory arbitration act (CAA), MCL 423.231 et seq.; MSA 17.455(31) et seq. The previous collective-bargain *345 ing agreement between the parties covering patrol unit employees was to expire on June 30, 1982. On or about June 24, 1983, the defendant city enacted Ordinance 1109, thereby creating an auxiliary police force to perform such police-related matters as the execution of warrants and court orders involving traffic violations and parking tickets, as well as the issuance of citations for such offenses. Plaintiff alleges that the auxiliary police force was supplied with uniforms and equipment substantially similar to that utilized by the regular sworn police officers employed by the defendant city. Defendant city began using the auxiliary police force on June 27, 1983. Plaintiff contends that as of that date there were and continue to be regular police officers, both active and on lay-off status, available to perform the work assigned to the auxiliary force. On July 6, 1983, plaintiff filed an unfair labor practice charge with the MERC, alleging a violation of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., which charge is still pending before the MERC. On the same day, plaintiff filed a complaint for injunctive relief in the circuit court, claiming that the creation of the auxiliary police force contravened the provisions of PERA by interfering with the plaintiff’s right to negotiate and bargain collectively with the defendant city. The complaint further alleged that the actions of the defendant city contravened the status quo provision of the CAA, MCL 423.243; MSA 17.455(43). The defendants’ answer asserted that the creation of the auxiliary force was a management prerogative retained by the contract and that the action was properly within the scope of powers granted to home rule cities by the Michigan Legislature. Following a show cause hearing, the trial court *346 issued an opinion on August 19, 1983, restraining the defendant city from implementing Ordinance 1109. The court concluded that the ordinance was a valid exercise of the defendant city’s powers but that, as enacted, it violated the status quo provisions of the CAA. The preliminary restraining order was continued pending a decision on the unfair labor practices grievance filed with the MERC by plaintiff. Defendant city now appeals the lower court’s continuance of the preliminary injunction. Initially, we find that the defendant city did in fact have the power to create an auxiliary police force through the passage of the ordinance in question. The Michigan Constitution grants home rule cities such as Highland Park broad authority over municipal concerns. Const 1963, art 7, §22. Consistent with the constitution, the home rule act, and specifically MCL 117.4j; MSA 5.2083, provides for the establishment of any department that a city may deem necessary for the general welfare of the city. The home rule act was intended to confer upon cities exclusive rights in the conduct of their affairs not in conflict with the constitution or general laws, and has therefore been construed liberally. Conroy v Battle Creek, 314 Mich 210; 22 NW2d 275 (1946); People v Sell, 310 Mich 305; 17 NW2d 193 (1945). The defendant city’s creation of an auxiliary police force was clearly reasonable and undertaken for the advancement of the public welfare. The defendant city’s actions were therefore consistent with both constitutional and statutory authority. Tally v Detroit, 54 Mich App 328; 220 NW2d 778 (1974), aff'd after rehearing, 58 Mich App 261; 227 NW2d 214 (1975). Neither do we find the defendant city’s creation of an auxiliary police force contrary to the High *347 land Park City Charter. A home rule city may not pass an ordinance which is contrary to its charter. Thiesen v Dearborn City Council, 320 Mich 446; 31 NW2d 806 (1948). Further, if the authority to pass an ordinance is not granted by the charter, either expressly or impliedly, such ordinance is void. Richards v Pontiac, 305 Mich 666; 9 NW2d 885 (1943); Inch Memorials v Pontiac, 93 Mich App 532; 286 NW2d 903 (1979). The provisions of the Highland Park City Charter broadly grant the city all the power authorized for municipalities by law and specifically incorporate the powers granted under MCL 117.1 et seq.; MSA 5.2071 et seq. Highland Park Charter, Chapter 3, § 3-1. The city council is vested with the power to enact ordinances not inconsistent with the law to provide for the safety of persons and property. Highland Park Charter, Chapter 5, § 5-1; Chapter 6. Further, the charter authorizes the consolidation or addition of departments if the efficiency and effectiveness of the city would be improved thereby. Id., Chapter 7, § 7-16. We conclude that these provisions of the charter provide sufficient authorization for the defendant city’s authority to enact the ordinance in question. As is noted in the ordinance itself, the establishment of an auxiliary police force would augment the number of sworn police officers, thereby meeting the efficiency requirement for the creation of a new department as contained in Chapter 7, § 7-16 of the charter. Having concluded that the defendant city was armed with the power and authority to enact the ordinance, we next consider whether the ordinance runs afoul of the provisions of either the public employment relations act, MCL 423.201; MSA 17.455(1), or the compulsory arbitration act, MCL 423.231 et seq.; MSA 17.455(31). As noted in *348 the lower court’s opinion, the MERC has exclusive jurisdiction over claims of unfair labor practices, MCL 423.216; MSA 17.455(16); Detroit Bd of Ed v Detroit Federation of Teachers, 55 Mich App 499, 503; 223 NW2d 23 (1974). Therefore, we cannot determine whether the ordinance violates PERA as such a question must be resolved, in the first instance, by the MERC. The remaining question, therefore, is whether the ordinance violates the provisions of the CAA, or more specifically, whether the ordinance changes the conditions of employment of the sworn police officers. The pertinent section of the CAA 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). While there is little guidance in the appellate decisions of this state as to what constitutes a condition of employment under the CAA, there is significant authority addressing this concept as a subject of mandatory bargaining under PERA, MCL 423.201 et seq.; MSA 17.455(1) et seq. Since the CAA complements PERA, we may look to cases defining the subjects of mandatory bargaining to aid in defining the. "conditions of employment” as that term is used in the status quo provision of the CAA. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v Center Line, 414 Mich 642, 654; 327 NW2d 822 (1982). We may also look to the decisions of the federal courts since, in general, Michigan has adopted the same approach in determining what constitutes a man *349 datory subject of bargaining. Center Line, supra, p 653. As an aid in determining what constitutes the "terms and conditions of employment”, we look to the three-factor test stated in Fibreboard Paper Products Corp v National Labor Relations Board, 379 US 203, 213; 85 S Ct 398; 13 L Ed 2d 233 (1964). The Court in Fibreboard stated that the decision to subcontract is a mandatory subject of bargaining, and thus a "term and condition of employment”, if: 1) the decision does not alter the employer’s basic operation, 2) there is no capital investment or recoupment, and 3) the employer’s freedom to manage his business would not be significantly abridged by requiring bargaining. Fibreboard, supra, p 213; Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 28; 232 NW2d 278 (1975). We agree with the lower court’s conclusion that the creation of an auxiliary police force is a "term and condition of employment” under this test. Since the auxiliary force would be under the supervision of the chief of police, no change in the city’s basic operation would result. Further, since the lower cost of an auxiliary force was surely the motive behind the passage of the ordinance in question, it obviously cannot be said that a substantial capital investment was involved. Finally, since the ordinance, in reality, did no more than substitute nonunion employees for employees belonging to the plaintiff union, it cannot be said that the city’s right to manage its affairs was significantly affected. We therefore find that the decision to create an auxiliary police force effected a change in the conditions of employment for the plaintiff union’s members. Assigning to the auxiliary force duties which would otherwise have been performed by sworn police officers bears heavily on the work *350 load of union members. Section 13 of the CAA, MCL 423.243; MSA 17.455(43), was thereby violated, and thus the trial court’s order restraining the defendants from implementing the ordinance during the pendency of arbitration was properly issued. In conclusion, we note that this result furthers the purpose of the CAA, as set forth at MCL 423.231; MSA 17.455(31): "It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes, and to that end the provisions of this act, providing for compulsory arbitration, shall be liberally construed.” Affirmed.