Opinion
Docket No. 78-2301.
Decided July 10, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for Michigan Employment Relations Commission.
Kasoff, Young, Gottesman, Kovinski, Friedman Walkon, P.C. (by Howard L. Shifman), for Teamsters Local No. 214.
Roger E. Craig, Corporation Counsel, George G. Matish, Deputy Corporation Counsel, and Michael A. Hurvitz, Assistant Corporation Counsel, for defendants.
Before: D.C. RILEY, P.J., and M.J. KELLY and BEASLEY, JJ.
On October 6, 1977, plaintiff, the union representative of correctional officers employed at the Detroit House of Correction (hereinafter, DeHoCo), petitioned the Michigan Employment Relations Commission (hereinafter, the Commission) for a formal determination as to whether the officers were eligible for arbitration under the compulsory arbitration statute, MCL 423.231 et seq.; MSA 17.455(31) et seq.
In an order dated May 17, 1978, the Commission held that it possessed the requisite jurisdiction necessary to effect a settlement of the controversy, and in addition ruled that the prison guards were within the act's coverage and therefore entitled to mandatory arbitration. The City of Detroit and DeHoCo appeal that determination by leave, raising three issues, only one of which merits distended consideration.
Defendants' initial argument, that the Commission lacks the jurisdiction and authority to hear and decide the question of plaintiff's eligibility for compulsory arbitration, has been recently rebuffed by this Court in In The Matter of Metropolitan Council 23, AFSCME, AFL-CIO, 89 Mich. App. 564; 280 N.W.2d 600 (1979), wherein it was held that the legislative intent to afford public employees within the scope of the act an expeditious and effective procedure for the resolution of disputes would be ill-served by imposing the protracted delays germane to initial court review and resolution of the act's comprehensiveness. Defendants' claim, therefore, is without merit.
MCL 423.231; MSA 17.455(31).
Defendants also maintain that the Commission erred in determining that DeHoCo is a state rather than a city facility.
MCL 423.232; MSA 17.455(32) defines "public police and fire department", to which the compulsory arbitration act applies, as follows:
"any department of a city, county, village or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof."
Assuming, arguendo, the validity of defendants' contention, Green v Dep't of Corrections, 30 Mich. App. 648, 652; 186 N.W.2d 792 (1971), aff'd 386 Mich. 459; 192 N.W.2d 491 (1971), we are no closer to a resolution of the ultimate dispute on appeal, which is, whether the Commission erroneously ruled that the correctional officers were within the purview of the act. As is readily apparent from the provision above, the focal point of conflict is not whether DeHoCo is a city or state institution, but rather the identity of the prison guards' employer. Since the guards are employed and paid by the City of Detroit, they clearly come, in this respect, within the ambit of the statute.
Hence, we turn to the dispositive issue, whether the Commission's holding that the officers in question were subject to the same or similar hazards as faced by Detroit policemen was in accordance with the law and supported by competent, material and substantial evidence. Const 1963, art 6, § 28, MCL 423.23(e); MSA 17.454(25)(e), Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich. 116, 121-124; 223 N.W.2d 283 (1974).
Executive Deputy Chief James Bannon testified regarding the hazards generally encountered by Detroit police officers. They included walking beats, riding motorcycles, responding to radio reports of crimes, riding in patrol cars, and investigating narcotics cases, sex-related offenses, robberies and homicides. The police are charged with the general enforcement of all the criminal laws of the state, be they misdemeanor, felony, or motor vehicle connected. Police officers have an obligation to carry their identification cards, badges and guns even when off duty, and, accordingly, to respond to life threatening situations at any time. Police must assist firemen in their work. They also must respond to and intervene in family squabbles, which is one of the most dangerous of police activities since, on the national average, 50% of the police officers killed or injured are killed or injured in responding to domestic calls. Statistics were introduced evidencing the high rate of injuries resulting throughout the entire spectrum of police activities. Bannon also indicated that, due to the stress of police work in urban communities, police officers have the highest occupational rates of suicide and divorce, and one of the highest rates of alcoholism in the country.
The functions of the correctional guards, and their attendant risks, were explained by various witnesses, including the director of DeHoCo. Their testimony may be summarized as follows: the officers are responsible for maintaining order throughout the detention facility, and also patrol its perimeters on foot and in vehicles. They are accountable for the custody of prisoners to and from police agencies, courts and hospitals. In the event of a prisoner escape, they pursue and initially attempt an apprehension, always with the aid of weapons. They search prisoners and visitors for contraband such as weapons or narcotics; however, their power extends only to detention of the wrongdoer — the local police are alerted to effectuate the arrest. Although the guards are on call 24 hours a day, they are not authorized to carry a weapon or make an off-duty arrest. Most do not carry guns as part of their daily routine, but a full range of weapons (including mace, teargas, and other riot equipment) are kept on the premises for issue when necessary. Officers have, on occasion, been assaulted through prisoner attack, though not anywhere nearly as frequently as Detroit policemen. However, the potential for these attacks coupled with instances of inter-inmate conflicts exposes them to risks from which they suffer physical injuries.
Upon a careful review of the evidence and testimony proffered, we are unable to reach the conclusion that the Commission's finding was devoid of the necessary record support. We view the instant case as a decidedly close one, and accordingly afford due deference to administrative expertise and decline to "invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably differing views". Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, supra, at 124.
Affirmed. Costs to plaintiff.
BEASLEY, J., concurred.
I agree with the majority on the first two issues: namely, the jurisdiction of the commission and should the correctional guards be employed by the City of Detroit. Since they are obviously not part of the city public police department, the dispositive issue here is whether they were, and are, subject to the same or similar hazards as those faced by Detroit policemen.
The interpretation and application of the statutory language embodied in MCL 423.232; MSA 17.455(32), by the MERC is the focal point of this argument. This language is as follows:
"Public police and fire departments means any department of a city, county, village, or township having employees engaged as policemen, or in firefighting or subject to the hazards thereof." (Emphasis added.)
I believe the MERC board and its hearing officer erred in determining that the correctional officers were subject to the hazards police officers encounter and I would find, therefore, that the plaintiffs were ineligible for compulsory arbitration under the statute. In Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich. 116, 121; 223 N.W.2d 283 (1974), it was stated:
"The standard of appellate review of MERC Board findings of fact is set forth in the labor mediation act as follows:
"`* * * The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive. * * *' MCL 423.23(e); MSA 17.454(25)(e).
"This standard comports with Const 1963, art 6, § 28 which sets forth the minimum constitutional scope of judicial review of administrative decisions."
Later in this case, the Supreme Court elaborated on this standard of review, stating:
"What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record — that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive fact-finding by displacing an agency's choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review."
There is no argument, and there can be no argument, that plaintiffs were members of the Detroit Police Department. Plaintiffs' counsel stipulated that they were not. Let us then examine the comparative hazards. The hazards of police department work were set out in the testimony of the Executive Deputy Chief of the Detroit Police Department, James Bannon. His testimony suggests that city police are exposed to hazards of such variety, scope, and intensity as to lead me to conclude that the MERC board's findings were not supported by competent, material and substantial evidence on the record considered as a whole.
The city police officers have a wide range of duties and resultant hazards, including walking beats, riding motorcycles, responding to radio reports of crimes, riding patrol cars, investigating narcotics cases, sex-related offenses, robberies and homicides. The police are charged with the general enforcement of all the criminal laws of the state, be they misdemeanor, felony, or motor-vehicle connected. Police officers have an obligation to carry their identification cards, badges, and guns even when off duty, and to respond to life threatening situations at any time. Police must assist firemen in their work. They also must respond to and intervene in family squabbles, which is one of the most dangerous of police activities since, on the national average, 50% of the police officers killed or injured are killed or injured in responding to domestic calls. Statistics were introduced showing the number of injuries resulting to police through the entire spectrum of police activities. They showed that out of approximately 4,000 field officers, 2,728 can be expected to be injured in some way in the course of a year. Deputy Chief Bannon also indicated that, due to the stress of police work in urban communities, police officers have the highest occupational rates of suicide and divorce, and one of the highest rates of alcoholism in the country.
The functions of the plaintiffs' correctional guards at the Detroit House of Correction (DeHoCo), and the hazards attendant to those functions, were outlined by its director, William Rucks. The following facts were revealed: The day shift at DeHoCo consists of about 22 correctional guards, only two of whom carry a weapon on duty. None of the correctional guards are authorized to carry a weapon or make an arrest while off-duty. If the guards discover that contraband is being smuggled into DeHoCo, they can only detain the wrongdoer. They must alert a local police department to effectuate the arrest. As to occupational hazards, witness Rucks related that, in his 23 years at DeHoCo, no guard had been stabbed or shot and he could only recall four to six guards being injured by prisoner attacks. Further, he recalled only about three incidents where weapons had to be issued to the correctional guards. Although there were other witnesses presented whose testimony also addressed this issue, their descriptions of the occupational hazards of the plaintiffs were consistent with that of Mr. Rucks.
I do not think that the plaintiffs carried their burden of establishing that they were, and are, subject to the risks and hazards to which members of the police department are subject. Therefore, the MERC board determination should be reversed and the plaintiffs held not entitled to compulsory arbitration under the statute.