Amicus Brief

Detroit Fire Fighters v City of Detroit

Case Year: 2007
Case Forum: Michigan Supreme Court
Keywords: Act 312, Public Employment Relations Act (PERA), arbitration, contracts, firefighters
Amicus Counsel:

John A. Entenman | Melvin J. Muskovitz | F. Arthur Jones II | Dykema Gossett PLLC | 400 Renaissance Dr W # 37 | Detroit, MI 48243

CoAmicus Parties:

Michigan Association of Counties (MAC)


A public employer is only prohibited from implementing a personnel decision during the pendency of Act 312 arbitration where an applicable collective bargaining agreement clearly and expressly prohibits the planned action. Further, to the extent a public employer has a duty to bargain over the impact of a decision it has the authority to make, that duty does not require the employer to bargain to impasse or agreement. Should this Court decide that public employers must bargain to agreement over the impact of layoff decisions that the public employer has the contractual and/or inherent authority to make, then the employer can be stopped by a union from making critically-needed changes, whether due to economics or otherwise, for years. Even if a public employer is required to
bargain to impasse, but not agreement, prior to implementing such decisions, the result would be the same or worse. As a practical matter, either party to a negotiation can drag bargaining on an issue out almost indefinitely before an impasse is reached. Then, near the point of impasse, that
party can petition for Act 312 arbitration, which, under the Circuit Court’s and Court of Appeals’ reasoning in this case, would further delay the implementation of the decision. As this Court is fully aware, although there are strict and short time limits under Act 312 by which various stages of the process must be completed, almost invariably those time limits are waived by the parties. Indeed, given the usual complexity and breadth of the issues in Act 312 arbitration, it is often impossible to complete the process within the prescribed time constraints. The result can be, as in this case, that a governmental unit’s financial crises may not be addressed via badly needed personnel actions for years. This case is a prime example of how the process can stretch to absurd lengths. The contract that is subject to Act 312 arbitration in this case would have expired in 2004. The City of Detroit has expressed its need to make layoffs in the Fire Department now for approximately a year and a half. Due to the Circuit Court’s injunction and the slow pace of Act 312 arbitration, there is no known date on which the City will finally be permitted to implement its layoffs.


We hold that the circuit court erred when it issued the preliminary injunction preventing the implementation of the restructuring plan. The circuit court issued what amounted to a permanent injunction where the underlying merits of the alleged status quo violation would never be resolved, contrary to the requirements of MCR 3.310(A)(5). We further hold that, when a safety claim is alleged, an employer’s challenged action alters the status quo during the pendency of an Act 312 arbitration only if the action is so “inextricably intertwined with safety” that the action would alter a “condition of employment.”
We reverse the Court of Appeals judgment, vacate the preliminary injunction entered by the circuit court, and remand the case to the circuit court for further proceedings consistent with this opinion.

MSC requested LDF amicus brief? Yes

The Detroit Fire Fighters Association (“DFFA”) and the City are parties to a collective bargaining agreement (“CBA”) that, by its terms, became effective on July 1, 1998 and expired on June 30, 2001. Approximately 17 months after the expiration of that CBA, the DFFA initiated Act 312 arbitration proceedings. Act 312 prescribes time limits by which the arbitration proceedings must be concluded, but the parties waived these limits. The CBA will remain effective until the conclusion of the Act 312 arbitration. While the arbitration has proceeded, the City has faced a fiscal crisis, requiring significant budget reductions.
Approximately 60 firefighters were laid off. On September 1, 2005, Fire Commissioner Tyrone Scott announced the planned layoffs of an additional 65 firefighters. The combined layoffs
required a reorganization of the Fire Department, including the transfer of duties, demotions, decommissioning of companies, and elimination of battalions. Significantly, the DFFA’s complaint does not allege a violation of Public Employment
Relations Act (“PERA”); it simply alleges that the City
violated Section 13 by unilaterally changing the terms and conditions of firefighters’ employment, thus unlawfully “chang[ing] a mandatory subject of bargaining and … the status

Case Number: 2006-12
©2022 Michigan Municipal League LLC. All rights reserved