Opinion
Docket No. 7,080.
Decided September 29, 1970. Leave to appeal granted February 12, 1971. 384 Mich. 806.
Appeal from Macomb, Alton H. Noe, J. Submitted Division 2 April 16, 1970, at Detroit. (Docket No. 7,080.) Decided September 29, 1970. Leave to appeal granted February 12, 1971. 384 Mich. 806.
Complaint for mandamus by Joseph Sloan and James Shipley against the City of Warren, Local 1250, AFSCME, and others to compel reinstatement of plaintiffs to their prior positions of city employment. Complaint dismissed. Plaintiffs appeal. Reversed and remanded for issuance of writ of mandamus.
David N. Walsh, for plaintiffs.
A.L. Zwerdling, for defendant union.
Emil E. Cardamone, City Attorney, and William S. Wolanin, Assistant City Attorney, for defendant City of Warren.
Plaintiffs Joseph Sloan and James Shipley filed this suit below seeking a writ of mandamus requiring the defendant, City of Warren, to reinstate plaintiffs to their prior positions of employment with the city. Defendants prevailed below and plaintiffs appeal as of right.
In 1951, defendant Local Union 1250, AFSCME (hereinafter the Union), was certified to represent the city's employees. At that time the city and Union entered into a written contract which provided, inter alia:
The contract was not a part of the record below. At oral argument before this Court, counsel for plaintiffs and union stipulated to the admission of the 1951 written contract to the record on appeal. Counsel for the City of Warren refused to so stipulate and was ordered to produce it.
" Section 4. When there are layoffs for any reason, the following procedure shall be followed:
* * *
"b. Thereafter, employees shall be laid off in line with their seniority. Employees with seniority who are qualified and willing to do the work of the employees to be displaced, in a lower classification, may do so at the current rate for the job in the lower classification. Employees not willing to take a job in a lower classification shall be laid off until a job in his classification is open". (Emphasis supplied.)
The contract was extended by oral agreement from year to year with various oral amendments agreed upon by the parties. The above noted provisions, allowing an employee to "bump" any other city employee with less seniority in a lower classification as long as he was "qualified", was retained.
In 1967, the City of Warren eliminated its garbage collection department and contracted the function out to a private firm. As a result of the ensuing layoffs, a number of the garbage collectors took advantage of the "bumping" provision to obtain new jobs within the city. Plaintiffs, maintenance men in the water department, were replaced by others with higher seniority from the sanitation department.
After exhausting their contractual grievance procedures within the union, plaintiffs went to the Warren City Civil Service Commission (hereinafter, the Commission). The Commission unanimously ruled, after a full hearing, that plaintiffs had been improperly removed from their jobs and ordered their reinstatement. The basis of the order was the finding that the "bumping" employees' prior job classification (Equipment Operator 1) did not involve the same degree of responsibility, authority, or technical ability as plaintiffs' job classification (Water and Sewer Maintenanceman 1). The city refused to comply with the order and the trial court dismissed plaintiffs' suit for mandamus.
At trial there appeared to be some disagreement as to whether plaintiffs had in fact exhausted their contractual grievance procedures. However, defendants have not raised the issue on appeal and the issue is assumed to be waived. GCR 1963, 813.1, 814.1.
Two issues are raised on appeal: first, whether the annual oral extension of the labor agreement is valid and enforceable, and second, whether the Commission had the jurisdiction and authority to order plaintiffs' reinstatement.
Plaintiffs argue that the oral contract is void on two grounds: it violates the statute of frauds (MCLA § 566.132 [Stat Ann 1953 Rev § 26.922]); and, notwithstanding the statute of frauds, labor agreements must be in writing. We disagree.
The contention that the contract is void due to the statute of frauds is without merit. The oral agreements each extended the written contract for a one-year period. Each oral extension was a contract to be performed within one year. McIntyre v. Smith-Bridgman Co. (1942), 301 Mich. 629. The extensions did not violate the statute. See, also, Reynick v. Allington Curtis Manufacturing Co. (1914), 179 Mich. 630; Sines v. Superintendents of the Poor (1884), 55 Mich. 383. H.J. Heinz Co. v. National Labor Relations Board (1941), 311 U.S. 514 ( 61 S Ct 320, 85 L Ed 309), is cited for the proposition that labor agreements must be reduced to writing. However, the issue in H.J. Heinz was whether the refusal of an employer to sign a written contract, after being requested by the union to do so, constituted unfair labor practice. As pointed out in United Shoe Workers of America, CIO v. LeDanne Footwear, Inc. (D Mass, 1949), 83 F. Supp. 714, 715:
"[T]he [lower] court relies on H.J. Heinz Co. v. National Labor Relations Board (1941), 311 U.S. 514, 525 ( 61 S Ct 320, 85 L Ed 309). That case, however, goes no farther than to hold that an employer who had arrived at an agreement with a union as a result of collective bargaining was guilty of an unfair labor practice in refusing at the union's request to embody that agreement in a written and signed contract. It in no way indicates that the Act makes any oral agreement between unions and employer unenforceable, or requires it to be reduced to writing when the parties made no objection to leaving it in oral form." (Emphasis supplied.)
The point was again made in Hamilton Foundry Machine Co. v. International Molders Foundry Workers of North America (1952), 193 F.2d 209, 214:
"We do not agree with appellees' contention that the National Labor Relations Act, as amended, 29 USCA § 151 et seq., requires the collective bargaining agreement to be reduced to writing and signed in order to be valid. The Act does not so state. In H.J. Heinz Co. v. NLRB (1941), 311 U.S. 514 ( 61 S Ct 320, 85 L Ed 309) and Cox v. Gatliff Coal Co. (ED Ky, 1945), 59 F. Supp. 882 [ aff'd (CA 6, 1945), 152 F.2d 52], it was stated that the Act contemplated that a collective bargaining agreement be in writing. Since those decisions, the Act has been amended by the Labor Management Relations Act of 1947, by which collective bargaining was defined as including `the execution of a written contract incorporating any agreement reached if requested by either party.' Section 158(d), Title 29 USCA. In our opinion, this contemplates valid oral agreements where neither party requests a written instrument. NLRB v. Scientific Nutrition Corp. (CA 9, 1950), 180 F.2d 447, 449; United Shoe Workers v. LeDanne Footwear (D Mass, 1949), 83 F. Supp. 714".
Moreover, the Public Employment Relations Act (MCLA § 423.201, et seq. [Stat Ann 1968 Rev § 17.455(1) et seq.]) (hereinafter the PERA), includes no requirement that agreements be written. Indeed, MCLA § 423.30 (Stat Ann 1968 Rev § 17.454), provides that, for the purposes of the section, collective bargaining includes, inter alia: "the execution of a written contract incorporating any agreement reached if requested by either party". (Emphasis supplied.) The section, thus, clearly assumes the validity of oral agreements, if a writing is not requested by either party. We conclude that a valid contract existed between the union and the City of Warren.
Plaintiffs' second issue centers around the city's refusal to reinstate them to their former jobs pursuant to the Commission's order. Plaintiffs claim the Commission's order was a valid exercise of its duty; defendants claim that, by virtue of the PERA, the negotiated labor agreement preempts civil service jurisdiction.
The Commission was established pursuant to the Warren City Charter, § 7.28, requirement that the city council establish a civil service plan by ordinance. In 1958, Warren City Ordinance No 18 was passed and provided:
"Section 1. There is hereby established a merit system for all positions in the civil service of the City of Warren, including unskilled labor. * * * Appointment to the city's service and promotions and transfers therein shall be based solely upon the fitness, training, seniority and experience of the individual.
* * *
"Section 7. The Board [the Commission] shall have the power to prescribe and enforce rules and regulations for carrying into effect the provisions of this ordinance. * * * It shall have the power to conduct and supervise all examinations and other tests for fitness to determine the qualifications of applicants for the city's service". (Emphasis supplied.)
We conclude that, in 1958, the Commission would have had jurisdiction, by virtue of the above-quoted ordinance, to resolve the dispute among the parties by determining whether the "bumping" employees met the qualifications for their new jobs and whether the new jobs were of a lower classification than the "bumping" employees' former positions, as required by both the labor agreement and civil service rules. It remains to be seen, however, whether that jurisdiction has been altered by later legislative and constitutional developments.
Michigan Const 1963, art 11, § 6, provides that:
"By ordinance or resolution of its governing body which shall not take effect until approved by a majority of the electors voting thereon, unless otherwise provided by charter, each * * * city * * * may establish, modify or discontinue a merit system for its employees." (Emphasis supplied.) We conclude that a preexisting civil service plan, adopted pursuant to a city charter which received a majority vote of the electors voting on the charter, would satisfy the requirements of the constitutional provision. However, a vote of the people would be required in order to modify or discontinue the plan after the constitution was adopted.
The concern of the convention members over the impact of this provision on cities such as Warren which had a preexisting civil service before the adoption of the constitution can be seen by reference to 2 Official Record, Constitutional Convention 1961, pp 2796, 2797:
"Mr. Allen: * * * The city charters of some of our cities provide that the local governing body may put in a civil service plan. This is done by ordinance and is not referred to a vote of the people. However, when the charter was adopted, the people voted on the charter. Now, I am wondering, under the language which is offered here, whether or not a city which has a charter which authorizes the city council to put in a civil service plan without a vote of the people would be permitted to do so.
"Mr. Martin: * * * [I] think it would. * * *
"Mr. Allen: * * * We have also a number of cities which in their charter have provided, or even by an ordinance which has been referred to a vote of the people, have set up a civil service plan, but then they want to abolish it or they want to modify it in some way. Would your amendment require * * * a vote of the people, even though the city charter provided that the city council could do it on its own vote?
"Mr. Martin: * * * The vote of the people refers to * * * `establish, modify or discontinue.' * * * I think a vote of the people would be required to modify or discontinue."
The defendants argue that under the PERA, enacted in 1965, collective bargaining agreements must prevail over civil service provisions. Defendants cite MCLA § 423.215 (Stat Ann 1968 Rev § 17.455), which requires municipal employees to "confer in good faith with respect to wages, hours, and * * * conditions of employment", as a statutory grant of power to the city and the union to bypass civil service requirements and as standing for the proposition that internal union grievance procedures should take care of disputes such as this. We do not agree.
The flaw in defendants' argument is their contention that the state legislature has modified the civil service provisions applying to employees of cities by the enactment of the PERA. It is hornbook law that statutes are to be read in conformity with the constitution. We do not accept the proposition inherent in defendants' argument that what the constitution gives the legislature can take away. We conclude that the commission had jurisdiction in the instant case to determine the skills and abilities needed for various jobs and the equality of the different job classifications.
Our holding that the Commission had jurisdiction to act as it did is not meant to imply that the Commission either does or does not have jurisdiction over other matters. Such questions are left for other cases.
The Commission's rules and regulations provide for the transfer of employees, in case of layoffs to equal or lower job classifications. The labor agreement, as written, contemplates transfers in case of layoffs to jobs of lower classifications, but appears from the testimony below to have been orally amended to also provide for transfers to jobs of equal classification in case of layoffs. To that extent, therefore, the labor agreement is entirely consistent with the civil service plan. In this case, it was inherent in the Commission's ruling that "Water and Sewer Maintenanceman 1" was a higher job classification than "Equipment Operator 1." Such a ruling was necessary to implement both the layoff provision of the Commission's rules and regulations and the "bumping" provision of the labor agreement. Since, by ordinance, the Commission is charged with the duty of classifying jobs, we conclude that the trial court should have followed the Commission's order.
City of Warren, Civil Service Commission, Rules Regulations Procedures (1965), Rule 20.
Reversed and remanded to the trial court for further action not inconsistent with this opinion. The trial court shall allow the defendants-appellees to present proofs in defense of this cause, and to defend on the merits. No costs, a public question being involved.
All concurred.