Detroit Fire Fighters Ass'n, Local 344 v. City of Detroit

M. F. Cavanagh, J.

Defendant City of Detroit appeals from a ruling by the Michigan Employment Relations Commission (MERC) which affirmed the decision of an administrative law judge who found that defendant had violated § 10 of the public employment relations act (PERA), MCL 423.210; MSA 17.455(10), by bargaining to impasse regarding the exclusion of certain positions from the various classifications represented by the pláintiff union.

During negotiations for a new collective bargaining agreement, the city proposed to alter the recognition clause to delete the positions of Fire Chief, Assistant Fire. Chief and Fire Marshal from the bargaining unit. When negotiations failed to produce any new agreement the city submitted the above noted proposal, among others, to binding arbitration pursuant to 1969 PA 312, as amended, MCL 423.231 et seq.; MSA 17.455(31) et seq. This submission resulted in the parties’ agreement that the issue had. been bargained to impasse. Subsequently, the plaintiff union filed an unfair labor practice charge with MERC, and events progressed as detailed above.

Section 15 of PERA requires the representatives of the employer and employee to bargain collectively "with respect to wages, hours, and other terms and conditions of employment”. MCL 423.215; MSA 17.455(15). Subjects included within that phrase are mandatory subjects of bargaining. Detroit Police Officers Ass’n v Detroit; 391 Mich 44, 54; 214 NW2d 803 (1974).

Permissive subjects of collective bargaining are those which fall outside the scope of "wages, hours, and other terms and conditions of employment”, and may be negotiated only if both parties agree. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 679; 246 NW2d 831 (1976).

We may look for guidance to Federal decisions that have construed provisions of the National Labor Relations Act, which are analogous to provisions of PERA, Rockwell v Crestwood School District Board of Education, 393 Mich 616, 636; 227 NW2d 736 (1975). In so doing, it is evident that the redefinition of a bargaining unit would not satisfy any of the accepted tests for being considered a mandatory subject of collective bargaining. Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 492; 233 NW2d 49 (1975), lv den 395 Mich 756 (1975). The redefinition or constitution of. a bargaining unit is, therefore, a permissive subject of collective bargaining. Accordingly, the defendant city’s attempt "to restrict bargaining to only certain members of an appropriate (bargaining) unit * * * is an unfair labor practice”. Hess Oil & Chemical Corp v NLRB, 415 F2d 440, 444 (CA 5, 1969), cert den 397 US 916; 90 S Ct 920; 25 L Ed 2d 97 (1970). And, further in accord with the decision in Hess Oil, supra, p 445, we find that MERC was the proper entity to decide this issue in the first instance. See In the Matter of Metropolitan Council 23 AFSCME, AFL-CIO, 89 Mich App 564, 567-568; 280 NW2d 600 (1979), and Local No 214, Teamsters v Detroit, 91 Mich App 273, 276-277; 283 NW2d 722 (1979).

The conclusion reached in this opinion does not leave the defendant without recourse. As was noted by the administrative law judge below, if defendant believes that the above-mentioned positions should be deleted from the bargaining unit, it may present its reasons therefor to MERC under the authority of MCL 423.213; MSA 17.455(13). See Smith Steel Workers v A O Smith Corp, 420 F2d 1 (CA 7, 1969), and 48 Am Jur 2d, Labor and Labor Relations, § 826.

Plaintiffs petition for enforcement is hereby granted and the order of MERC dated February 7, 1979, shall be enforced.

Affirmed.