Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Brief

    O C T O B E R  T E R M , 1983
,7 Y.■; y O : > u \

H anson B ratton, G ale B ogenn , W illiam  Sh ell , Patrick 
J ordan , C harles M ahoney , individually and on behalf of all 
others similarly situated; aftdTHh D etroit  R clice  L ieutenants 

Sergeants, A ssociation ,
Petitioners,

vs.

C ity  of D e t r o it , a M ich igan  M unic ipal C orpo ra tion ; 
C oleman A. Y oung , M ayor; W illiam  L. H a rt , C hief of 
Police; D etroit  Board of P olice  C ommissioners; and G uar­
dians of  M ichigan , D avid L. S im m ons, A rnold D. Payne, 

C raw ford , C linton D onaldson, W illie J ohnson , 
K enneth  M . J ohnson , A lfred B rooks,

Respondents.

Brief of Slate Labor Council 
and  M ichigan State Lodge — 

Fraternal O rder of Police as Amici C uriae
in Support of G ranting  the W rit

• ---------------:------— —  ----- ’
J ohn  A. L yons 
Counsel o f  Record fo r  A m ici Curiae 
State Labor Council and M ichigan 

f  State Lodge — Fraternal O rder of Police 
18860 W est Ten Milfe R oad 
Suite 200
Southfield, M ichigan 48075 
Telephone: (313J 424-8000

RENAISSANCE PRINTING COMPANY, 76 W. ADAMS 
9TH FLOOR, DETROIT, MICHIGAN 48226 — (313) 964-3185

5



1

Q U E S T IO N  P R E S E N T E D

I. W H E T H E R  A M U N IC IPA L G O V E R N M E N T  AS A 
PU BLIC EM PLO Y ER , A C TIN G  W IT H O U T  T H E  
BEN EFIT O F LEGISLATIVELY-DEFINED C R IT E R IA , 
IS C O M P E T E N T  T O  M AK E “ FIN D IN G S” O F PAST 
D ISC R IM IN A T IO N  A N D  E N A C T  U N IL A TER A L 
“ R E M E D IES” IR R E SPE C T IV E  O F  STATE LAW C O L ­
LEC TIV E BA RG A IN IN G  R E Q U IR E M E N T S.



ii

TA B LE O F C O N T E N T S

PAGE

Q U E S T IO N  P R E S E N T E D ....................................... .. . i

IN D E X  O F  A U T H O R IT IE S .......................................... iii

ST A T E M E N T  O F  I N T E R E S T .....................................  1

R E A SO N S F O R  G R A N T IN G  T H E  W R I T .............. 2
I. U N L IK E  T H E  A C T  O F  C O N G R E S S  IN ­

V O L V E D  IN  FU LLILO VE, T H E  D E T R O IT  
B O A R D  O F P O L IC E  C O M M IS S IO N E R S  IS A 
PU B L IC  E N T IT Y  IN C O M P E T E N T  T O  M A K E 
V A LID  F IN D IN G S O F  PA ST D IS C R IM ­
IN A T IO N  A N D  IS P R O H IB IT E D  U N D E R  
M IC H IG A N  LAW  F R O M  U N IL A TER A LL Y  
IM P L E M E N T IN G  P U R P O R T E D  R E M E D IE S  
F O R  PA ST D IS C R IM IN A T IO N ............................  5

II. T H E R E  E X IST S  A S T R O N G  N E ED  F O R  
T H IS  C O U R T  T O  SET F O R T H  A P P R O P R I­
A T E  S T A N D A R D S  A N D  G U ID E L IN E S  
O U T L IN IN G  TFIE  PE R M ISS IB L E  U SE O F  
A F F IR M A T IV E  A C T IO N  IN  P U B L IC
E M P L O Y M E N T ...........................................................  9

C O N C L U S IO N ...................................................................  10

A P P E N D IX  .......................................................    la

I. M IC H IG A N  PU B LIC  E M P L O Y M E N T  R E L A ­
T IO N S  A C T ...................................................................  la

II. M IC H IG A N  P O L IC E  A N D  F IR E  C O M P U L ­
SO R Y  A R B IT R A T IO N  A C T  ................................  13a



Ill

IN D E X  O F  A U T H O R IT IE S

CASES PAGE

American Tobacco Company v Patterson,
456 U S 63 (1982)...................................................... 7 ,8

California Brewers Association v Bryant,
4 4 4 U S 498(1980). .................................................. 7

Central Michigan University Faculty Association 
v Central Michigan University, 404 M ich 268,
273 N W  2d 21 ( 1 9 7 8 ) ............................................  5

Detroit Police Officers Association v City of Detroit,
61 M ich App 487, 233 N W  2d 49 ( 1 9 7 5 ) .........  5 ,6

Ford Motor Company v Huffman,
345 U S 330 (1 9 5 3 ) ................................................. 5

Fullilove v Klutznick, 448 US 448 (1980 )................... 5 ,6

Local 1383, International Association of Firefighters,
AFL-CIO v City o f Warren, 411 M ich 642,
311 N W 2 d  7 0 2 (1 9 8 1 ) .......................................... 5, 6

Transworld Airlines, Inc v. Hardison,
432 U S 63 (1977).....................................................  7

United Steelworkers of America v Weber,
443 U S 193(1979)..............................   7 ,9

University o f California Regents v Bakke,
438 U S 265 (1978). . ...............................................  6

FE D E R A L  STA TU T ES A N D 
R E G U L A T IO N S

29 U SC § 1 5 8 (d ) ..........................................................  5

2 9 C .F .R . §1608.3(c)(4) .......................................... 7



IV

STA TE LAW  P R O V IS IO N S

M IC H . C O N S T , art. 4, § 4 8 ................................... 5, 8

M ichigan Em ploym ent Relations Act (PERA ):
M C L A  §423.201, etseq.; M SA §17.455(1),
etseq..............................................................................  3, 4, 5, 9

M ichigan Police and  Fire Com pulsory 
A rbitration Statute (A C T  312):
M C L A  §423.231, etseq.-
M SA  §17.455(31), etseq.........................................  2 , 3 , 8

D etro it C ity  C harter, §7-1114  .......................  2



1

No. 83-551

in  t!je Supreme Court of tfje ®mtetr sta tes
O C T O B E R  T E R M , 1983

H anson B ratton, G ale B ogenn , W illiam  Sh ell , Patrick 
J ordan , C harles M ahoney , individually  an d  on beha lf o f all 
others sim ilarly situated; andTH E D etroit P olice L ieutenants 

& Sergeants A ssociation,
Petitioners,

C ity  of  D e t r o it , a M ich igan  M unic ipa l C orpo ra tion ; 
C oleman A. Young , M ayor; W illiam  L. H a rt , C hief of 
Police; D etroit  Board of P olice C ommissioners; and G uar­
dians of M ichigan , D avid L . Sim m ons, A rnold D . Payne, 
J ames E. C raw ford , C linton D onaldson, W illie J ohnson , 

K enneth  M . J ohnson , A lfred B rooks, 
Respondents.

B R IE F  A M IC I C U R IA E —
STATE LA BO R C O U N C IL  AND 

M IC H IG A N  STATE LO D G E 
—  FR A TER N A L O R D E R  O F P O L IC E

ST A T E M E N T  O F IN T E R E S T

Amicus Fraternal O rder of Police, M ichigan State Lodge, 
is a voluntary association which was organized pursuant to the 
laws of M ichigan, chartered in 1939, and presently consists of 
approxim ately 10,700 m em bers most of whom  are involved in 
law enforcem ent occupations. T he M ichigan Lodge has



2

representation in every field of law enforcem ent activity and 
its m em bers are em ployed at every level of state, county and 
local law enforcem ent.

Am icus F raternal O rder of Police, State Labor Council, is 
the recognized collective bargain ing  agent for approxim ately 
3,500 law enforcem ent officers, representing approxim ately 
two hund red  fifty collective bargaining units throughout 
M ichigan. M ost of the m em bers of the Labor Council perform 
police functions and /o r are police officers and, as such, are 
subject to 1969 PA 312 — Com pulsory A rbitration o f Labor 
Disputes in M unicipal Police and Fire D epartm ents. T he State 
L abor Council has represented several hundred  employees in 
num erous Act 312 proceedings and continues to do so at the 
present tim e. M any  public employees — police officers — are 
w orking at this tim e under collective bargain ing  agreem ents 
achieved as a result of Act 312 arbitration.

T he  parties have given their consent to the filing of this 
amici curiae brief; the letters of consent are on file.

R EA SO N S FO R  G R A N T IN G  T H E  W R IT  

P R O L O G U E

Petitioners, in the D istrict C ourt, asserted that the City 
acted im properly in unilaterally im plem enting racial quotas 
for prom otion in derogation of both the substantive provisions 
of the applicable collective bargaining agreem ent1 and the 
M ichigan statutory prohibition against unilateral changes in

1 Petitioners argued that the City had violated the substantive agreem ent 
in that §7-1114 of the D etroit C ity  C harter, requiring m erit exam inations 
for prom otions, was specifically incorporated into the agreem ent.



3

prom otional standards and criteria being term s and condi­
tions of em ploym ent as defined in the M ichigan Public 
Em ploym ent Relations Act (PE R A )2.

In  its m em orandum  opinion, the D istrict C ourt deem ed 
these pendent state claims irrelevant since they were strictly a 
subject of state law and thus, subject to proceedings in state 
court. A ppendix to Petition (hereinafter A pp.) at 194a, n. 102. 
Paradoxically then, the District C ourt incorporated the p ro­
m otional quota into a judicial decree that specifically “ super­
cedes any provision governing prom otions from  the rank  of 
sergeant to lieutenant w hether incorporated in an agreem ent 
between the parties or otherwise.”  (App. a t 261a). Thus, while 
the C ourt purported  to ignore Petitioners’ pendent state law 
claims, it sim ultaneously decided the issue, thereby effectively 
foreclosing the enforcem ent of Petitioners’ state law rights to 
engage in collective bargaining.

A lthough the C o u rt of A ppeals affirm ed the D istrict 
C o u rt’s final order insofar as it operated to retain jurisdiction 
over the operation of, and changes in, the affirmative action 
plan, it rejected the District C o u rt’s decision to protect the 
plan by incorporating it into the final judgm ent. (App. 79a). 
Thus, although without expressly stating so, the C ourt of A p­
peals ostensibly restored Petitioners’ state law collective 
bargaining rights when it vacated the D istrict C o u rt’s final 
judicial order. (App. 78a).

Nonetheless, the C ourt of Appeals affirmed in all other 
respects the statem ents of law decided below, including the 
holding that m unicipal employers possess a broad “ area of 
discretion” to design and im plem ent “ voluntary”  affirmative 
action program s. (App. 192a). T he decisions below, there­
fore, em brace the proposition that a m unicipal governm ent is

2 M ich. Com p. Laws Ann. (M C LA ) §432.201, etseq.; M ich. Stat. Ann. 
(M SA) §17.555(1), etseq.



4

com petent to make valid findings of past discrim ination as well 
as to unilaterally im plem ent racial preferences as a rem edy for 
past discrim ination irrespective of the collective bargaining 
process. T he Amici subm it that this disturbing precedent 
wrongly confers an “ area of discretion” upon municipal 
governm ents which is specifically denied by the carefully struc­
tured provisions of PE R A  designed to guard against the 
arbitrary  actions of public employers by prohibiting unilateral 
changes in term s and conditions of employment.

As such, the decisions below cast into doubt the param eters 
o f collective bargain ing  in the M ichigan public em ploym ent 
sector. Indeed, the C ourt of A ppeals’ decision m ay be read to 
carve out an affirm ative action exception to PE R A , thus 
threaten ing  public em ployees’ state law collective bargaining 
rights.

G iven the existing confusion am ong the circuits in this 
a rea ,3 and the corresponding lack of definitive guidelines from 
this C ourt, the Amici subm it that this C ourt should grant the 
W rit herein and define the param eters of discretion to be ac­
corded m unicipalities in enacting affirmative action program s 
as a purported  rem edy for past discrim ination.

3 See Petition for W rit of C ertiorari, pp. 11-13.



5

U N L IK E  T H E  A C T  O F  C O N G R ESS IN ­
V O L V E D  IN  F U L L IL O V E , T H E  D E T R O IT  
B O A R D  O F P O L IC E  C O M M IS S IO N E R S  IS A 
P U B L IC  E N T IT Y  IN C O M P E T E N T  T O  
M A K E  V A LID  F IN D IN G S O F  PA ST D IS ­
C R IM IN A T IO N  A N D  IS  P R O H IB IT E D  
U N D E R  M IC H IG A N  LAW F R O M  U N IL A T ­
ERA LLY  IM P L E M E N T IN G  P U R P O R T E D  
R E M E D IE S  FO R  PA ST D IS C R IM IN A T IO N .

M unicipal employers in M ichigan are specifically pro­
hibited from, and rendered incom petent, to create and im ple­
m ent unilateral decisions regarding “ term s and conditions of 
em ploym ent”  as that term  is defined under P E R A .4

4 The M ichigan C onstitution of 1963 explicitly authorizes the legislature 
to enact laws governing public em ploym ent. ( “ T he legislature m ay enact 
laws providing for the resolution of disputes concerning public employees 
. . . ”  M IC H . C O N S T ., art. 4, §48.) P ursuant to that authority , the 
legislature enacted PER A  to provide public employees the absolute right 
to form and jo in  labor organizations, and to collectively bargain in good 
faith with public employers regarding “ wages, hours and other term s 
and conditions of em ploym ent” . M C LA  423.215; M SA 17,455(15). 
T he M ichigan Suprem e C ourt has repeatedly recognized that §15 of 
PER A  was modeled after §8(d) of the National Labor Relations Act, 29 
USC 158(d), and that the language of the two sections is virtually iden­
tical. Accordingly, M ichigan cases have customarily followed the federal 
interpretations of parallel M ichigan provisions. See, e.g., Central Michigan 
University Faculty Association v Central Michigan University, 404 M ich 268, 
273 NW  2d 21 (1978); Detroit Police Officers Association v City of Detroit, 61 
M ich App 487, 233 N W  2d 49 (1975). In  federal labor relations law, 
seniority, prom otion, and prom otional criteria are included within the 
phrase “ other term s and conditions of em ploym ent” . See Ford Motor Com­
pany v Huffman, 345 US 330 (1953). Seniority, prom otions and prom o­
tional criteria, being included within the statutory phrase “ other terms 
and conditions” are thus, m andatory subjects of bargaining. Local 1383, 
International Association of Fire Fighters, AFL-CIO v City of Warren, 411 M ich 
642; 311 NW  2d 702 (1981). Consequently, a refusal to bargain over af­
firm ative action prom otions constitutes an unfair labor practice under 
§10(e) of PER A . M C LA  423.210(e); M SA 17.455(10)(e).

I.



6

In  fact, the M ichigan Suprem e C ourt has consistently held 
that P E R A ’s express prohibition against unilateral public 
em ployer actions m ust prevail over conflicting legislation, 
charters, and ordinances in the face of contentions by cities, 
counties, public universities and school districts that other 
laws or the C onstitu tion carve out exceptions to PER A . Local 
1383, International Association of Firefighters, AFL-CIO  v City of 
Warren, 411 M ich 642, 655; 311 N W  2d 702 (1981).

T he M ichigan courts have squarely held that all p rom o­
tional standards and criteria constitute a ‘ ‘ term  and condition 
of em ploym ent”  as defined in PE R A , with its m andatory  du ­
ty to bargain  and its a ttendant prohibition against unilateral 
em ployer actions. Detroit Police Officers Association v City 
of Detroit, 61 M ich App 487, 233 N W  2d 489 (1975); accord, 
Local 1383, supra. Therefore, contrary to the decisions below 
in the instant case, the C ity of D etroit and the Board of Police 
Com m issioners have no “ area of discretion”  to unilaterally 
im plem ent purported  rem edies for past discrim ination by 
altering prom otional standards and criteria to include the use 
of race.

As Justice  Powell cogently observed in University of Califor­
nia Regents v Bakke, 438 US 265, 309 (1978), “ isolated 
segments of our vast governm ental structures are not com pe­
tent to m ake those decisions, at least in the absence of 
legislative m andates and legislatively determ ined c rite ria .” 
See also Fullilove v Klutznick, 448 US 448, 472-80 (1980).

T he C ity of D etroit and its Board of Police Com m issioners 
has no such m andate or criteria and, as evidenced by the facts 
of the instant case, is totally unsuited, in the absence of such



7

criteria, to m ake the “ findings”  it did and pu rport to rem edy 
past discrim ination based on those “ findings” .5

Similarly, the decisions below contrast sharply with the 
Equal Em ploym ent O pportun ity  Com m ission (EEO C ) affir­
m ative action guidelines which recognize that m odification of 
prom otion procedures is a m atter properly entrusted to the 
collective bargaining process. 29 C F R  §1608.3(c)(4). This 
C ourt has recognized that ‘ ‘[tjhe collective bargaining process 
‘lies at the core of our national labor policy . . . American 
Tobacco Company v Patterson, 456 U S 63, 76 (1982), citing 
Transworld Airlines, Inc v Hardison, 432 US 63, 79 (1977); Ac­
cord, United Steelworkers of America v Weber, 443 US 193 (1979).6

T hus, while the decisions below purport to apply the 
teachings o f Weber, supra, the courts below glossed over the 
role of the collective bargain ing  agreem ent which constituted 
the voluntary affirmative action plan upheld in Weber, 443 US 
at 197. If  anything, Weber stands for the proposition that 
employers and unions m ay (at least in the private sector) jo in

5 Aside from general population charts and graphs presented by the 
C hief of Police, the Board held a single public hearing at which a num ber 
of individuals related instances of discrim ination involving the D etroit 
Police D epartm ent. Although the D etroit C ity C harter vested the Board 
with the power to subpoena witnesses, adm inister oaths and require pro­
duction of evidence, the Board did not exercise any of these powers (J .A . 
587-88), and m ade no attem pt to verify the various incidents of past 
discrim ination described by m em bers of the audience. (J .A . 1131-33).

6 T o  that end, this C ourt has frequently reaffirm ed its adherence to the 
policy favoring m inim um  governm ental intervention in collective b a r­
gaining. California Brewers Association v Bryant, 444 US 598, 608 (1980). 
T he decisions below can only serve to denegrate this sound policy.



8

together in form ulating appropriate  affirm ative action policies 
which advance and  protect the interests of all em ployees.7

If allowed to stand, the decision below sets a d isturbing 
precedent for the proposition that m unicipal governm ents are 
com petent to m ake valid findings of d iscrim ination and m ay 
unilaterally im plem ent “ rem edies” based on those “ findings” 
in the absence of legislative standards, and in derogation of 
the collective bargain ing  process. T he decisions below, there­
fore, th reaten  the collective bargaining process in the public 
sector and contravene the strong national policy favoring a 
m inim um  of governm ental intrusion in collective bargaining, 
espoused in American Tobacco, supra.

7 In 1968, the M ichigan legislature, in an era of public employee strikes, 
determ ined that it would be appropriate to withhold from police officers 
and firefighters the opportunity  to strike with a com pulsory arbitration  
statute. Accordingly, the M ichigan legislature enacted Act 312, M C LA  
423.231, et seq. ; M SA 17.455(31), et seq. Act 312 seeks to accomplish its 
purpose — “ an alternative, expeditious, effective and binding procedure 
for the resolution of [interest] disputes’ ’ — through the creation of a final 
and binding compulsory arbitration  scheme derived from the broad con­
stitutional grant o f authority  in M IC H . C O N S T , art. 4, §48. Binding 
arbitration  under Act 312 is composed of a num ber of discrete, legisla­
tively described phases and procedural safeguards, (e.g ., such m atters as 
evidentiary guidelines, subpoena powers, a requirem ent of w ritten find­
ings of fact, and a m andatory w ritten opinion and order.) M C LA  
§423.236-.238; MSA §17.455(36)-.455(38).



9

T H E R E  E X IS T S  A ST R O N G  N E E D  FO R  T H IS  
C O U R T  T O  SE T  F O R T H  A P P R O P R IA T E  
STANDARDS A N D  G U ID E L IN E S  O U T L IN ­
IN G  T H E  P E R M IS S IB L E  USE O F  A F FIR M A ­
T IV E  A C T IO N  IN  P U B L IC  E M PL O Y M E N T .

Am icus, F raternal O rd er of Police, State L abor Council, is 
the exclusive bargaining agent for approxim ately three thou­
sand, five hundred  (3,500) law enforcem ent officers th rough­
out the state, representing approxim ately two hundred  fifty 
(250) collective bargain ing  units. T he adm inistration of these 
labor contracts includes all m atters concerning “ wages, hours 
and other terms and conditions of em ploym ent’ ’. PER A , supra. 
Included within this area of responsibility is the often delicate 
problem  of affirmative action as it impacts upon term s and 
conditions of em ploym ent.8

Amicus is increasingly confronted with the question of affir­
mative action as it relates to the adm inistration and negotiation 
of collective bargaining agreements. W hile this C ourt in Weber, 
supra, recognized that affirmative action is a proper subject of 
collective bargaining (at least in the private sector), this ques­
tion m ust of necessity be dealt with in a vacuum  absent 
definitive guidelines and criteria from this Court.

8 U nder both PER A  and Act 312, the M ichigan legislature has deter­
m ined the collective bargaining system to be most appropriate for public 
employers and their employees to negotiate regarding term s and condi­
tions of em ploym ent. M oreover, the give and take of the collective 
bargaining process is capable of producing a creative alternative to any 
quota that would satisfy the constitutional dem ands to rem edy past 
discrim ination. T hus, in stark contrast to the necessarily unregulated, in­
formal determ ination capable of being m ade by the m unicipal govern­
m ent as em ployer, through its Board of Police Com m issioners, Act 312, 
through its express and detailed standards, is considerably m ore con­
ducive to accurate and qualified determ inations.

II.



10

Amici subm it that the instant case provides the factual 
background and  offers the C ourt the basis and opportunity  for 
a proper and decisive decision in this area. A definitive deci­
sion from  this C ourt will not only lim it the power of m unicipal 
governm ent to discrim inate on the basis of race, bu t m ay also 
provide appropriate  guidelines for the incorporation of appro­
priate  affirm ative action program s into collective bargaining 
agreem ents. T he absence of such guidelines com m end them ­
selves to granting the W rit in this case.

C O N C L U S IO N

T he decisions below erroneously confer an “ area of discre­
tio n ”  on m unicipal employers to unilaterally im plem ent 
racial quotas for police prom otions w ithout any of the re ­
quisite safeguards against a rb itra ry  action. As a public 
em ployer, a m unicipal governm ent which acts without the 
benefit o f legislatively defined criteria is, and  shall be, con­
sidered incom petent to m ake valid findings of discrim ination, 
and to unilaterally im plem ent purported  “ rem edies”  for such 
discrim ination in the form  of racial quotas. Yet, in the absence 
of definitive guidance from  this C ourt, the decisions below 
stand as the state of the law in this area and threaten  the 
creative input of the collective bargaining process as it impacts 
on perm issible affirm ative action. These reasons, am ong 
others, com m end granting the W rit.

Respectfully subm itted,

/s /  J ohn  A. L yons

Counsel of R ecord for Amici C uriae
State L abor Council and M ichigan
State Lodge — Fraternal O rder of
Police
(R ogue Tyson on Brief)



la

P U B L IC  E M P L O Y M E N T  R E L A T IO N S  A C T

A N  A C T  to prohibit strikes by certain public employees; to 
provide review from  disciplinary action w'ith respect thereto; 
to provide for the m ediation of grievances and the holding of 
elections; to declare and protect the rights and privileges of 
public employees; and to prescribe m eans of enforcem ent and 
penalties for the violation of the provisions o f this act.

The People of the State of Michigan enact:
423.201 D efin itio n s; r ig h ts  o f pu b lic  em ployees.

Sec. 1. As used in this act:

(a) ‘ ‘ Strike ’ ’ m eans the concerted failure to report for d u ty , 
the wilful absence from one’s position, the stoppage of work, 
or the abstinence in whole or in  part from  the full, faithful, and 
proper perform ance of the duties of em ploym ent, for the p u r­
pose of inducing, influencing, or coercing a change in the con­
ditions, or com pensation, or the rights, privileges, or obliga­
tions of em ploym ent . This act shall not be construed to lim it, 
im pair, or affect the right of a public employee to the expres­
sion or com m unication of a viewy grievance, com plaint, or 
opinion on any m atter related to the conditions or com pensa­
tion of public em ploym ent or their betterm ent, so long as the 
same is not designed to and does not interfere with the full, 
faithful, and proper perform ance of the duties of em ploym ent.

(b) “ Com m ission”  m eans the em ploym ent relations com ­
mission as created in section 3 of Act No. 176 of the Public 
Acts of 1939, as am ended, being section 423.3 of the M ichi­
gan Com piled Laws.

423 .202  P u b lic  em ployee; d e fin itio n ; s trike  p ro h ib ite d .
Sec. 2. No person holding a position by appointm ent or 

em ploym ent in the governm ent of the state of M ichigan, or in 
the governm ent of any 1 or m ore of the political subdivisions



2a

thereof, or in the public school service, or in any public or 
special district, or in the service of any authority , comm ission, 
or board , or in any other branch  of the public service, 
hereinafter called a “ public em ployee,”  shall strike.

423 .203  Public  em ployees; persons in  au th o rity  approv ing  
o r consenting to  strike p roh ib ited ; p a rtic ipa ting  in  sub­
m itta l  o f g rievance .
Sec. 3. No person exercising any authority , supervision or 

direction over any public employee shall have the power to 
authorize, approve or consent to a strike by public employees, 
and  such person shall not authorize, approve or consent to 
such strike, nor shall any such person discharge or cause any 
public employee to be discharged or separated from  his or her 
em ploym ent because of participation in the submission of a 
grievance in accordance with the provisions of section 7.

423 .204a A pplication of act to state civil service em ployees.
Sec. 4a. T he provisions of this act as to state employees 

w ithin the jurisdiction of the civil service commission shall be 
deem ed to apply in so far as the power exists in the legislature 
to control em ploym ent by the state or the em olum ents thereof.

423.205 Repealed. 1965, p . 750, Act 379, Im d . E ff.Ju ly  23.

423 .206  P ub lic  em ployee; conduct deem ed strike; p ro ­
ceeding to de te rm ine  v io la tion  of act; tim e; decision, 
review .
Sec. 6. N otw ithstanding the provisions of any other law, 

any person holding such a position who, by concerted action 
with others, and w ithout the lawful approval of his superior, 
wilfully absents him self from his position, or abstains in whole 
or in part from the full, faithful and proper perform ance of his 
duties for the purpose o f inducing, influencing or coercing a 
change in the conditions or com pensation, or the rights,



3a

privileges or obligations of em ploym ent shall be deem ed to be 
on strike b u t the person, upon request, shall be entitled to a 
determ ination as to w hether he did violate the provisions of 
this act. T he request shall be filed in w riting, with the officer 
or body having power to rem ove or discipline such employee, 
w ithin 10 days after regular com pensation of such employee 
has ceased or other discipline has been imposed. In  the event 
of such request the officer or body shall w ithin 10 days com ­
mence a proceeding for the determ ination o f w hether the p ro ­
visions of this act have been violated by the public employee, 
in accordance with the law and regulations appropriate  to a 
proceeding to rem ove the public employee. T he proceedings 
shall be undertaken  without unnecessary delay. T he decision 
of the proceeding shall be m ade w ithin 10 days. If  the em ­
ployee involved is held to have violated this law and his em ­
ploym ent term inated or o ther discipline im posed, he shall 
have the right of review to the circuit court having jurisdiction 
of the parties, w ithin 30 days from  such decision, for determ i­
nation w hether such decision is supported by com petent, 
m aterial and substantial evidence on the whole record.

423 .207  R equest for m ed ia tio n  of g rievances; pow ers of 
com m ission; no tice  of sta tus of nego tia tions; a p p o in t­
m en t of m ed ia to r.
Sec. 7. (1) U pon the request of the collective bargaining 

representative defined in section 11 or, if a representative has 
not been designated or selected, upon the request of a majority 
of any given group of public employees evidenced by a petition 
signed by the m ajority and delivered to the commission, or 
upon request of any public employer of the employees, the 
commission forthwith shall m ediate the grievances set forth in 
the petition or notice, and for the purposes of m ediating the 
grievances, the commission shall exercise the powers and 
authority conferred upon the commission by sections 10 and 11



4a

of Act No. 176 of the Public Acts of 1939, as am ended, being 
sections 423.10 and 423.11 of the M ichigan Com piled Laws.

(2) A t least 60 days before the expiration date of a collective 
bargain ing  agreem ent, the parties shall notify the commission 
of the status of negotiations. If  the dispute rem ains unresolved 
30 days after the notification on the status of negotiations and 
a request for m ediation is not received, the comm ission shall 
appoint a m ediator.

423 .209  P ub lic  em ployees fo rm ing  or jo in in g  lab o r o rgan ­
izations; collective barg a in in g .
Sec. 9. It shall be lawful for public employees to organize 

together or to form , jo in  or assist in labor organizations, to 
engage in lawful concerted activities for the purpose of collec­
tive negotiation or bargain ing  or other m utual aid and protec­
tion, or to negotiate or bargain  collectively with their public 
em ployers through representatives of their own free choice.

423 .210  P ro h ib ite d  conduct; service fee.
Sec. 10. (1) It shall be unlawful for a public em ployer or 

an officer or agent of a public em ployer (a) to interfere with, 
restrain  or coerce public employees in the exercise of their 
rights guaranteed in section 9; (b) to initiate, create, dom i­
nate, contribute to, or interfere with the form ation or adm in­
istration of any labor organization: Provided, T ha t a public 
em ployer shall not be prohibited from  perm itting  employees 
to confer with it during w orking hours without loss of tim e or 
pay; (c) to discrim inate in regard to hire, term s or other condi­
tions of em ploym ent in order to encourage or discourage 
m em bership in a labor organization: Provided further, T h a t 
nothing in this act or in any law of this state shall preclude a 
public em ployer from m aking an agreem ent with an exclusive 
bargaining representative as defined in section 11 to require as 
a condition of employment that all employees in the bargaining



5a

unit pay to the exclusive bargaining representative a service fee 
equivalent to the am ount of dues uniformly required of m em ­
bers of the exclusive bargaining representative; (d) to discrimi­
nate against a public employee because he has given testimony 
or instituted proceedings under this act; or (e) to refuse to 
bargain  collectively with the representatives of its public 
employees, subject to the provisions of section 11.

(2) It is the purpose of this am endatory act to reaffirm the 
continuing public policy of this state that the stability and effec­
tiveness of labor relations in the public sector require, if such re­
quirem ent is negotiated with the public employer, that all 
employees in the bargaining unit shall share fairly in the finan­
cial support of their exclusive bargaining representative by pay­
ing to the exclusive bargaining representative a service fee which 
may be equivalent to the am ount of dues uniformly required of 
members of the exclusive bargaining representative.

(3) It shall be unlawful for a labor organization or its agents
(a) to restrain or coerce: (i) public employees in the exercise of 
the rights guaranteed in section 9: Provided, T ha t this subdivi­
sion shall not im pair the right of a labor organization to 
prescribe its own rules with respect to the acquisition or reten­
tion of m em bership therein; or (ii) a public employer in the 
selection o f its representatives for the purposes of collective 
bargaining or the adjustm ent of grievances; (b) to cause or a t­
tem pt to cause a public employer to discriminate against a 
public employee in violation of subdivision (c) of subsection (1); 
or (c) to refuse to bargain collectively with a public employer, 
provided it is the representative of the public em ployer’s 
employees subject to section 11.

423 .211  P u b lic  em ployees; d es ig n a tio n  o f b a rg a in in g
rep resen ta tiv es; g rievances o f in d iv id u a l em ployees.
Sec. 11. Representatives designated or selected for p u r­

poses of collective bargaining by the m ajority of the public



6a

employees in a unit appropriate for such purposes, shall be the 
exclusive representatives of all the public employees in such 
unit for the purposes of collective bargaining in respect to rates 
of pay, wages, hours of em ploym ent or o ther conditions of 
em ploym ent, and  shall be so recognized by the public 
employer: P rovided, T h a t any individual employee at any 
tim e m ay present grievances to his em ployer and have the 
grievances adjusted, w ithout intervention of the bargaining 
representative, if the adjustm ent is not inconsistent with the 
term s of a collective bargaining contract or agreem ent then in 
effect, provided that the bargain ing  representative has been 
given opportunity  to be present at such adjustm ent.

423 .212  C ollective b a rg a in in g  rep re sen ta tiv e ; p e titio n ;
in v es tig a tio n ; no tice ; h e a rin g ; e lec tion  b y  secret ba llo t;
ce rtif ic a tio n  o f resu lts; consen t e lection .
Sec. 12. W hen a petition is filed, in accordance with rules 

prom ulgated by the commission:

(a) By a public employee or group of public employees, or 
an individual or labor organization acting in their behalf, 
alleging that 30% or m ore of the public employees w ithin a 
un it claim ed to be appropriate for such purpose wish to be 
represented for collective bargaining and that their public 
em ployer declines to recognize their representative as the 
representative defined in section 11, or assert that the in ­
dividual or labor organization, which is certified or is being 
currently  recognized by their public em ployer as the bargain ­
ing representative, is no longer a representative as defined in 
section 11; or

(b) By a public em ployer or his representative alleging that 
1 or m ore individuals or labor organizations have presented to 
him  a claim to be recognized as the representative defined in 
section 11; T he commission shall investigate the petition and,



7a

if it has reasonable cause to believe that a question of represen­
tation exists, shall provide an appropriate  hearing  after due 
notice. I f  the comm ission finds upon the record of the hearing 
that such a question of representation exists, it shall direct an 
election by secret ballot and  shall certify the results thereof. 
N othing in this section shall be construed to prohibit the waiv­
ing of hearings by stipulation for the purpose of a consent elec­
tion in conform ity with the rules of the commission.

423 .213  D ecision  as to  a p p ro p ria te  collective b a rg a in in g
u n it;  su p erv iso r o f fire  fig h tin g  p e rso n n e l.
Sec. 13. The commission shall decide in each case, to insure 

public employees the full benefit of their right to self-organiza­
tion, to collective bargaining and otherwise to effectuate the 
policies of this act, the unit appropriate for the purposes of 
collective bargaining as provided in section 9e of Act No. 176 of 
the Public Acts of 1939, as am ended, being section 423.9e of 
the M ichigan Com piled Laws: Provided, T hat in any fire 
departm ent, or any departm ent in whole or part engaged in, or 
having the responsibility of, fire fighting, no person subor­
dinate to a fire commission, fire commissioner, safety director, 
or other similar administrative agency or adm inistrator, shall 
be deemed to be a supervisor.

423 .214  E lections; e lig ib ility  to  vote; ru les; ru n o ff  elec­
tio n ; effect o f collective b a rg a in in g  ag reem en t.
Sec. 14. A n election shall not be directed in any bargaining 

un it or any subdivision w ithin which, in the preceding 
12-month period, a valid election was held. T he commission 
shall determ ine who is eligible to vote in the election and shall 
prom ulgate rules governing the election. In  an election in ­
volving m ore than  2 choices, where none of the choices on the 
ballot receives a m ajority vote, a runoff election shall be con­
ducted between the 2 choices receiving the 2 largest num bers 
of valid votes cast in the election. An election shall not be



8a

directed in any bargain ing  un it or subdivision thereof where 
there is in force and effect a valid collective bargaining agree­
m ent which was not prem aturely extended and which is of fixed 
duration. A collective bargaining agreem ent shall not bar an 
election upon the petition of persons not parties thereto where 
m ore than  3 years have elapsed since the agreem ent’s execution 
or last timely renewal, whichever was later.

423 .215  C ollective b a rg a in in g ; d u tie s  of em ployer an d  
em ployees’ rep re sen ta tiv e ; subjects an d  lim ita tio n s .
Sec. 15. A public em ployer shall bargain  collectively with 

the representatives of its employees as defined in section 11 
and  is authorized to m ake and  en ter into collective bargaining 
agreem ents with such representatives. For the purposes of this 
section, to bargain  collectively is the perform ance of the 
m utual obligation of the em ployer and the representative of 
the employees to m eet at reasonable times and confer in good 
faith with respect to wages, hours, and other term s and condi­
tions of em ploym ent, or the negotiation of an agreem ent, or 
any question arising thereunder, and the execution of a w rit­
ten contract, ordinance or resolution incorporating any agree­
m ent reached if requested by either party , bu t such obligation 
does not compel either party  to agree to a proposal or require 
the m aking of a concession.

423 .216  V io la tio n s  o f §423.210 as u n fa ir  lab o r prac tices; 
rem ed ies; p rocedu res.
Sec. 16. Violations of the provisions of section 10 shall be 

deem ed to be unfair labor practices rem ediable by the com ­
mission in the following m anner:

(a) W henever it is charged that any person has engaged in 
or is engaging in any such unfair labor practice, the com m is­
sion, or any agent designated by the commission for such p u r­
poses, m ay issue and cause to be served upon the person a



9a

com plaint stating the charges in that respect, and containing a 
notice o f hearing  before the comm ission or a com m issioner 
thereof, or before a designated agent, at a place therein fixed, 
not less than  5 days after the serving o f the com plaint. No 
com plaint shall issue based upon any unfair labor practice oc­
curring m ore than  6 m onths prior to the filing of the charge 
with the commission and the service o f a copy thereof upon the 
person against whom  the charge is m ade, unless the person 
aggrieved thereby was prevented from  filing the charge by 
reason of service in the arm ed forces, in which event the 
6-m onth period shall be com puted from the day of his 
discharge. Any com plaint m ay be am ended by the com m is­
sioner or agent conducting the hearing or the comm ission, at 
any tim e prior to the issuance of an order based thereon. The 
person upon whom  the com plaint is served m ay file an answer 
to the original or am ended com plaint and appear in person or 
otherwise and give testim ony at the place and tim e fixed in the 
com plaint. In  the discretion of the com m issioner or agent con­
ducting the hearing or the comm ission, any other person m ay 
be allowed to intervene in the proceeding and to present 
testim ony. Any proceeding shall be conducted pursuan t to 
chapter 4 of Act No. 306 of the Public Acts of 1969, as 
am ended, being sections 24.271 to 24.287 of the M ichigan 
Com piled Laws.

(b) T he testim ony taken by the com m issioner, agent, or 
the commission shall be reduced to w riting and filed with the 
commission. Thereafter the commission upon notice m ay 
take further testim ony or hear argum ent. If  upon the prepon­
derance of the testim ony taken the commission is of the opin­
ion that any person nam ed in the com plaint has engaged in or 
is engaging in the unfair labor practice, then it shall state its 
findings of fact and shall issue and cause to be served on the 
person an order requiring him  to cease and desist from the u n ­
fair labor practice, and to take such affirmative action includ­
ing reinstatem ent of employees with or without back pay as



10a

will effectuate the policies of this act. T he order m ay further 
require the person to m ake reports from tim e to tim e showing 
the extent to which he has complied with the order. If  upon the 
preponderance of the testim ony taken the comm ission is not of 
the opinion that the person nam ed in the com plaint has en ­
gaged in or is engaging in the unfair labor practice, then the 
com m ission shall state its findings of fact and shall issue an 
o rder dism issing the com plaint. N o order of the commission 
shall requ ire  the reinsta tem ent of any individual as an 
employee who has been suspended or discharged, or the pay­
m ent to him  of any back pay, if the individual was suspended 
or discharged for cause. If  the evidence is presented before a 
com m issioner o f the com m ission , o r before exam iners 
thereof, the com m issioner, or exam iners shall issue and cause 
to be served on the parties to the proceeding a proposed 
report, together with a recom m ended order, which shall be 
filed with the comm ission, and if an  exception is not filed 
w ithin 20 days after service thereof upon the parties, or within 
such further period as the commission m ay authorize, the 
recom m ended order shall become the order of the commission 
and becom e effective as prescribed in the order.

(c) U ntil the record in a case has been filed in a court, the 
com m ission at any tim e, upon reasonable notice and in such 
m anner as it deems proper, m ay modify or set aside, in whole 
or in part, any findings or order m ade or issued by it.

(d) T he comm ission or any prevailing party  m ay petition 
the court of appeals for the enforcem ent of the order and for 
appropriate  tem porary  relief or restrain ing order, and shall 
file in the court the record in the proceedings. U pon the filing 
of the petition, the court shall cause notice thereof to be served 
upon the person, and thereupon shall have jurisdiction of the 
proceeding and shall sum m arily grant such tem porary  or pe r­
m anen t relief or restraining order as it deems ju st and proper, 
enforcing, m odifying, enforcing as so modified, or setting



11a

aside in whole or in p a rt the order of the commission. No ob­
jection that has not been urged before the comm ission, its 
com m issioner or agent, shall be considered by the court, 
unless the failure or neglect to urge the objection is excused 
because of extraordinary  circum stances. T he findings o f the 
comm ission w ith respect to questions of fact if supported by 
com petent, m aterial, and  substantial evidence on the record 
considered as a whole shall be conclusive. If  either party  ap­
plies to the court for leave to present additional evidence and 
shows to the satisfaction of the court that the additional 
evidence is m aterial and that there were reasonable grounds 
for the failure to present it in the hearing  before the com m is­
sion, its com m issioner or agent, the court m ay order the addi­
tional evidence to be taken before the com m ission, its com ­
m issioner or agent, and to be m ade a part of the record. The 
commission m ay m odify its findings as to the facts, or m ake 
new findings, by reason of additional evidence so taken and 
filed, and it shall file the m odifying or new findings, which 
findings with respect to questions of fact if supported by com ­
petent, m aterial, and substantial evidence on the record con­
sidered as a whole shall be conclusive, and shall file its recom ­
m endations, if any, for the m odification or setting aside of its 
original order. U pon the filing of the record with it the 
jurisdiction of the court shall be exclusive and its judgm ent 
and decree shall be final, except that the same shall be subject 
to review by the suprem e court in accordance w ith the general 
court rules.

(e) Any party  aggrieved by a final order of the commission 
granting or denying in whole or in part the relief sought may 
within 20 days of such order as a m atter of right obtain a 
review of the order in the court of appeals by filing in the court 
a petition praying that the order of the commission be 
modified or set aside, with copy of the petition filed on the 
commission, and thereupon the aggrieved party  shall file in



12a

the court the record in the proceeding, certified by the com ­
mission. U pon the timely filing of the petition, the court shall 
proceed in the same m anner as in the case of an  application by 
the comm ission under subsection (d), and shall sum m arily 
grant to the comm ission or to any prevailing party  such tem ­
porary  relief or restrain ing order as it deems ju st and proper, 
enforcing, m odifying, enforcing as so m odified, or setting 
aside in whole or in part the order of the commission. The 
findings of the comm ission with respect to questions of fact if 
supported by com petent, m aterial, and substantial evidence 
on the record considered as a whole shall be conclusive. If  a 
tim ely petition for review is not filed under this subdivision by 
an aggrieved party , it shall be conclusively presum ed that the 
com m ission’s order is supported by com petent, m aterial, and 
substantial evidence on the record considered as a whole, and 
the comm ission or any prevailing party  shall be entitled, upon 
application therefor, to a sum m ary order enforcing the com ­
m ission’s order.

( f ) T he com m encem ent of proceedings under subdivisions 
(d) or (e) shall not, unless specifically ordered by the court, 
operate as a stay of the com m ission’s order.

(g) Petitions filed under subdivisions (d) and (e) shall be 
heard  expeditiously by the court to which presented, and for 
good cause shown shall take precedence over all other civil 
m atters except earlier m atters of the same character.

(h) T he comm ission or any charging party  shall have 
power, upon issuance of a com plaint as provided in subdivi­
sion (a) charging that any person has engaged in or is engag­
ing in an unfair labor practice, to petition any circuit court 
w ithin any circuit where the unfair labor practice in question 
is alleged to have occurred or where such person resides or ex­
ercises or m ay exercise its governm ental authority , for ap ­
propriate tem porary relief or restraining order, in accordance



13a

with the general court rules, and the court shall have jurisdic­
tion to grant to the commission or any charging party  such tem ­
porary relief or restraining order as it deems just and proper.

(i) For the purpose of all hearings and investigations, which 
in the opinion of the commission are necessary and proper for 
the exercise of the powers vested in it under this section, the 
provisions of section 11 of Act No. 176 of the Public Acts of 
1939, as am ended, being section 423.11 of the M ichigan C om ­
piled Laws, shall be applicable, except that subpoenas may 
issue as provided in section 11 w ithout regard to whether 
m ediation shall have been undertaken.

(j) T he labor relations and m ediation functions of this act 
shall be separately adm inistered by the commission.

C O M P U L S O R Y  A R B IT R A T IO N

A N  A C T  to provide for compulsory arb itra tion  of labor 
disputes in m unicipal police and fire departm ents; to define 
such public departm ents; to provide for the selection of m em ­
bers of arb itration  panels; to prescribe the procedures and 
authority  thereof; and to provide for the enforcem ent and 
review of awards thereof.

The People of the State of Michigan enact:
4 2 3 .2 3 1  C o m p u lso ry  a r b i t r a t i o n  in  p o lic e  a n d  f ire

d ep a rtm en ts ; policy .
Sec. 1. It is the public policy of this state that in public police 

and fire departm ents, where the right of employees to strike is 
by law prohibited, it is requisite to the high m orale of such 
employees and the efficient operation of such departm ents to 
afford an  alternate, expeditious, effective and binding p ro ­
cedure for the resolution of disputes, and to that end the p ro­
visions of this act, providing for compulsory arb itration , shall 
be liberally construed.



14a

423 .232  “ P u b lic  po lice a n d  fire  d e p a r tm e n ts ,”  “ e m e r­
gency m ed ical service p e rso n n e l,”  an d  “ em ergency  
te lephone  o p e ra to r”  d efined ; p ro v is io n s  in ap p licab le  to 
c e rta in  persons.

Sec. 2. (1) Public police and fire departm ents m eans any 
departm ent of a city, county, village, or township having 
employees engaged as policemen, or in fire fighting or subject 
to the hazards thereof, em ergency m edical service personnel 
em ployed by a police or fire departm ent, or an emergency 
telephone operator em ployed by a police or fire departm ent.

(2) Em ergency medical service personnel for purposes of this 
act includes a person who provides assistance at dispatched or 
observed m edical emergencies occurring outside a recognized 
m edical facility including instances of heart attack, stroke, 
in jury  accidents, electrical accidents, drug  overdoses, im m i­
nen t childbirth , and o ther instances where there is the 
possibility of death or further injury; initiates stabilizing trea t­
m ent or transportation  of injured from the em ergency site; 
and  notifies police or interested departm ents of certain situa­
tions encountered including crim inal m atters, poisonings, 
and the report of contagious diseases. Em ergency telephone 
o p era to r for the purpose of this act includes a person 
em ployed by a police or fire departm ent for the purpose of 
relaying em ergency calls to police, fire, or em ergency medical 
service personnel.

(3) This act shall not apply to persons employed by a private 
em ergency medical service com pany who work under a con­
tract with a governm ental unit or personnel w orking in an 
em ergency service organization whose duties are solely o f an 
adm inistrative or supporting natu re  and who are not o ther­
wise qualified under subsection (2).



15a

423 .233  In it ia t io n  of b in d in g  a rb i tra t io n  p roceed ings; 
req u est.
Section 3. W henever in the course of m ediation of a public 

police or fire departm ent em ployee’s dispute, except a dispute 
concerning the in terpretation  or application of an existing 
agreem ent (a “ grievance”  dispute), the dispute has not been 
resolved to the agreem ent o f both parties w ithin 30 days o f the 
submission of the dispute to m ediation, or w ithin such further 
additional periods to which the parties m ay agree, the 
employees or em ployer m ay initiate b inding arb itra tion  p ro ­
ceedings by prom pt request therefor, in w riting, to the other, 
with copy to the em ploym ent relations commission.

423 .234  D elegates; selection; no tice.
Sec. 4. W ithin  10 days thereafter, the em ployer shall 

choose a delegate and the em ployees’ designated or selected 
exclusive collective bargaining representative, or if none, their 
previously designated representative in the prior m ediation 
and fact-finding procedures, shall choose a delegate to a panel 
of arbitration as provided in this act. T he em ployer and 
employees shall forthwith advise the other and the m ediation 
board of their selections.

423 .235  Selection an d  d esigna tion  o f im p a rtia l  a rb itra to r  
o r c h a irm a n  of a rb itra tio n  pane l; M ich igan  em p loy ­
m en t re la tio n s  com m ission  p an e l o f a rb itra to rs ;  ap ­
p o in tm e n t ,  te rm s , q u a lif ic a tio n s , a n d  re m o v a l of 
m em bers.
Sec. 5. (1) W ithin 7 days of a request from 1 or both pa r­

ties, the em ploym ent relations commission shall select from its 
panel of arbitrators, as provided in subsection (2), 3 persons as 
nom inees for im partial arb itra to r or chairm an of the arb itra­
tion panel. W ithin 5 days after the selection each party  m ay 
perem ptorily strike the nam e of 1 of the nom inees. W ithin 7 
days after this 5-day period, the commission shall designate 1



16a

of the rem aining nom inees as the im partial a rb itra to r or chair­
m an  of the arb itra tion  panel.

(2) T he em ploym ent relations comm ission shall establish 
and appoint a panel of arb itra tors, who shall be known as the 
M ichigan em ploym ent relations comm ission panel of a r­
bitrators. T he comm ission shall appoint m em bers for in ­
definite term s. M em bers shall be im partial, com petent and 
reputable citizens of the U nited  States and  residents of the 
state, and shall qualify by taking and subscribing the constitu­
tional oath  or affirm ation of office. T he commission m ay at 
any tim e appoint additional m em bers to the panel of a r­
b itrators, and  m ay rem ove existing m em bers w ithout cause.

4 2 3 .2 3 6  A r b i t r a to r ;  d u t ie s ;  h e a r in g ;  i n te r v e n o r s ;
ev idence; reco rd ; expenses; actions a n d  ru lings .
Sec. 6. U pon  the appointm ent of the arb itra to r, he shall 

proceed to act as chairm an of the panel of a rb itration , call a 
hearing, to begin w ithin 15 days and give reasonable notice of 
the tim e and place of the hearing. T he chairm an shall preside 
over the hearing  and shall take testim ony. U pon application 
and for good cause shown, and upon such term s and condi­
tions as are ju st, a person, labor organization, or governm en­
tal unit having a substantial interest therein m ay be granted 
leave to intervene by the arb itra tion  panel. Any oral or 
docum entary  evidence and other data  deem ed relevant by the 
arb itra tion  panel m ay be received in evidence. T he p ro ­
ceedings shall be inform al. Technical rules of evidence shall 
not apply and the com petency of the evidence shall not 
thereby be deem ed im paired. A verbatim  record of the p ro ­
ceedings shall be m ade and the arb itra to r shall arrange for the 
necessary recording service. T ranscripts m ay be ordered at 
the expense of the party  ordering them  but the transcripts 
shall not be necessary for a decision by the arb itration  panel. 
T he expense of the proceedings, including a fee to the chair­
m an, established in advance by the labor m ediation board



17a

shall be borne equally by each of the parties to the dispute and 
the state. T he delegates, if public officers or employees, shall 
continue on the payroll of the public em ployer at their usual 
rate of pay. The hearing conducted by the arb itra tion  panel 
m ay be adjourned from  tim e to tim e, bu t, unless otherwise 
agreed by the parties, shall be concluded within 30 days of the 
tim e of its com m encem ent. Its m ajority  actions and rulings 
shall constitute the actions and rulings o f the arbitration 
panel.

423 .237  O ath s; subpoenas; fa ilu re  to  obey , co n tem p t of
cou rt.
Sec. 7. T he arb itra tion  panel m ay adm inister oaths, re­

quire the attendance of witnesses, and the production of such 
books, papers, contracts, agreem ents and docum ents as m ay 
be deem ed by it m aterial to a ju st determ ination o f the issues 
in dispute, and for such purpose m ay issue subpoenas. If  any 
person refuses to obey a subpoena, or refuses to be sworn or to 
testify, or if any witness, party  or attorney is guilty of any con­
tem pt while in attendance at any hearing, the arbitration 
panel m ay, or the attorney general if requested shall, invoke 
the aid of any circuit court w ithin the jurisdiction in which the 
hearing is being held, which court shall issue an appropriate 
order. Any failure to obey the order m ay be punished by the 
court as contem pt.

4 2 3 .2 3 7 a  R e m a n d in g  d is p u te  fo r  f u r th e r  c o lle c tiv e
b a rg a in in g .
Sec. 7a. At any tim e before the rendering of an aw ard, the 

chairm an of the arbitration panel, if he is of the opinion that it 
would be useful or beneficial to do so, m ay rem and the dispute 
to the parties for further collective bargaining for a period not 
to exceed 3 weeks. If  the dispute is rem anded for further col­
lective bargaining the tim e provisions of this act shall be ex­
tended for a tim e period equal to that of the rem and. The



18a

charim an of the panel of arb itra tion  shall notify the em ploy­
m ent relations commission of the rem and.

423 .238  Id en tif ic a tio n  of econom ic issues in  d ispu te ; su b ­
m ission  a n d  ad o p tio n  of se ttlem en t offers; find ings,
o p in io n , a n d  o rd er.
Sec. 8. A t or before the conclusion of the hearing held p u r­

suant to section 6, the arb itra tion  panel shall identify the 
economic issues in dispute, and direct each of the parties to 
subm it, w ithin such tim e limit as the panel shall prescribe, to 
the arb itra tion  panel and to each other its last offer of settle­
m ent on each economic issue. T he determ ination of the a r­
b itration  panel as to the issues in dispute and as to which of 
these issues are economic shall be conclusive. T he arbitration 
panel, w ithin 30 days after the conclusion of the hearing, or 
such further additional periods to which the parties m ay 
agree, shall m ake w ritten findings of fact and prom ulgate a 
w ritten opinion and order upon the issues presented to it and 
upon the record m ade before it, and shall mail or otherwise 
deliver a true copy thereof to the parties and their represen­
tatives and to the em ploym ent relations commission. As to 
each economic issue, the arb itration  panel shall adopt the last 
offer of settlem ent which, in the opinion of the arbitration 
panel, m ore nearly  complies with the applicable factors 
prescribed in section 9. T he findings, opinions and order as to 
all o ther issues shall be based upon the applicable factors 
prescribed in section 9. This section as am ended shall be appli­
cable only to arbitration proceedings initiated under section 3 
on or after Ja n u ary  1, 1973.

423 .239  F in d in g s  a n d  o rders; facto rs considered .
Sec. 9. W here there is no agreem ent between the parties, 

or where there is an agreem ent but the parties have begun 
negotiations or discussions looking to a new agreem ent or



19a

am endm ent of the existing agreem ent, and wage rates or 
o ther conditions of em ploym ent under the proposed new or 
am ended agreem ent are in dispute, the arb itra tion  panel shall 
base its findings, opinions and order upon the following fac­
tors, as applicable:

(a) The lawful authority  of the em ployer.

(b) Stipulations of the parties.

(c) T he interests and welfare of the public and  the financial 
ability o f the un it of governm ent to m eet those costs.

(d) Com parisons of the wages, hours and  conditions of 
em ploym ent of the employees involved in the arb itra tion  p ro ­
ceeding with the wages, hours and conditions of em ploym ent 
of other employees perform ing sim ilar services and with other 
employees generally:

(i) In  public em ploym ent in com parable com m unities.

(ii) In  private em ploym ent in com parable com m unities.

(e) T he average consum er prices for goods and services, 
comm only known as the cost of living.

(f) T he overall com pensation presently received by the 
employees, including direct wage com pensation, vacations, 
holidays and other excused tim e, insurance and pensions, 
m edical and  hospitalization benefits, the continuity  and 
stability of em ploym ent, and all o ther benefits received.

(g) C hanges in any of the foregoing circum stances during 
the pendency of the arbitration proceedings.

(h) Such other factors, not confined to the foregoing, which 
are norm ally or traditionally taken into consideration in the 
determ ination of wages, hours and conditions of em ploym ent 
through voluntary collective bargaining, m ediation, fact­
finding, arbitration or otherwise between the parties, in the 
public service or in private em ploym ent.



20a

423 .2 4 0  M a jo r ity  decision  of a rb i tra t io n  p an e l fina l a n d  
b in d in g ; en fo rcem en t; effect o f new  m u n ic ip a l fiscal 
y ea r; aw a rd in g  increased  ra tes  o r benefits  re tro ac tiv e ly ; 
am e n d in g  o r m od ify ing  aw ard  of a rb itra tio n .
Sec. 10. A m ajority decision of the arb itra tion  panel, if 

supported  by com petent, m aterial, and substantial evidence 
on the whole record, shall be final and binding upon the p a r­
ties, and m ay be enforced, at the instance of either party  or of 
the a rb itra tion  panel in the circuit court for the county in 
which the dispute arose or in which a m ajority of the affected 
employees reside. T he com m encem ent of a new m unicipal 
fiscal year after the initiation of arb itration  procedures under 
this act, bu t before the arb itra tion  decision, or its enforce­
m ent, shall not be deem ed to render a dispute m oot, or to 
otherwise im pair the jurisdiction or authority  of the a rb itra ­
tion  panel or its decision. Increases in rates of com pensation 
or other benefits m ay be aw arded retroactively to the com ­
m encem ent of any period(s) in dispute, any other statute or 
charter provisions to the contrary  notw ithstanding. At any 
tim e the parties, by stipulation, m ay am end or modify an 
aw ard o f arb itration .

423 .241  V io la tio n  o f law ful en fo rcem en t o rd er; p en a lty .
Sec. 11. W here an employee organization recognized p u r­

suant to Act No. 336 of the Public Acts of 1947, as am ended, 
as the bargaining representative of employees subject to this 
act, willfully disobeys a lawful order of enforcem ent by a cir­
cuit court pursuant to section 10, or willfully encourages or of­
fers resistance to such order, w hether by a strike or otherwise, 
the punishm ent for each day that such contem pt persists, may 
be a fine fixed in the discretion of the court in an am ount not to 
exceed $250.00 per day. W here an em ployer, as that term  is 
defined by Act No. 336 of the Public Acts of 1947, as



21a

am ended, willfully disobeys a lawful order of enforcem ent by 
the circuit court or willfully encourages or offers resistance to 
such order, the punishm ent for each day that such contem pt 
persists m ay be a fine, fixed at the discretion o f the court, an 
am ount not to exceed $250.00 per day to be assessed against 
the em ployer.

423 .242 Judicia l review; scope; stay.
Sec. 12. O rders of the arb itration  panel shall be reviewable 

by the circuit court for the county in which the dispute arose or 
in which a m ajority  o f the affected employees reside, bu t only 
for reasons that the arb itra tion  panel was w ithout or exceeded 
its jurisdiction; the order is unsupported  by com petent, 
m aterial and substantial evidence on the whole record; or the 
order was procured by fraud, collusion or other sim ilar and 
unlawful m eans. T he pendency of such proceeding for review 
shall not autom atically stay the order of the arb itra tion  panel.

423 .243  E xisting conditions; continuance, change.
Sec. 13. D uring the pendency of proceedings before the a r­

bitration panel, existing wages, hours and o ther conditions of 
em ploym ent shall not be changed by action of either party  
without the consent of the other bu t a party  m ay so consent 
without prejudice to his rights or position under this act.

423 .244  Act supplem entary.
Sec. 14. This act shall be deem ed as supplem entary to Act 

No. 336 of the Public Acts of 1947, as am ended, being sec­
tions 423.201 to 423.216 of the Com piled Laws of 1948, and 
does not am end or repeal any of its provisions; bu t any provi­
sions thereof requiring fact-finding procedures shall be inap­
plicable to disputes subject to arbitration under this act.



22a

423 .246  V io la tions o f act; im p riso n m en t p ro h ib ite d .
Sec. 16. N o person shall be sentenced to a term  of im ­

prisonm ent for any violation of the provisions of this act or an 
order of the arb itra tion  panel.

423 .247  E ffective da te .
Sec. 17. T his act shall become effective on O ctober 1, 

1969.