Wayne County Civil Service Commission v. Wayne County Board of Supervisors

177 N.W.2d 449, 22 Mich. App. 287

Opinions

Fitzgerald, P. J.

This Court is faced with two cases which have been consolidated for purposes of this appeal, the same statement of facts being applicable in both instances. The original actions dealt with and arose out of the amendment to the statute known as the “Hutchinson Act”. It is concerned with the right of county employees to organize and bargain collectively with their respective governmental employers over rates of pay, wages, conditions of employment and hours of work.

The initial dispute arose on March 22, 1966, when the Wayne County Board of Supervisors adopted a resolution which established a three-member labor relations board for the express purpose of com plying with the requirements of PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]), amending PA 1947, No 336, and establishing collective bargaining for public employes. The act provides that:

“It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.”

In § 15 of the act, collective bargaining is made an employer duty, the act specifically providing that:

“A public employer shall bargain collectively with the representative of its employees as defined in § 11 and is authorized to make and enter into collective bargaining agreements with such representatives.”

The labor relations board, which consisted of representatives of the board of supervisors, Wayne County Civil Service Commission and the Wayne County Road Commission, began collective bargaining sessions. This, in effect, displaced the civil service commission in bargaining for rates of pay and terms and. conditions of employment.

In April, 1967, the Wayne County Civil Service Commission filed an action against the Wayne County Board of Supervisors, the Wayne County Road Commission and the Wayne County Labor Relations Board, seeking a declaratory judgment for determination of the collective bargaining rights of the respective parties. The case came on to be heard by a three-judge panel of the Wayne County Circuit Court.

On March 26,1968, the court entered a declaratory judgment, with one judge dissenting, which determined that the County of Wayne was the employer under PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]) and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. All parts of PA 1941, No 370 (MCLA § 38.401 et seq. [Stat Ann 1961 Rev § 5.1191 (1) et seg.]) which were inconsistent were declared repealed by implication or suspended.

Footnotes

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* Subsequently, on April 9, 1968, plaintiff filed a claim of appeal to the circuit court which was denied. The court also denied a motion for new trial and a motion to amend the judgment. On August 8, 1968, defendant Wayne County Board of Road Commissioners filed a claim of appeal.

We are primarily concerned with the issue of whether the trial court erred in its determination that the County of Wayne was the employer under PA 1965, No 379, and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. More succinctly stated, we are asked to determine who actually is the employer of employees of Wayne county for the purpose of collective bargaining and negotiation. We note that this problem exists because the legislature in drafting PA 1965, No 379, failed to specifically define the term “employer” for purposes of collective bargaining under the act.

It is the contention of the plaintiff civil service commission that the County of Wayne is the em ployer and that the civil service commission is the exclusive body to represent the County of "Wayne and all bodies within the county in matters dealing with terms and conditions of employment, salaries and wages of all employees of this governmental unit in the classified service. On the other hand, defendant Board of Wayne County Road Commissioners avers that it is the employer of its own employees.

The Board of Wayne County Supervisors takes a slightly different tack and maintains that the County of Wayne is composed of joint employers and the board of supervisors is the branch of government within the county upon whom the duties and responsibilities arising under PA 1965, No 379, are imposed.

We note that this whole action comes to us as a by-product of the passage of PA 1965, No 379, supra. After a careful examination of the pertinent provisions of this act, nowhere within it is the term “public employer” defined. This oversight is the crux of the problem with which we are faced. Nowhere within the statutory confines of “P.E.R.A.” can be found any standards to aid in this determination.

In reviewing the dissenting opinion entered in this cause, we find the general characteristics of identification of an employer are: (1) that they select and engage the employee; (2) that they pay the wages; (3) that they have the power of dismissal; (4) that they have the power and control over the employee’s conduct (35 Am Jur, Master and Servant, § 3, p 445). A most significant requisite of one who is an employer is his right to exercise control over the method by which the employee carries out his work. Hence, before we can reach a proper conclusion to this controversy it is neces sary to determine what authority and power' each of the parties to this litigation have with regard to the employment relationship.

The powers of the Wayne County . Civil Service Commission are set forth in PA 1941, No 370 (MCLA § 38.409 [Stat Ann 1961 Rev § 5.1191(9)])., Thus, the civil service commission has authority to:

“[P]rovide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the county service, and for such other matters pertaining to the carrying out of the provisions of this act.”

Its powers are more specifically delineated in MCLA §38.412 (Stat Ann 1969 Cum Supp §5.1191 [12]) which states:

“(a) It shall classify all the offices and positions of employment with reference to the examinations herein provided for, excepting as herein otherwise provided;

“(b) Shall from time to time make; in accordance with the provisions hereof, rules adopted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county;

“(c) Shall supervise the administration of the (civil service rules, hold examinations thereunder from time to time, giving notice thereof, • prepare .and keep an eligible list of persons passing such .examinations and certify the names of persons thereon to the appointing officers of the several departments ;

“(d) Shall, by itself or otherwise, investigate the enforcement of the provisions of this act, of its own rules and of the action of appointees in the classified service. In the course of such investigation, the commission or its authorized representative, shall have the power to administer oaths, and the commission shall have power by its subpoena, to secure both the attendance and testimony of witnesses and the production of books and papers relevant to such investigation;

“(e) Shall provide, through the purchasing department of the county, all needed supplies for the use of the commission.

“(f) The classification shall be subdivided into groups and shall be based upon, and graded according to the duties and responsibilities of such positions, and shall be so arranged as to permit the filling of the higher grades through promotion. All salaries shall be uniform for like service in each grade of the classified service as the same shall be classified and standardized by the commission. Such classification and standardization of salaries shall not be final until approved by the board of supervisors and such salaries shall not be paid except in accordance with such classification and standardisation;

“(g) Shall have such other powers and perform such other duties as may be necessary to carry out the provisions hereof.”

As can readily be seen from an examination of the aforementioned powers and duties, the civil service commission is clothed with some of the characteristics of an employer. However, while the plaintiff must classify positions and submit uniform pay plans for standardizing salaries, it does not have exclusive control over classification and standardization of salaries, for this must be approved by the board of supervisors.

The Wayne County Board of Supervisors has a duty to represent the county and to have “care and management of the property and business of the county in all cases where no provisions have been otherwise made.” (MCLA § 46.11 [Stat Ann 1969 Cum Supp §5.331]). The board of supervisors must also approve all decisions made by the county civil service commission. Hence, it is clear that the responsibility for final approval of all contract salary provisions lies with the supervisors.

It appears from the foregoing that the board of supervisors does not hold all of the identifying characteristics of an employer and must function in conjunction with the civil service commission and the particular appointing authority.

The Wayne County Road Commission is also a creature of statute, with specific duties and functions. (MCLA § 224.9 [Stat Ann 1958 Rev § 9.109]). The specific intent of the legislature in granting the commission authority over certain employer activities can be found in MCLA 1969 Cum Supp § 224.10 (a) (Stat Ann 1969 Cum Supp §9.110[1]), the pertinent language states:

“(1) The board of county road commissioners may participate in the cost of, or provide life, health and accident, and hospitalization insurance for, employees under its jurisdiction and their dependents in any county where the board of supervisors has not made such benefits available to the employees pursuant to the provisions of § 12a of Act No 156 of the Public Acts of 1851, as amended, being § 46.12a of the Compiled Laws of 1948.

* # #

“(5) Nothing in this section shall prohibit or restrict a board of county road commissioners xoho have prior to January 1, 1968 entered into a collective bargaining agreement from participating in a pension or insurance program for those of its em ployees who are. members of a collective bargaining unit * . * * (Emphasis supplied.)

The parties have stipulated: the road commission has-the-power to hire, fire, demote, promote, discipline and -pay its employees performing road work, subject to PA 1941, No 370, as amended, since its adoption, in 1942.

An examination of the statutes cited, supra, will indicate that although there is no specific language authorizing road commissions to bargain collectively with their employees, the language appears to indicate that the legislature so intended. The case of Labor Mediation Board v. Jackson County Road Commissioners (1962), 365 Mich 645, indicates that a board of road commissioners is regarded as a public employer, and hence should be permitted to bargain collectively with its employees under the specific terms of P.E.R.A.

In view of the above analysis of the obligations and powers of the parties to the present litigation, it is apparent that there exists no single agency in .Wayne county which has the exclusive right or responsibility • to represent the county in all matters pertinent to the process of collective bargaining.

In its majority opinion, the trial court ruled that provisions of PA 1941, No 370, which were inconsistent with PA 1965, No 379, were repealed by implication. - We'disagree with this position, as both statutes'are capable of being reconciled. PA 1965, No 379, has changed the field of public employment only to the extent that the employees may now join a union and bargain collectively with employers. Since Act No 379 does not specifically define the word “employer,” bargaining must be carried out within the framework of the law already in existence. From an examination of both statutes, it seems fair to say that PA 1965, No 379 did not undertake to change the character of the employer or transfer any duties, but gave the representative of the employees the right to deal with the particular employer as he found him. Therefore, the statutory enactments dividing up the prerequisites and functions among several county agencies will have to be recognized.

While this is not the simplest solution to the difficult problem with which we are faced, and though it may even tend to confuse and complicate the area of collective bargaining within Wayne County, it is the only plausible solution under the confines of the present statutory law. Our holding is most adequately explained by the dissenting opinion which states in part:

“The courts are without authority to bring their concept of judicial order out of what the litigants feel is legislative chaos, unless, of course, the statute is unconstitutional. Nor is it the prerogative of the courts to simplify the procedure by ignoring statutes, no matter how numerous or difficult.”

We therefore reverse the decision of the lower court and adopt in full the answer in the dissenting opinion to the questions posed in the prayer of the original complaint, which is as follows:

“I. Plaintiff performs some of the functions of the public employer, but certainly not all; that plaintiff’s contention that the civil service commission is the only body empowered to negotiate with public employee unions on matters set out in § 11 of Act 379 is unsupported by law; that the “public employer” is the County of Wayne and that plaintiff, the board of supervisors, the county road commission and other agencies of the county are empowered by law to, and therefore must, perform those functions delegated to them in dealing with public employees and their conditions of employment;

“II. The public employer is the County of Wayne and its functions as an employer are carried out by various entities, such as the board of supervisors, the civil service commission and, to a lesser extent, the Wayne County Road Commission and other appointing authorities.

“III. The board of supervisors — in carrying out its statutory function (MCLA § 46.Í1 [Stat Ann 1969 Cum Supp § 5.331]) of having the “care and management of the property and business of the county in all cases where no other provisions shall be made” (emphasis supplied) has the right and responsibility to carry out the requirements of Act 379 as to determining adequate bargaining units and the recognition of exclusive agents of employees and may utilize a vehicle such as the labor relations board to investigate and recommend appropriate action to the board of supervisors.

“IV. There is no single body or individual in county government who has the right or responsibility, exclusively, to represent the county in matters dealing with the establishment of salaries, wages, terms and conditions of employment of employees in the classified service.

“V. Act 379 has not terminated or modified the power and authority of the civil service commission under Act 370, except that as the repository of some of the powers of the employer, they as well as others holding such powers, have the duty to bargain in good faith, etc.

“VI. Neither the board of supervisors nor the Wayne County Road Commission has the authority to delegate to the labor relations board the duties and responsibilities of the civil service commission under Act 370.”

Reversed. No costs, a public question.

T. M. Burns, J., concurred.

PA 1941, No 370 (MOLA § 38.401 [Stat Ann 1961 Bev § 5.1191 (1)]), established a civil service system for the County of Wayne.