Appendix — NAACP, Detroit Branch v. Detroit Police Officers Ass'n
Supreme Court brief1991
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No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
N.A.A.C.P., DETROIT BRANCH; THE GUARDIANS, INC.
BRADY BRUENTON; CYNTHIA MARTIN; HILTON NAPOLEON;
SHARRON RANDOLPH; BETTY T. ROLLAND; GRANT BATTLE;
CYNTHIA CHEATOM; EVIN FosBBs; JOHN H. HAWKINS;
HELEN POELNITZ, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,
Petitioners,
vs.
DETROIT POLICE OFFICERS ASSOCIATION (DPOA);
DAVID WATROBA, PRESIDENT; CiTY OF DETROIT;
COLEMAN A. YOUNG, MAYOR; DETROIT POLICE DEPT.;
BOARD OF POLICE COMMISSIONERS; WILLIAM HART, CHIEF,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SiXTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
GARY BENJAMIN
Schrauger & Dunn, P.C.
THOMAS I. ATKINS
135 Eastern Parkway, #11-B-1
Brooklyn, N.Y. 11238
(718) 638-4153
Counsel of Record
JEANNE MIRER
BARNHART & MIRER
3310 Cadillac Tower
Detroit, MI 48226
(313) 961-6420
Attorneys for Petitioners
January 9, 1991
5 Third Street
Mt. Clemens, MI 48043
(313) 964-2770
JAMES W. MCGINNIS
MCGINNIS & RASHED
561 E. Jefferson
Detroit, MI 48226
(313) 962-2240
A-23
A-79
A-126
A-128
A-138
A-158
A-165
A-176
A-200
Date
11/17/81
1/25/82
11/28/83
12/1/83
2/24/84
7/25/84
10/21/85
6/8/87
6/12/87
1/13/88
6/15/88
10/11/88
4/9/90
9/27/90
i
INDEX TO APPENDIX
Item
District Court Opinion Granting Partial
Summary Judgment to Plaintiffs NAACP v.
DPOA, 525 F. Supp. 1215 (E.D. Mich. 1981)
District Court Order on Collateral Estoppel
NAACP v. DPOA, (Slip Opinion)
District Court Opinion Granting TRO to
Plaintiffs wile Recall a of Black
Officers NAACP v. DPOA, (Slip Opinion)
Stipulation, Order Amending 11/28/83 TRO
to Include Recall Rights of All Officers
NAACP v. DPOA, (Slip Opinion)
District Court Opinion Granting Partial
Summary Judgment to Plaintiffs on Issue of
Continuing Affirmative Remedial Duty
NAACP v. DPOA, (Slip Opinion)
District Court Liability, Remedy Opinion
NAACP v. DPOA, 591 F. Supp. 1194 (E.D.
Mich. 1984)
District Court Opinion Awarding Fees, Costs
NAACP v. DPOA, 620 F. Supp. 1173 (E.D.
Mich. 1985)
6th Circuit Opinion Reversing Award of Fees,
Costs NAACP v. DPOA, 819 F.2d 1142 (6th
Cir. 1987)
6th Circuit Opinion Reversing Liability,
Remedial Orders of District Court NAACP v.
DPOA, 821 F.2d 328 (6th Cir. 1987)
District Court Opinion peer ge City Motion
for oe of Judgment and Denying DPOA
Motion for Summary Judgment NAACP v.
DPOA, 676 F. Supp. 790 (E.D. Mich. 1988)
District Court Opinion Dismissing Case as
Moot NAACP v. DPOA, 685 F. Supp. 1004
(E.D. Mich. 1988)
District Court Remand Fee Opinion NAACP
v. DPOA, 696 F. Supp. 1145 (E.D. Mich.
1988)
6th Circ. Opinion Reversing Mootness,
Ordering Dismissal on Other Grounds
NAACP v. DPOA, 900 F.2d 903 (6th Cir.
1990), and Order Denying Rehearing
6th Circuit Opinion Reversing Fee Award
NAACP v. DPOA, 914 F.2d 1494 (6th Cir.
1990)
’
A-!
Opinion
NA.A.C.P., DETROIT BRANCH, et al.
V.
DETROIT POLICE OFFICERS ASSOCIATION,
(D.P.O.A.), et al.; CITY OF DETROIT: MAYOR COLEMAN
A. YOUNG; et al.
525 F. Supp. 1215 (E.D. Mich. 1981)
COUNSEL
Jeanne Mirer, 3550 Cadillac Tower, Detroit, MI 48226, On
Behalf of plaintiffs.
Duane Elston, 1311 East Jefferson Ave., Detroit, MI 48226,
On Behalf of plaintiffs.
Thomas Atkins, 1790 Broadway, New York, N.Y. 10019,
On Behalf of plaintiffs.
Walter S. Nussbaum, Ingrid M. Farquharson, Suite 307,
26600 Telegraph Road, Southfield, MI 48034, On Behalf of
defendants D.P.O.A. and Watroba.
Michael Lockman, 1840 State of Michigan, Plaza Building,
1200 Sixth Street, Detroit, MI 48226, On Behalf of defendants,
Governor William G. Milliken and MERC.
James Zeman, 1010 City-County Building, Detroit, MI
48226, On Behalf of defendant City of Detroit.
OPINION
The controversy in this case can be briefly summarized. In
October 1979 and September 1980, the City of Detroit laid off
approximately 1100 police officers pursuant to the terms of the
last hired/first fired seniority provision contained in Article 10,
¢ E of the 1977-1980 Collective Bargaining Agreement between
A-2
Opinion
r
the City and the Detroit Police Officers Association (“‘DPOA’’).
Of the 1100 officers laid off, approximately 800 were black.
On September 30, 1980, several individual laid-off black
police officers and two organizations, the Guardians, a voluntary
organization of black police officers, and the NAACP, whose
membership includes laid-off black officers, brought this action
challenging the layoffs under the 13th and 14th Amendments to
the United States Constitution, 42 U.S.C. 1981, 1983, 1985(3),
Title VI of the Civil Rights Act of 1964, and Michigan law.
Plaintiffs’ claim rests on the findings in Baker v. City of Detroit,
483 F. Supp. 930 (E.D. Mich. 1979)' in which Judge Keith
upheld the City of Detroit’s voluntary affirmative action plan as
necessary to offset the effects of past discrimination in the
Detroit Police Department. Plaintiffs argue that the finding of a
constitutional violation in Baker imposed an affirmative obliga-
tion on the City of Detroit to dismantle and eliminate all effects
of these discriminatory policies. They contend that the seniority-
based layoffs are constitutionally and statutorily impermissible
because they have a discriminatory impact on blacks and operate
to revive and reinstitute the effects of Detroit's past illegal hiring
practices. The individual plaintiffs also claim that their union,
defendant DPOA, breached its duty of fair representation with
regard to the layoffs.
The case is currently before the Court on two motions.
Defendants DPOA and David Watroba, President of the DPOA,
have filed a motion for summary judgment arguing that plaintiffs
have failed to state a legally sufficient claim, and that defendants
are entitled to judgment as a matter of law under all counts of
the complaint. In addition, defendant DPOA challenges the
standing of the two organizational plaintiffs, NAACP and the
Guardians. Finally, the DPOA requests that, if summary judg-
ment is granted in their favor, the Court bifurcate the case into
' Baker is presently on appeal but has not yet been decided by the United
States Court of Appeals for the Sixth Circuit.
A-3
Opinion
liability and remedy stages, and they be permitted to intervene at
the remedy stage.
Plaintiffs have moved for partial summary judgment. They
argue that the doctrine of collateral estoppel precludes relitiga-
tion of the issue of the City’s past intentional discrimination as
found in Baker v. City of Detroit, supra. Further, plaintiffs
contend that, in light of Baker, the City was under a continuing
duty to remedy the effects of prior unconstitutional hiring
policies.
I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A. Standing
The first issue raised by defendants DPOA and Watroba in
their motion for summary judgment is whether the two organiza-
tional plaintiffs—the NAACP and the Guardians—have stand-
ing to sue. The defendants contend that the Court’s certification
of a class of black police officers precludes the participation of
the associations as representatives of their members because the
claims asserted and the relief requested make the involvement of
the individual officers indispensable to a proper resolution of the
case.
There is no question that an association may obtain standing
to sue in different capacities. It has standing on its own behalf to
seek relief from injury to itself, and it also may have standing
solely as the representative of its members, even in the absence of
injury to itself. Warth v. Seldin, 422 U.S. 490 (1975); Hunt v.
Washington State Apple Advertising Commission, 432 U.S. 333
(1977).
In order to obtain standing as a representative of its mem-
bers, an association must meet certain prerequisites. In Warth,
the Suprerne Court held:
The association must allege that its members, or any one of
them, are suffering immediate or threatened injury as a result of
A-4
Opinion
the challenged action of the sort that would make out a justicia-
ble case had the members themselves brought suit.... So long
as this can be established, and so long as the nature of the claim
and of the relief sought does not make the individual participa-
tion of each injured party indispensable to proper resolution of
the cause, the association may be an appropriate representative
of its members... .” 422 U.S. at 511.
Defendants argue that the organizational plaintiffs’ effort to
acquire standing in their representative capacity must fail
because the relief sought includes reinstatement and back pay.
Since this relief would only benefit the individual class members,
defendants assert that the organizational plaintiffs have failed to
meet the requirements of Warth.
The Court does not agree. First, the defendants have mis-
takenly interpreted the Guardians’ posture as that of a represen-
tative of its members. The Guardians is a voluntary association
of biack police officers. It has alleged that it has suffered
diminished financial support and loss of membership as a result
of the challenged layoffs. These losses clearly affect its ability to
function as an effective organization within the police depart-
ment. In short, Guardians has alleged a distinct injury to itself.
These allegations of injury to itself, as an association, are suffi-
cient to establish standing. See Warth, supra. Thus, the Court
need not inquire into whether the association has met the
requirements for representational standing. Clearly the Guardi-
ans has established sufficient standing.
The second organizational plaintiff, NAACP, seeks standing
as a representative of its members. Thus, it may obtain standing
only if “neither the claim asserted, nor the relief requested,
requires the participation of individual members in the lawsuit.”
Hunt, supra, at 343. In determining whether an action requires
the participation of individual members, the Supreme Court has
been primarily concerned with the problems of individualized
proof. In Hunt, supra, the Court upheld the association's right to
sue on behalf of its members after finding that “neither the
A-5
Opinion
interstate commerce claim nor the request for declaratory and
injunctive relief requires individualized proof and both are thus
properly resolved in a group context.” 432 U.S. at 344.
The instant case is primarily one for injunctive relief which
will not require individualized proof. Plaintiffs’ prayer for relief
states, in pertinent part:
“2. That this Court enjoin the operation of the senior-
ity provisions of the Collective Bargaining Agreement
between the City and the DPOA to the extent that the
agreement would prevent the City from meeting its affirma-
tive obligation to correct its constitutional violations;
3. That this Court enjoin the DPOA from obstructing
the City in its remediation efforts;
4. That this Court order defendants City and Police
Department to reinstate all minority officers who were
illegally laid off as a result of the strict adherence to the
seniority system;
5. That the defendants pay the reinstated officers their
back pay with interest.”
The central issue is whether this Court has the power to
alter the effects of an allegedly racially neutral seniority system
and compel the layoff of employees in a manner that does not
jeopardize the racial balance achieved through a voluntary
affirmative action program.’ The issue of back pay, should it
arise, simply requires a mechanical, mathematical computation.
Such computations may be performed after liability is estab-
lished. Cf. Senter v. General Motors Corp., 532 F.2d 511 (6th
Cir. 1976).
Since the plaintiffs have requested predominately injunctive
relief, and since the basic liability issues can be appropriately
resolved in a group context, the participation of the individual
* It should be noted that the final order entered by Judge Keith requires the
defendant City of Detroit to continue its affirmative action program
within the Police Department.
A-6
Opinion
members of the NAACP is not indispensable to a proper resolu-
tion of this case. Thus, the NAACP has standing to assert the
claims of its members.
Therefore, for the reasons given above, the defendants’
motion for summary judgment as to the standing of the NAACP
and the Guardians is denied.
B. Plaintiffs’ Duty of Fair Representation Claim
Plaintiffs’ principal claim against defendant DPOA is that
the Union breached its duty of fair representation under State
law by discriminating against its black members. Plaintiffs
argue that the DPOA discriminated against its black members
by insisting on enforcing, and refusing to consider alternatives to
enforcing, the seniority-based layoff system, knowing that this
would perpetuate the effects of past hiring discrimination.’
Defendant DPOA has moved for summary judgment, arguing
that it cannot be liable because it did not act in an arbitrary
manner, and that the layoffs in the instant case took place
pursuant to a properly negotiated color-blind collective bargain-
ing agreement.
It is clear that the DPOA, as the exclusive bargaining agent
for the police, has a duty of fair representation under Michigan
law. See Lowe v. Hotel Employees’ Union, Local 705, 389 Mich.
123 (1973); Steele v. Louisville & Nashville R.R. Co., 323 US.
192 (1944). This case raises novel questions concerning that
duty.
The duty of fair representation is breached when a union’s
conduct towards a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386
U.S. 171 (1967). Thus the duty of fair representation insures
that the interests of individual members and specific groups
See discussion infra where the City of Detroit has admitted past hiring
discrimination against blacks in the Police Department.
A-7
Opinion
within the union are protected. See Steele v. Louisville and
Nashville R.R. Co., supra.
Plaintiffs assert that this duty requires the Union to affirma-
tively protect (or at least to attempt to protect) their minority
members from disproportionate layoffs through a “last hired-first
fired” seniority system, even if the system is considered bona fide
under Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e.
They claim that the DPOQA’s history and conduct with respect to
these layoffs amounts to discrimination along “irrelevant and
invidious” lines in violation of the duty of fair representation as
defined in Steele, supra. Plaintiffs contend that the DPOA’s
refusal to make concessions to avert layoffs, coupled with the
DPOA’s consistent opposition to affirmative action establishes a
prima facie case cf racial discrimination against blacks. See
Brown v. Neeb, 644 F.2d 551, 564 n. 25 (6th Cir. 1981).
Plaintiffs point to several exhibits which they believe evi-
dence the DPOA’s discriminatory intent in violation of the duty
of fair representation. They point, for example, to exhibit 2 of
plaintiffs’ complaint, which is a letter dated September 2, 1980,
from the Guardians to Defendant Watroba. In this letter, the
Guardians urged the DPOA to accept Mayor Young’s offer to
discuss other options in order to avoid the layoffs. Plaintiffs
assert that the DPOA never responded to this letter and in fact
had no intention of bargaining in good faith to avert the layoffs.
They suggest that the DPOA was motivated to accept the layoffs
in order to reduce black voting strength within the union.
Plaintiffs also contend that the DPOA’s behavior regarding
subsequent layoffs is evidence of the union’s intent to discrimi-
nate in violation of the duty of fair representation. Specifically,
in June 1981, when faced with proposed layoffs that were not as
disproportionately black as the 1979-1980 layoffs, the DPOA
agreed to a wage freeze in order to avert the layoffs, and
arranged for an advisory vote in the union on the acceptability of
this concession.
ee
A-8
Opinion
Defendant DPOA raises two basic arguments. It claims,
first, that its conduct in agree ng to and maintaining a bona fide
seniority system does not violate Title VII but, indeed, is man-
dated by Title VII. Thus DPOA says its conduct regarding
layoffs cannot violate the duty of fair representation. Second,
DPOA maintains that, if it accepted plaintiffs’ proposal, it would
be sacrificing contract rights of the majority of its members in
favor of a minority in the membership, thus violating its duty of
fair representation to the majority members.
Defendant maintains that plaintiffs have alleged no facts
which, if true, would show that defendants intentionally discrimi-
nated against its black members in violation of the duty of fair
representation. Defendant argues that the union may agree to
terms of a contract which affects individuals differently so long as
the union treats the members in a nondiscriminatory, nonarbi-
trary fashion. The DPOA insists that it has always acted in good
faith.
Although the defendant contends that there are no facts
indicating that it acted in an arbitrary or discriminatory manner,
the Court feels that plaintiffs have produced several exhibits
which raise questions of fact concerning the union’s behavior.
It appears to the Court that the issue in the instant case is
one of first impression, and that plaintiffs have raised sufficient
factual claims and issues to preclude the granting of summary
judgment at this time. The Court is not currently deciding
whether § 703(h) of Title VII of the 1964 Civil Rights Act, 42
U.S.C. § 2000e-2(h), which insulates bona fide seniority provi-
sions from attack under Title VII, has any impact on the union’s
duty of fair representation. Such a decision could not properly be
made until the development of a full factual record. Defendant's
motion for summary judgment on plaintiffs’ claim of a breach of
the duty of fair representation is therefore denied without
prejudice pending the development of a complete factual record.
A-9
Opinion
C. Plaintiffs’ claim under the 13th and 14th Amendments to the
U.S. Constitution, 42 U.S.C. §§ 1981, 1983, 1985/3) and Title
VI of the Civil Rights Act of 1964.
Defendants have moved for summary judgment on the
ground that plaintiffs have failed to state legally sufficient claims
under the 13th and 14th Amendments, 42 U.S.C. 1981, 1983,
1985(3) and Title VI of the Civil Rights Act of 1964. It is clear
that a legal summary judgment is not proper at this time.
Judgment on the issues raised in this motion must be deferred
until a more complete factual record is developed.
II. PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
Plaintiffs’ motion for partial summary judgment requests
that the Court grant the following declaratory relief:
“That in the light of Baker v. City of Detroit, 483 F.
Supp., 930 (E.D. Mich. 1979), the City of Detroit has
violated the Constitutional rights of blacks and therefore has
an affirmative obligation to completely dismantle all aspects
of the Detroit Police Department’s intentionally discrimina-
tory hiring policies, and eliminate all the effects of those
policies.” (Plaintiffs’ brief, p. 1).
Plaintiffs maintain that the doctrines of collateral estoppel
and stare decisis preclude relitigation of the issue of the City’s
past intentional discrimination as found in Baker, supra.
Defendant City of Detroit does not oppose plaintiffs’ motion.
In fact, the City openly admits the history of past discrimination
found in Baker. Defendants DPOA and Watroba oppose plain-
tiffs’ motion on several grounds. They argue they cannot be
collaterally estopped by Baker because they were not parties to
the litigation in Baker. They also claim that Baker cannot
operate as collateral estoppei because the case is currently on
appeal, and they contend that the findings in Baker were findings
of “mediate” fact which cannot be the subject of collateral
estoppel. Finally, defendants maintain that Baker had several
|
A-10
Opinion
alternative holdings and therefore cannot be given estoppel
effect.
The threshold issue is whether collateral estoppel can be
used at all since defendants DPOA and Watrcoba, as well as
defendants Milliken and the Michigan Employment Relations
Commission were not parties to the Baker litigation. The
defendants argue that due process prohibits the use of collateral
estoppel against those who were not parties to the prior action,
and rely upon Blonder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 313 (1971), where the Court
stated:
“Some litigants—those who never appeared in a prior
action—may not be collaterally estopped without litigating
the issue. They have never had a chance to present their
evidence and arguments on the claim. Due process prohibits
estopping them despite one or more existing adjudications of
the identical issue which stands squarely against their posi-
tion.” 402 U.S. at 329.
On the other hand, plaintiffs have cited several cases in
support of the proposition that collateral estoppel can be applied
without abridging the due process rights of the DPOA and other
defendants who were not parties in Baker. For example, in
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), rev'd on other
grounds, Milliken v. Bradley, 418 U.S. 717 (1974), the District
Court found that the City of Detroit had a de jure segregated
public school system and ordered cross-district bussing involving
53 other school districts. On review, the Sixth Circuit ruled that
the nonparty school districts had a right to be heard. However,
the Court stated: “‘[T]he District Court will not be required to
receive any additional evidence as to the matters contained in its
Ruling on the Issue of Segregation...” 484 F.2d at 252.‘
‘Defendant DPOA argues that Bradley is distinguishable because the
Court noted that the school districts were instrumentalities of the State,
which was a party in the original case. However, the Court's statement
that the local districts were instrumentalities of the state referred to the
districts’ ability to be sued as parties defendant.
TT
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Opinion
Accord, United States v. Board of School Commissioners, 503
F.2d 68 (7th Cir. 1974). Thus, in effect, the new parties were
estopped from relitigating the issue of de jure segregation with
regard to the Detroit School System. The new defendants could
only present evidence on the issue of their own culpability.
DPOA’s position with respect to the relief requested by
plaintiffs is analogous to the situation found in the above cited
school desegregation cases. The Baker court found that the City
of Detroit was guilty of intentional discrimination in violation of
the 14th Amendment through at least 1967-68, and of discrimi-
nation in violation of Title VII until 1974. Plaintiffs’ motion asks
this Court to accept these findings for the purpose of the present
action. The City of Detroit concedes that it discriminated as
found in Baker. The issue raised in the present case is whether,
and to what extent, the City had a duty to remedy the effects of
th «2 discriminatory processes.
A finding that Baker acts as collateral estoppel is relevant
only to the City’s liability. It says nothing about whether DPOA
is guilty of violating plaintiff's rights. To hold that Baker estops
this Court from relitigating the question of the City’s past dis-
Criminatory practices does not deprive the DPOA of its due
process rights. Plaintiffs’ complaint against the DPOA argues
that the DPOA had a duty to remedy the past discrimination
practiced by the City. In order to establish the DPOA’s liability,
plaintiffs will have to produce evidence regarding the DPOA’s
knowledge, behavior, and participation in the challenged layoffs.
Thus, use of collateral estoppel is appropriate here, assuming the
requirements for the application of the doctrine are met, because
the parties will only be estopped from relitigating the finding of
past discrimination by the City of Detroit, —a fact which has
been admitted.
Under the doctrine of collateral estoppel, “the judgment in
the prior suit precludes relitigation of issues actually litigated
and necessary to the outcome of the first action.” Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979). The Baker
A-12
. Opinion
decision must be examined to determine whether it actually and
necessarily held, as plaintiffs claim, that the City was guilty of
race discrimination in violation of Title VII and the 14th
Amendment.
In Baker, several white police officers brought suit challeng-
ing the City’s affirmative action promotion plan under Titles VI
& VII of the Civil Rights Act of 1964, and 42 U.S.C. §§ 1981
and 1983. The Court held that the City was in violation of Title
VII from 1972 to 1974 because it used discriminatory tests in
granting promotions. In order to determine whether the race-
conscious affirmative action plan was constitutional, the Court
subjected the plan to strict scrutiny under the 14th Amendment
and held that the City was guilty of intentional discrimination
from 1967 to 1968 in its use of hiring tests and the use of
subjective criteria in hiring. The Court also found that statistical
evidence proved the existence of race discrimination. It upheld
the race-conscious promotion plan on the basis that the City had
a duty to remedy the effects of its past discrimination. Thus, the
finding of past discrimination in hiring, which is relevant to the
present case, was an actual and necessary holding in Baker.
Defendant DPOA argues Baker cannot operate as collateral
estoppel because the case had several alternative holdings. How-
ever, the alternative holdings in Baker are independently suffi-
cient to support the judgment. Thus, collateral estoppel may be
used in a subsequent action. See Winters v. Lavine, 574 F.2d 46
(2d Cir. 1978).
Defendant DPOA also contends that Baker cannot estop
this Court because it is on appeal and therefore is not a final
judgment. However, a judgment is final for purposes of res
judicata and collateral estoppel if it makes a “currently effective
disposition of the issues raised.” Overseas Motors, Inc. v. Import
Motors Limited, Inc., 375 F.Supp. 499, 517 (E.D. Mich. 1974).
Thus, the pending appeal in Baker has no effect on the applica-
tion of collateral estoppel in the instant case.
a
A-13
_ Opinion
Finally, DPOA argues that the relevant findings in Baker
were findings of “mediate” fact which cannot operate as collat-
eral estoppel, citing Overseas Motors, Inc. v. Import Motors
Limited, Inc., 375 F.Supp. 499 (E.D. Mich. 1974) in support of
its argument. Defendants’ reliance on this case is misplaced.
The Court in Overseas Motors expressly noted that the use of the
“mediate fact—ultimate fact” distinction had “‘little support in
policy or logic.” Jd. at 523. The reason behind such a restriction
on collateral estoppel is to prevent the use of prior determinations
to support unforeseeable inferences in the subsequent litigation.
Clearly, the problem of unforeseeable inferences discussed in
Oversees Motors has no bearing on the instant case.
For the reasons given above, the doctrine of collateral estop-
pel precludes relitigation of the issue of the City’s past inten-
tional discrimination as found in Baker. However, the Court, at
this stage of the proceedings, will not make the ultimate finding
requested by plaintiffs as to whether the City has “tan affirmative
obligation to completely ‘dismantle all aspects of the Detroit
Police Department’s intentionally discriminatory hiring policies,
and eliminate all the effects of these policies.” The finding of
collateral estoppel on the issue of past racial discrimination by
the City does not require the Court to go that far. The determi-
nation of whether such a finding will be made on that issue must
await the development of a full factual record. Thus, plaintiffs’
motion for partial summary judgment is granted in part. Orders
in conformity with this opinion may be presented.
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Opinion
Civil Action No. 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
N.A.A.C.P., DETROIT )
BRANCH, ET AL..
Plaintiffs )
v. ‘ JUDGE
DETROIT POLICE ) HORACE W. GILMORE
OFFICERS ASSOCIATION )
(DPOA), ET AL., )
Defendants ‘
ORDER GRANTING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
At a session of said Court held in the Federal Building in the
City of Detroit, Michigan on the 25th day of January, 1982.
PRESENT: ...........-. Horace W.GILMORE
U.S. District Judge
Plaintiffs’ Motion for Partial Summary Judgment having
on for hearing, and this Court having considered this
Motion, Briefs, and the arguments presented, and
being fully advised in the premises;
IT IS HEREBY ORDERED that consistent with this
Court’s Opinion dated November 17, 1981, the Plaintiffs’
Motion for Partial Summary Judgment is granted to the extent
the doctrine of collateral estoppel precludes a relitigation of the
issue of the City of Detroit’s past intentional discrimination as
found in Baker v. City of Detroit, 483 F Supp 930 (ED Mich
1979).
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Opinion
HORACE W. GILMORE
e264 8764 © © 6 «8 88 8
‘eo A Se ae eS ee ee ee ee ee ee ee ee
U.S. District Judge
Approved as to form:
JEANNE MIRER
Jeanne Mirer (P 25853)
DAUNE ELSTON
ee ee ee ae re ee ee a ee ee ee er ee
Daune Elston (P 28682)
THOMAS ATKINS
ene ee es es se Fee Fe 6 8 6 ®
Thomas Atkins
Attorneys for Plaintiffs.
WALTER NUSSBALM
ae ene fae es ce ee Te ee ee ee ee
Walter Nussbaum (P 18367)
Attorney for DPOA and
David Watroba
Jim ZEMAN
ak 6h SS 6 Ge 6S se ee Oe eee Ce eS
Jim Zeman
Attorney for City Defendants
MICHAEL LOCKMAN
Michael Lockman
Attorney for State Defendants.
A-16
Opinion
No. 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
N.A.A.C.P., ET AL., )
Plaintiffs )
HON. HORACE GILMORE
v
)
D.P.O.A., ET AL., )
Defendants )
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTIONS FOR TEMPORARY AND
PRELIMINARY RELIEF
At a session of said Court held in the U.S. Courthouse, City
of Detroit, County of Wayne, Michigan on this 28th day of
November, 1983
PRESENT: HON. HORACE W. GILMORE
e688 © 644.0 8 OWE DADS A AS SO C.2 2 TOE Oa ea oe a eek ee ee 7 8
U.S. District Court Judge
This matter having come on for hearing on Plaintiffs’
Motions for Temporary Restraining Orders Regarding Lay offs
and Regarding Recall Rights, and this Court having considered
the briefs and arguments of counsel,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for
Temporary Restraining Order Regarding Lay offs is denied for
the reasons stated by the Court at the hearing on September 7,
1983; and
IT IS FURTHER ORDERED that Plaintiffs’ Motion for
Temporary Restraining Order Concerning Recall Rights is
granted for the reasons stated by the Court at the hearing on
A-17
Opinion
September 7, 1983, and that pending the outcome of this litiga-
tion the Defendant City is enjoined from allowing the recall
rights of any class member to lapse.
HORACE W. GIMORE
SCS COERASGSESCBASAASBSERSEATARBRSESESAEAST ABR eRe agaen4aeeteeaee @
HONORABLE HORACE GILMORE
U.S. District Court Judge
Dated: November 28, 1983
Approved as to Form:
FRANK JACKSON
SC SER BDESECHR EBSD TEAC EC OR COB eB Ra
Frank Jackson
City of Detroit
Law Department
1010 City County Bldg.
Detroit, Michigan 48226
WALTER NUSSBAUM
Walter Nussbaum
333 West Fort Street
Suite 2000
Detroit, Michigan 48226
JEANNE MIRER
Jeanne Mirer
2900 Cadillac Tower
Detroit, Michigan 48226
A-18
Opinion
No. 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
N.A.A.C.P., ET AL., )
Plaintiffs )
V HON. HORACE GILMORE
)
D.P.O.A., ET AL., )
Defendants )
STIPULATION AND ORDER AMENDING THE
NOVEMBER 28, 1983 ORDER
It is hereby stipulated between the parties that the Order
Granting in Part and Denying in Part Plaintiffs’ Motions for
Temporary and Preliminary Relief approved as to form by all
parties and entered by this Court on November 28, 1983 was
incorrect inasmuch as it limited the injunction against the Defen-
dant City with regard to the lapsing of recall rights to only class
members. The Court had enjoined the Defendant City on Sep-
tember 7, 1983 from allowing the recall rights of any laid off
officer to lapse.
It is therefore stipulated by the parties that an order reflect-
ing this change should be entered.
JEANNE MIRER i... FRANK JACKSON
Jeanne Mirer _ Frank Jackson
Attorney for Plaintiffs Attorney for Defendant City of
Detroit
WALTER NUSSBAUM
Walter Nussbaum
Attorney for Defendant DPOA
A-19
Opinion
No. 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
N.A.A.C.P., ET AL. '
Plaintiffs )
’ HON. HORACE GILMORE
)
D.P.O.A., ET AL., )
Defendants )
AMENDED ORDER GRANTING IN PART AND DENYING
IN PART PLAINTIFFS’ MOTIONS FOR TEMPORARY
AND PRELIMINARY RELIEF
At a session of said Court held in the U.S. Courthouse, City
of Detroit, County of Wayne, Michigan on this Ist day of
December, 1983
PRESENT: HON. HORACE W’. GILMORE
Se eeu esc oe eee ea eee aeaetesraeseecesteega eae wv enaeae@e et 0 ee € @
U.S. District Court Judge
This matter having come on for hearing on Plaintiffs’
Motions for Temporary Restraining Orders Regarding Lay offs
and Regarding Recall Rights, and this Court having considered
the briefs and arguments of counsel,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for
Temporary Restraining Order Regarding Lay offs is denied for
the reasons stated by the Court at the hearing on September 7,
1983; and
IT IS FURTHER ORDERED that Plaintiffs’ Motion for
Temporary Restraining Order Concerning Recall Rights is
granted for the reasons stated by the Court at the hearing on
A-20
Opinion
September 7, 1983, and that pending the outcome of this litiga-
tion the Defendant City is enjoined from allowing the recall
rights of any laid off police officers to lapse.
Horace W. GILMORE
SH CE OH AO O2Ee SC ASCE Cease ere egese eee edge e 680 @
HONORABLE HORACE GILMORE
U.S. District Court Judge
Dated: December 1, 1983
!
A-21
Opinion
Case No. 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
N.A.A.C.P., ET AL., )
Plaintiffs )
HON. HORACE GILMORE
v.
D.P.O.A., ET AL., )
Defendants )
~~ ee
ORDER GRANTING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
At a session of said Court, held in the United States District
Court for the Eastern District of Michigan, Southern Division,
U.S. Courthouse, Detroit, MI on
PRESENT: HONORABLE HORACE GILMORE
District Court Judge
This matter having come on for argument on Plaintiffs’
Motion for Partial Summary Judgment, and this Court having
considered the Motion, briefs, and arguments of counsel,
IT IS HEREBY ORDERED that Plaintiffs’ Motion is
granted and the Court makes the following declarations:
1. That based upon the findings of intentional discrimina-
tion in Baker the City had a constitutionally-imposed continuing
affirmation obligation not only to stop the discrimination, but to
remedy all the affects of that discrimination.
2. That the City had not yet remedied the effects of this
prior discrimination when in 1979 and 1980 it reduced black
representation of the police force.
_ eee
———————
A-22
Opinion
3. That by these layoffs, which the City knew full well
would reduce the black representation in the police force, the
City breached its affirmative obligation to the Plaintiffs, in viola-
tion of their rights under the Fourteenth Amendment.
Horace Gilmore
U.S. District Judge
A-23
Opinion
N.A.A.C.P., Detroit Branch; The Guardians, Inc.; Brady
Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph;
Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs;
John Hawkins; Helen Poelinitz; on behalf of themselves and all
others similarly situated, Plaintiffs,
>
DETROIT POLICE OFFICERS ASSOCIATION
(DPOA); David Watroba, President of the DPOA; City of
Detroit, a Michigan Municipal Corporation; Mayor Coleman A.
Young; Detroit Police Department; Board of Police Commission-
ers; Chief William Hart; Governor William Milliken; and The
Michigan Employment Relations Commission, Defendants.
Civ. A. No. 80-73693.
United States District Court,
E.D. Michigan, S.D.
July 25, 1984.
Black police officers of city of Detroit brought action against
city, its mayor, its police department, police commissioner, police
chief, and police officers association alleging city had violated
affirmative duties imposed by prior findings of constitutional
violations and that union had breached its duty of fair represen-
tation. The District Court, Gilmore, J., held that: (1) city
breached its affirmative and constitutionally mandated duty to
remedy past potential racial discrimination when it began its
massive layoffs of black officers; (2) breach by city was knowing
and intentional; and (3) union breached its duty of fair
representation.
Order accordingly.
1. Civil Rights—9.10
Constitutional obligation of city to eliminate continuing
effects of past racial discrimination continued to exist at time of
massive layoffs of black police officers, where percentage of
A-24
Opinion
blacks in ranks of police officers was 28.3%, in all ranks was
27.9%, and relevant labor market in city was over 65% black.
2. Civil Rights—9.10
City’s breach of its affirmative constitutionaily mandated
duty to remedy past intentional racial discrimination in police
department was willful, where city knew that it was under legal
mandate to continue its affirmative obligation to black officers
and knew that proposed massive layoff would have drastic effect
upon its obligation.
3. Civil Rights— 13.8(3)
Good faith is not a defense by municipality to a constitu-
tional violation.
4. Civil Rights— 13.10
Neither bona fide seniority clauses nor contractual obliga-
tions are a defense to Fourteenth Amendment violation in
employment situation. U.S.C.A. Const. Amend. 14.
5. Civil Rights— 13.16
State law cannot stand in way of full and complete remedies
for constitutional violations.
6. Contracts—114
Parties cannot by contract limit their liability for preexisting
constitutional violations.
7. Civil Rights—9.10
Where past intentional discrimination by city in hiring of
black police officers had been found, city was liable every time it
knowingly and foreseeably breached its affirmative obligations to
remedy discrimination.
A-25
Opinion
8. Civil Rights—9.10
Labor Relations—219
City does not fulfill its obligation under Fourteenth Amend-
ment, nor does union fulfill its obligations to fairly represent its
members, by simply giving difficult problem of redressing racial
injustice in society to federal courts.
9. Civil Rights—9.10
In addition to usual losses sustained with loss of employ-
ment, class of black police officers suffered injury of betrayal as
direct result of city’s past racial discrimination and its failure at
time of massive layoffs of black police officers to continue to
remedy discrimination, where black police officers’ standing in
community was put in jeopardy by their joining police force, and
officers had to face inference that city was playing games with
them and was not serious about its efforts to remedy past
discrimination.
10. Civil Rights—9.10
Layoffs of approximately 1,100 police officers below rank of
sergeant, of which approximately 75% were black, violated not
only black officers’ constitutional rights, but constitutional rights
of black citizens of city.
Race-conscious remedies are permitted to redress constitu-
tional violations.
12. Civil Rights—13.16
Classwide relief to remedy past constitutional violations is
permissible without individual members of class having to prove
that they were actual victims of past discrimination.
A-26
Opinion
13. Civil Rights— 13.16
Race-conscious remedial relief must be both necessary and
tailored to cure constitutional violations.
14. Civil Rights— 13.16
Appropriate remedy for discriminatory layoff of black police
officers by city was reinstatement of all black officers who
remained on layoff status and who wished to return, with call
back subject to normal procedures of police department pertain-
ing to returning laid-off police officers, with all returned officers
to be awarded seniority he or she would have had, if there had
been no layoffs.
15. Civil Rights—13.2(1)
In addition to requiring call back of all black police officers
laid off by city in massive reduction of police force, court also
permanently enjoined city from laying off, suspending, or dis-
charging, except for disciplinary reasons, any black or white
police officer without prior approval of court.
16. Labor Relations—219
As exclusive bargaining representative for its members,
police union had duty of fair representation under Michigan law.
17. Courts—97(1)
Under Michigan law, court must look to federal law for
guidance in deciding whether union breached its duty of fair
representation.
18. Labor Relations—219
Duty of fair representation by union is judicially created
remedy.
A-27
Opinion
19. Labor Relations—218
By allowing unions to be exclusive representatives of their
members, and thus subsuming rights of minorities in collective
bargaining, unions have not been granted licenses to practice
racial discrimination in violation of either Fourteenth Amend-
ment or equal protection clause of Michigan Constitution.
U.S.C.A. Const.Amend. 14; M.C.L.A. Const.Art. 1, § 2.
20. Labor Relations—219
Exclusivity principle of National Labor Relations Act and
Michigan labor relations statute is constitutional only if there is
duty of fair representation, and that means representation of all
members of union; this duty of fair representation is fundamental
limitation upon union activity. M.C.L.A. § 423.211; National
Labor Relations Act, § 1 et seq., as amended, 29 U.S.C.A. § 151
et seq.
21. Labor Relations—219
Union’s obligation under duty of fair representation is anal-
ogous to that of fiduciary to principal.
22. Labor Relations—218
Union has higher standard to its members than standard
owed by employer to employee.
23. Labor Relations—219
Labor union has no per se obligation to make concessions or
give up demands won at bargaining table and in court in order to
fairly represent minority members.
24. Labor Relations—219
Police officers union was guilty of breach of its duty of fair
representation through its failure to adequately represent inter-
ests of black members in layoffs from department, where history
of racial hostility and indifference to rights and needs of black
A-28
Opinion
officers existed, blacks were totally unrepresented in leadership
levels of union, one-quarter of union membership, one-half of
black membership, and loss of approximately $500,000 a year in
dues resulted from layoffs, union failed to make any serious
efforts to assist black officers, and union had in past acted to
avert layoffs of white officers.
25. Labor Relations—769
Where union had breached its duty of fair representation in
regard to minority members, and no union governing committee
had any black or minority members, appropriate relief consisted
of requiring that within 12 months all committees of union,
especially grievance and finance committees, board of directors
and executive boards, reasonably reflect racial composition of
union.
Thomas I. Atkins, Brooklyn, N.Y., Barnhart & Mirer by
Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit,
Mich., for plaintiffs.
Walter S. Nussbaum, Mara Kalnins-Ghafari, Detroit,
Mich., for defendants Detroit Police Officers Association, David
Watroba, President of DPOA.
Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich.,
Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst.
Corp. Counsel, Detroit, Mich., for defendants City of Detroit,
Mayor Coleman A. Young, Detroit Police Department Board of
Police Commissioners, Chief Wiliiam Hart.
OPINION
GILMORE. Judge.
Can the City of Detroit, knowing full well that by laying off
a large number of black police officers it breached its affirmative
obligations in violation of the Fourteenth Amendment, fail to
return these officers to work? This is one issue presented in this
case, and the answer is clearly no.
n———m—mm—————v,
A-29
Opinion
Did the Detroit Police Officers Association fail to take
reasonable efforts to protect these black members in connection
with the layoffs and thus breach its duty of fair representation to
them? This is the second major issue presented here, and the
answer is Clearly yes.
The action was brought by the Detroit Branch of the
NAACP, The Guardians, Inc., and ten named individual black
police officers against the City of Detroit, its Mayor, its Police
Department, its Police Commissioners, its Police Chief, the
Detroit Police Officers Association (DPOA), and David Watroba,
President of the DPOA. Early in the proceedings, the Court
certified a class of all black police officers laid off in 1979 and
1980.'
Plaintiffs contend that the City violated affirmative duties
imposed by prior findings of constitutional violations in Baker v.
Detroit, 483 F.Supp. 930 (E.D.Mich.1979), affd sub nom
Bratton v. Detroit, 704 F.2d 878 (6th Cir.), modified 712 F.2d
222 (6th Cir.1983), cert. denied — U.S. —, 104 S.Ct. 703, 79
L.Ed.2d 168 (1984). Plaintiffs also contend the City defendant
violated 42 U.S.C. §§ 1981, 1983, and 1985(3), and that their
Thirteenth Amendment rights were denied by the City.
Plaintiffs further claim the DPOA has breached its duty of
fair representation under Michigan law, and has violated 42
U.S.C. §§ 1981, 1983 and 1985(3), and the Thirteenth
Amendment.
Full trial of the matter began on May 23, 1984, and contin-
ued through 21 days and 2,612 pages of transcript.
‘The Governor of Michigan and the Michigan Employment Relations
Commission were original defendants, but were dismissed on motion early
in the case.
me |
A-30
Opinion
At issue is the layoff of approximately 1,100 Detroit police
officers below the rank of sergeant, approximately 75 percent of
whom were black. As a result of a budgetary crisis, the City, in
1979, implemented large-scale layoffs of City employees, includ-
ing police officers. On October 13, 1979, the City laid off 400
police officers, of whom 71 percent were black, and in 1980 an
additional 690 police officers were laid off, 75 percent of whom
were black. All officers were laid off pursuant to Article 10(e) of
the collective bargaining agreement between the City and the
DPOA that required seniority be strictly applied in the event of
layoffs, with the result that those last hired were first to be laid
off.
In Baker, supra, Judge Keith found that the City of Detroit
had engaged in intentional racial discrimination in its police
department, at least until 1968. Baker found, and testimony at
trial also revealed, that the City of Detroit did not seriously begin
its efforts to eliminate the effects of its past racial discrimination
until the 1970’s. On July 31, 1974 the City adopted an affirma-
tive action program for its police department, involving hiring
and promotions in the Detroit Police Department. This affirma-
tive action program has been upheld by the Sixth Circuit in
Bratton, supra, and DPOA v. Young, 608 F.2d 671 (6th
Cir.1979), cert. denied 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d
951 (1981).
The affirmative action program resulted in an accelerated
hiring rate for blacks in the Detroit Police Department. In 1975,
out of 393 appointments to the Detroit Police Department, 250,
or 63 percent, were black. In 1976 there were no appointments.
In 1977, out of 1,245 appointments, 949, or 76 percent, were
black, and in 1978, the last year in which hiring has taken place
in the Detroit Police Department, out of 227 appointments, 179,
or 78 percent was black.
i
On December 31, 1978 blacks held 1,719 of 4,393 positions
in the rank of police officer, or 39.1 percent, and 1,946 of the
total of 5,630 positions in the department, or a total of 34.6
A-31
Opinion
percent. This figure represents the highest percentage of blacks
ever in the Detroit Police Department.?’ On February 23, 1984,
when this Court issued its partial summary judgment ruling, the
Detroit Police Department had a total sworn personnel of 3,762,
of which 1,007, or 26 percent, were black. It had a total of 2,668
police officers, of whom 756, or 28 percent, were black. Thus, it
is clear that the net effect of the layoffs in 1979 and 1980 was to
wipe out most of the affirmative action recruiting that had
brought large numbers of blacks onto the police force in 1977
and 1978.°
At trial, Dr. Mark Bendick, Jr.,* an economist, updated the
Statistical figures established by Allen Fechter in Baker.’ These
Statistics, which show the disparity between the number of blacks
in the Detroit Police Department and the numbers of blacks in
the relevant labor market, can only be explained, according to
> At least since 1966, when the DPOA was made exclusive bargaining
representative, all sworn Detroit officers below the rank of sergeant have
been members of the DPOA. Thus, statistics for officers below the rank of
sergeant kept by the City of Detroit should also be applicable to the
DPOA. :
‘On August 12, 1981, the Detroit Police Department recalled 100 officers,
and during the period from April 12, 1982 through June 8, 1982 recalled
an additional! 171 officers. However, further layoffs took place on Septem-
ber 10, 1983, when 224 police officers were laid off. This effectively wiped
out most of the recalls of 1981 and 1982.
On June 18, 1984, the Detroit Police Department recalled 135 police
officers, of whom 111, or 82.2 percent, were black. Further recalls are
anticipated by the Detroit Police Department once the present contract,
which is in arbitration under Act 312, is determined.
* The Court will adopt Dr. Bendick’s method of calculating the shortfall of
blacks in the police officer ranks, and in all sworn positions at designated
points in time, because his analysis is identical to the method used by
Mr. Fechter in Baker, supra. It will disregard the testimony of Dr. Joe
Darden, who was hired as an expert for the plaintiff, because his method
of calculation was not identical to the method used by Fechter.
‘The figures established by Mr. Fechter can be found at the chart in
Bratton, supra, p. 894.
i a
A-32
Opinion
both Fechter and Bendick, by racial discrimination in hiring.
Bendick, in updating Fechter’s work, testified at trial that, if the
Detroit Police Department had hired police officers in proportion
to the black representation in the relevant labor pool from 1945
to 1978, the black representation at the police officer rank as of
December 31, 1978 would have been approximately 47.7 percent,
rather than 39.1 percent. His analysis also revealed that, as of
April 30, 1980, the black representation at the police officer level
would have been approximately 43.8 percent rather than the 28.3
percent. Dr. Bendick made a projection for 1988, and indicated
that, if the Detroit Police Department had hired blacks in pro-
portion to their labor market representation in all of the years
from 1945 to 1978, the presence of black officers in 1988 would
be 50.5 percent. As of 1984, blacks comprised 65 percent of the
relevant labor market, and the City of Detroit is 67 percent
black.
This description of the effects of racial discrimination on the
Detroit Police Department, and the efforts of the City of Detroit
to correct its past racial discrimination, cannot be traced without
mentioning the police officers’ unions. It is a matter of public
record that both the Lieutenants and Sergeants Association in
Baker, supra, and the DPOA in DPOA v. Young, supra, brought
court challenges to the City’s affirmative action plan. The public
record, as well as testimony at this trial, indicates that, at least
where affirmative action for blacks was concerned, the police
unions, including the DPOA, were bitter opponents, of the City.
Testimony at trial indicated that the DPOA opposed efforts by
the City to hire increased numbers of blacks and opposed the
City’s residency requirement—that all personnel in the Detroit
Police Department have their residency in the City of Detroit, a
requirement which, although not directly racial, has clear racial
implications given the racial composition of the City of Detroit.
The first collective bargaining agreement between the
DPOA and the City of Detroit was entered into in 1967. A
seniority clause was bargained in at that time, and this clause has
remained in effect in all agrecments since. Several contracts
A-33
Opinion
have been entered into since then, but the parties were unable to
agree to a contract in 1977, and in 1978 the impasse was referred
to arbitration under Public Act 312 of 1969, M.C.L.A § 423.231
et seq. On December 30, 1978, the Act 312 Arbitration Board
made its award on economic proposals. This award was chal-
lenged by the City in the courts, and was finally affirmed by the
Michigan Supreme Court on June 6, 1980. City of Detroit v.
DPOA, 408 Mich. 410, 294 N.W.2d 68 (1980).
The 1978 Act 312 award plays an important role in the
underlying factual scenario of this case. The City of Detroit
contended that this award was excessive and was the direct cause
of the layoffs. The number of officers laid off was also linked
monetarily to the amount of the increased award. The testimony
at trial also revealed that the City took a gamble with its court
challenges to the award. It did not set aside any monies in its
budgets to pay for the award. Thus, when the Michigan
Supreme Court, affirmed the award, the City owed a very size-
able lump sum. ;
From the DPOA’s point of view, its attitude during this
period was understandably colored by the fact that as of June
1980, when the Michigan Supreme Court rendered its decision, it
had still not received the monies due on a 1977 contract, based on
a December 1978 award. By 1980, DPOA members were due a
considerable sum of retroactive backpay and retroactive COLA.
*Act 312 provides that upon certification that the parties are unable to
agree upon all issues in a contract in the public sector, those issues upon
which they cannot agree will be submitted to arbitration by an impartial
arbitration board, which renders a binding decision. The obvious purpose
of this legislation is to avoid strikes in the public sector. The most
controversial porticn of the Act 312 procedure is its imposition of a
mandatory “last-best offer” decision upon the arbitrators. M.C.L.A.
§ 423.238. The arbitrators have no discretion in this regard and must
accept one of the parties “last-best offers.” The parties present contract,
which expired in 1983, is presently in Act 312 arbitration. The threat of
this impending award colors the parties’ position to this very day.
A-34
Opinion
II
On February 22, 1984, this Court held that the City of
Detroit violated the equal protection clause of the Fourteenth
Amendment when it laid off the plaintiff class of black pelice
officers. The court entered a partial summary judgment for
plaintiffs, holding:
1. That, based on the findings of intentional discrimination
in Baker v. City of Detroit, 483 F.Supp. 980 (E.D.Mich.1979),
aff'd sub nom Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.),
modified at 712 F.2d 222 (6th Cir.1983), cert. denied—U.S.—,
104 S.Ct. 703, 79 L.Ed.2d 168 (1984), the City had a constitu-
tionally imposed continuing affirmative obligation not only to
stop the discrimination but to remedy all of the effects of the
discrimination.
___2. That the City had not yet remedied the effects of this
prior discrimination when, in 1979 and 1980, it reduced black
representation on the police force.
3. That by these layoffs, which the City knew full well
would reduce black representation on the police force, the City
breached its affirmative obligation to the plaintiffs in violation of
their rights under the Fourteenth Amendment.
This ruling was predicated upon the findings of intentional
past discrimination against blacks in the Detroit Police Depart-
ment made by Judge Keith in Baker, supra. In NAACP v.
Detroit Police Officers Association, 525 F.Supp. 1215
(E.D.Mich. 1981), this Court previously held in this case that the
doctrine of collateral estoppel precluded relitigation of the issue
of the City’s past intentional discrimination, as found in Baker.
Bratton and Baker found that, at least until 1968, the City
of Detroit “employed a consistent overt policy of intentional
discrimination against blacks in all phases of its operations.”
Bratton, supra, at 888. Since the Baker—Bratton decisions were
in the context of suits by white officers challenging the City’s
A-35
Opinion
voluntary affirmative action plan, neither Judge Keith nor the
Sixth Circuit had to reach the obvious corollary of these find-
ings—that this consistent policy of intentional discrimination
was in violation of the Fourteenth Amendment, which prohibits
all invidious racial discrimination, See Loving v. Virginia, 388
U.S. 1, 87 S.Ct. 1817, 18 L.Ed2d 1010 (1967). The record in
Baker is “replete with evidence”, Bratton, supra, at 888, of
invidious racial discrimination against blacks in the Detroit
Police Department prior to 1968.
In 1967, at a time when the City of Detroit was 40 percent
black, the Detroit Police Department was only 6 percent black.
Prior to that time, the Detroit Police Department had been a
segregated department where blacks were assigned to patrol
exclusively biack areas, scout cars were segregated, and nearly
every phase of the operation of the Police Department, from
patrols to investigations to supervisory functions, was segregated.
Perhaps even worse than the discrimination against blacks in the
Detroit Police Department itself was the effect of this discrimina-
tion upon relations between the police and the black community.
This relationship has been characterized by all observers as one
of deep hostility, and the race riots that occurred in this City in
1943 and 1967 have been directly tied to the hostility between
the police and the community, a direct result of invidious racial
discrimination in the Letroit Police Department.
Testimony introduced at trial in this case also confirmed the
history of intentional race discrimination against blacks. Chief
William Hart, who is black and who joined the Department in
1952 and eventually rose through the ranks to become Chief in
1976, testified about this past discrimination, as did Executive
Deputy Chief James Bannon, who is white and who joined the
Department in 1949.
Furthermore, Dr. Mark Bendick, Jr., the economist who
updated the Fechter analysis from Baker, also testified that the
Statistical shortfalls of blacks in the Detroit Police Department
A-36
Opinion -
over the years, up to the early ’70s, could only be explained as the
result of racial discrimination.
In DPOA v. Young, supra, a case in which white patrolmen
and the DPOA challenged the City of Detroit’s voluntary affirm-
ative action plan mandating a 50/50 black-white ratio in promo-
tions of patrolmen to sergeants the court delineated the constitu-
tional obligation here. “‘{[T]he Constitution imposes on states a
duty to take affirmative steps to eliminate the continuing effects
of past unconstitutional discrimination.” /d. at 691. In addition
to the foregoing holding, the court held that “(I]t was error to
require proof that the persons receiving the preferential treat-
ment had been individually subjected to discrimination, for ‘it is
enough that each recipient is within a general class of persons
likely to have been victims of discrimination.” ” Jd. at 694.
Based on these judicial findings of past discrimination it is
clear the City had an affirmative obligation to eliminate the
continuing effects of past racial discrimination, and to eliminate
all racial discrimination “root and branch.” Green v. County
School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20
L.Ed.2d 716 (1967). See also Swann v. Charlotte-Mecklenburg,
402 US. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971);
Keyes v. School District No. 1, 413 U.S. 189, 200 n. 11, 93 S.Ct.
2686, 2693 n. 11, 37 L.Ed.2d 548 (1973). The City had notice of
all of these judicial findings as of October 1, 1979 when Judge
Keith’s opinion in Baker was issued.
[1] Thus, in 1979, when the first of the massive layoffs of
black officers involved in this case took place, the constitutional
obligation of the City to eliminate continuing effects of past
racial discrimination continued to exist. Although the City,
through its voluntary affirmative action plan, had made great
strides towards satisfying its constitutional remedial obligation
prior to 1979, the obligation nonetheless remained in force in
1979. Although in 1978, the year before the layoffs involved in
this case took place, 39 percent of Detroit police officers were
black, the highest percentage ever, blacks still were 62.2 percent
A-37
Opinion
of the relevant labor market. The 1978 figure of 39 percent
blacks still represented a 6.6 percent shortfall of what the per-
centage of blacks would have been absent racial discrimination,
according to testimony of Dr. Bendick. Given the percentage of
blacks in the Detroit labor market in 1978, this figure is a
conservative one in terms of what percentage would have been
constitutionally mandated. See Bratton, as modified on rehear-
ing, 712 F.2d 222, 223 (6th Cir.1983).
It is clear that the layoffs in 1979 and 1980 had a devastat-
ing effect upon the City’s affirmative action plan. The present
percentage of black representation in the ranks of police officers
is 28.3 percent, and in all ranks 27.9 percent. The relevant labor
market in the City of Detroit today is well over 65 percent.
The City thus breached its affirmative constitutionally man-
dated duty to remedy past intentional racial discrimination in the
Police Department when it began its massive layoffs of black
officers in 1979 and 1980, and this breach was knowing and
intentional. “If the actions of school authorities were to any
degree motivated by segregative intent and the segregation
resulting from those actions continues to exist, the fact of remote-
ness in time certainly does not make these actions any less
‘intentional.’ ”’ Keyes, supra 413 US. at p. 210-211, 93 S.Ci. at
p. 2698-2699.
[2] The September 3 letter of Mayor Young to David
Watroba, plaintiffs Exhibit 1, shows that the City knew that it
was under a legal mandate to continue its affirmative obligation
to plaintiffs, and knew that the layoffs would have a drastic effect
upon this obligation. Mayor Young wrote:
In closing, let me remind you that affirmative action as
a concept is not negotiable. It is mandated not only by the
City Charter, but also by state and federal law and the
Courts as well.
It is also my opinion that the duty to implement affirm-
ative action does not stop just because we have found more
A-38
Opinion
equitable ways to hire new police ofhcers. Rather, we have a
double duty—and we are now challenged to find equitable
ways to implement the September 5 layoffs.
The fact that we have found ways to remove hiring
barriers at the front door does not relieve us to of our
obligation to find ways to remove comparable barriers at the
back door, now that the circumstances require it.
[3-6] The City argues that the law at the time was unclear
on this subject, especially in relationship to the City’s contractual
obligation to the DPOA with reference to seniority rights. It is
well established that good faith is nut a defense by a municipality
to a constitutional violation. Owen v. City of Independence, 445
U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Further, the
Fourteenth Amendment provides no mention of bona fide senior-
ity clauses nor contractual obligations as a defense. Nor can
state laws stand in the way of full and complete remedies for
constitutional violations. Milliken v. Bradley, 418 U.S. 717, 744,
94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). See also Bakke,
438 U.S. 265, at 307, 98 S.Ct. 2733 at 2757, 57 L.Ed.2d 750,
(race-conscious action to remedy past discrimination is permissi-
ble, if based upon prior judicial, legislative or administrative
findings of constitutional statutory violations.) (Powell, J.). Nor
can parties by contract limit their liability for pre-existing consti-
tutional violations.’ This law was clearly established at the time
the City began its unconstitutional course of action in laying off
massive numbers of black police officers.
"The City argues that in 1979 it was subject to conflicting legal obliga-
tions—its constitutional ones towards black officers and contractual obli-
gations towards white officers. The City never sought declaratory relief
from this or any other court. It cites no authority, nor could it, for the
proposition that constitutional remedies can be frustrated by contractual
obligations. Its citation of W.R. Grace v. Local 759, 461 U.S. 757, 103
S.Ct. 2177, 76 L.Ed.2d 298 (1983), for the proposition that it would have
been subject to double liability to white officers had it taken steps to
protect black officers is inapposite. W.R. Grace involved a conciliation
agreement under Title VII, with no constitutional issues involved, nor
previous judicial findings of past racial discrimination.
l
A-39
Opinion
[7] In its motion for reconsideration of this Court’s order of
partial summary judgement, the City objects to the finding of
intentional discrimination at the time the City began its layoffs in
1979, and attempts to attach particular significance to general
definitions of intent in the racial discrimination field, which hold
that foreseeable results and discriminatory impact, without
more, do not establish discriminatory purpose. See e.g. Colum-
bus Board of Education v. Penick, 443 U.S. 449, 464, 99 S.Ct.
2941, 2950, 61 L.Ed.2d 666 (1975), Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282,
2292, 60 L.Ed.2d 870 (1979). This is not the situation here.
Here we have the “more”—the judicial findings of past inten-
tional discrimination made by Judge Keith in Baker, and
affirmed by the Sixth Circuit in Bratton.
Given this past finding of intentional discrimination, the
City becomes liable every time it knowingly and foreseeably
breaches its affirmative obligations to remedy this discrimina-
tion. The remoteness in time from the original act of intentional
discrimination does not make later acts any less intentional.
Keyes, supra. “Each instance of a failure or refusal to fulfill this
affirmative duty continues the violation of the Fourteenth
Amendment.” Columbus Board of Education v. Penick, supra
443 US. at 459, 99 S.Ct. at 2947. Thus, the City’s discussion of
the particular intent of the City in 1979-890 is largely irrelevant.
“(T]he measure of the post Brown I conduct of the school board
under an unsatisfied duty to liquidate a dual system is the
effectiveness, not the purpose, of the actions in decreasing or
increasing the segregation caused by the dual system.” (Cita-
tions omitted). Dayton Board of Education v. Brinkman, 443
U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979).
This court does not ascribe racially discriminatory animus
to Mayor Young and his administration. It is obvious that he has
led the attempts of the City to remedy past discrimination
against blacks in the Police Department, attempts which have
placed the City of Detroit in the forefront of major metropolitan
areas in this regard.
A-40
Opinion
However, it is equally obvious from the testimony and
exhibits that in 1979, and more particularly in 1980, the City
made a politically expedient decision that it would rather face a
lawsuit by black police officers than face a lawsuit by white police
officers.* It also decided it would threaten layoffs of black officers
as a club against the DPOA in an attempt to roll back the 1978
Act 312 arbitration award, especially the retroactive pay and
COLA increases ordered in that award.
It is not the function of this Court to inquire into the
political wisdom of these decisions. However, the Constitution,
and particularly the Fourteenth Amendment, exists precisely to
insure that the individual and group rights of all citizens, espe-
cially minorities who have been historically shut out of the
political process, are protected in the political process.
[8] The rights of the black police officers and black citizens
of Detroit to a fully integrated police force werc sacrificed in the
1979 and 1980 layoffs. A city does not fulfill its obligations
under the Fourteenth Amendment, nor does a union fulfill its
obligations to fairly represent its members, by simply giving the
difficult problem of redressing racial injustice in our society to
the federal courts.
During the trial of this case, the United States Supreme
Court issued its opinion in Firefighters Local Union No. 1784 v.
Stotts, — U.S. — , 104S.Ct. 2576, 81 L.Ed.2d 483 (1984). This
case has initiated a far-reaching debate over its implications for
affirmative action and civil rights in general, but this Court need
not address this debate since Stotts is not controlling here.
* This, the City concedes: “... they (the city defendants) clearly would
have preferred to depart from seniority based layoffs, yet chose not to
because they believed that a court would be more likely to award back pay
to prevailing white plaintiffs than it would to prevailing black plaintiffs.”
Brief of City of Detroit on City’s motion for Partial Summary Judgment,
page 2.
iii...
A-41
Opinion
Stotts involved Title VII.’ This case involves liability under
the Fourteenth Amendment. Title VII contains a clause specifi-
cally exempting bona fide seniority systems from attack.'© The
Fourteenth Amendment contains no such restrictions. Stotts and
the Title VII cases relied upon by the Supreme Court there rest
on interpretations of Congressional intent in enacting Title VII,
and contain no interpretation of the Fourteenth Amendment.
In addition, Stotts involved a consent decree that specifi-
cally disclaimed liability for past discrimination. This case
involves prior judicial determinations of past intentional
discrimination.
The major-ty opinion in Stotts itself indicates it is distin-
guishable from a case where there has been a finding of past
intentional discrimination: “Neither does it suffice to rely on the
District Court’s remedial authority under Sections 1981 and
1983. Under these sections, relief is authorized only when there
is proof or admission of intentional discrimination .... Neither
precondition was satisfied here.” Jd. —U‘S. at n. 16, 104
S.Ct. at 2590 n. 16."
This view of Stotts is confirmed by the recent denial of
certiorari in Buffalo Teachers Federation v. Arthur, cert. denied
— US. —, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). The Second
Circuit’s opinion below in Arthur v. Nyquist, 712 F.2d 816 (2d
*42 U.S.C. § 2000e et seq.
" Sec. 703(h) of Title VII, 42 U.S.C. § 2000e-2(h).
'' The Court does not accept the City’s position advanced in post-trial
argument that Title VII law regarding bona fide seniority systems is
controlling in constitutional litigation. The cases cited by the City,
Chance v. Board of Education, 534 F.2d 993 (2d Cir.1976); Schaefer v.
Tannian, 538 F.2d 1234 (6th Cir.1976); Stokes v. New York St. Dept. of
Correctional Servs. 369 F.Supp. 918 (S.D.N.Y.1982); and General
Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 102
S.Ct. 3141, 73 L.Ed.2d 835 (1982) simply do not stand for this proposi-
tion, and until the U.S. Supreme Court declares otherwise, this Court will
not write “bona fide seniority system” into the U.S. Constitution, as the
City invites it to do.
A-42
Opinion
Cir.!983), involved the affirmance of a district court order that
overrode the seniority system involving teachers in the Buffalo
Public School System. This order was based on prior findings of
intentional discrimination by the Buffalo school system, includ-
ing the hiring of teachers.
The Second Circuit specifically held that the Title VII cases,
which were the basis for the holding in Stotts, particularly
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which protect
bona fide seniority systems, are not applicable in cases seeking
remedies for constitutional violations based on judicial findings of
intentional racial discrimination:
Nor was the District Court’s authority impaired, as the
Federation contends, by the Supreme Court’s decisions in
American Tobacco Co. v. Patterson, 456 U.S. 63 [102 S.Ct.
1534, 71 L.Ed.2d 748] (1982), and International Brother-
hood of Teamsters v. United States, 431 U.S. 324 [97 S.Ct.
1843, 52 L.Ed.2d 396] (1977). In those Title VII cases, the
Supreme Court ruled that bona fide seniority systems must
be honored, unless there has been a finding of actual intent
to discriminate... Here, however, the suit was brought to
remedy violations of the Constitution rather than Title VII,
and the District Court made a finding of intentional discrim-
ination in the Board’s maintenance of a segregated school
system. We therefore agree with the District Court that it
had the authority to curtail the seniority rights of the Feder-
ation’s membership in order to vindicate the constitutional
rights of the minority children in the Buffalo school sys-
tem .... Once a local board of education has been found to
have employed staff hiring practices that contribute to 2
racially segregated school system, the District Court has the
power to remedy those practices and to override seniority
systems that perpetuate those practices.
SPA Se ab pli) in WS Te le
we age
A-43
Opinion
Id. at 822." See also Oliver v. Kalamazoo Board of Education,
706 F.2d 757 (6th Cir.1983), which reaffirmed this general
principle, but held that the court-ordered remedy in the particu-
lar case was improper.
In general, no precedential effect should be given to a denial
of certiorari. However, this Court can only conclude that, in
light of footnote 16 in Stotts, supra, and the denial of certiorari
in Arthur only two weeks after Stotts, Stotts presents no author-
ity for changing this Court’s determination of liability against
the City of Detroit.
Therefore, this court reaffirms its determination that the
City breached its affirmative obligations to the plaintiffs in viola-
tion of their Fourteenth Amendment rights."
“(T]he nature of the violation determines the scope of the
remedy.” Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112,
3124, 41 L.Ed.2d 1069 (1974), (Milliken I); Hills v. Gautreaux,
425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544-45, 47 L.Ed.2d 792
(1974). Having established the liability of the City under the
Fourteenth Amendment, it now becomes necessary to delineate
" The City’s attempt to distinguish this case, as well as a similar case,
Morgan v. O'’Bryant, 671 F.2d 23 (Ist Cir.1982), cert. denied, 459 U.S.
827, 103 S.Ct. 62, 74 L.Ed.2d 64, on the grounds they involved the
vindication of the rights of students, not teachers, is not persuasive. Both
cases involved findings of past intentional! discrimination in hiring, as does
this case. It is hard to fathom how the City can read these cases to stand
for the proposition that it owes no constitutional duty to its biack police
officers. They stand for precisely the contrary.
In addition to its Fourteenth Amendment claim, plaintiffs assert claims
under the Thirteenth Amendment, 42 U.S.C. §§ 1981 and 1985(3).
Given this Court's holding regarding the Fourteenth Amendment liability
of the City, it is unnecessary to reach the Thirteenth Amendment and §
1981 claims. There has been no showing sufficient to sustain a finding of
conspiracy liability under 42 U.S.C. § 1985(3). The evidence shows that
the City and the DPOA have agreed upon virtually nothing since 1966.
A-44
Opinion
the nature of the wrong, and the relief to be ordered against the
City.
For the class of laid-off black officers there is cbviously the
loss of their jobs, which resulted from these unconstitutional acts,
as well as the loss of back pay and other fringe benefits. William
Bracey, former Chief of Patrol of the New York City Police
Department, a very informative and credible witness, who, in 36
years, rose from the ranks of patrolman to become the highest
ranking black officer in the New York Police Department, testi-
fied dramatically to this point.
He described the traumatic effect of layoffs on newly-hired
black officers, stressing that when black officers are laid off after
only serving briefly they have an added burden that white officers
do not have. Because of the past racial animosity to the police,
they often are alienated from friends and families, and are likely
to have less support from them when they are laid off after just
recently being hired. Often all of the distrust engendered by
years of segregation surfaces again, and the officer, his friends
and family think, “They're playing games with you. They really
didn’t want you in the first place.”
Chief Bracey testified that this trauma is even more acute
for rookie officers, and that the normal adjustment to becoming a
police officer is difficult enough without the newly-hired black
officer having the additional trauma of getting a message from
the City that it is not serious about remedying the past discrimi-
nation in the Department.
[9] Thus, based on this testimony, the Court finds that in
addition to the usual losses sustained with the loss of employ-
ment, the class of black officers suffered injury as a direct result
of the City’s past racial discrimination, and its failure in 1979
and 1980 to continue to remedy this discrimination. To put it
bluntly—they suffered the trauma of betrayal. After placing
their standing in the community in jeopardy by joining the police
force, they had to now face the inference that the City was
“playing games” with them, and was not serious about its efforts
A-45
Opinion
to remedy this past discrimination. This trauma was directly tied
to the City’s constitutional violation.
[10] Without minimizing the losses suffered by the black
officers, testimony at trial revealed a constitutional violation of
even greater magnitude—the harm to the black citizens of the
City of Detroit. Perhaps even more than the individual officers,
they are the victims in this case.
When we deal with the police in an employment situation,
we are not dealing with a private employer. The police function
“fulfills a most fundamental obligation of government to its
constituency,” Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct.
1067, 1071, 5S L.Ed.2d 287 (1978). Baker, Bratton, and DPOA
v. Young have affirmatively recognized what is known as the
“operational needs” defense for affirmative action in the Detroit
Police Department—that the presence of black officers on the
police force is vital in enabling the police to effectively fulfill its
police function. See also Van Aken v. Young, 541 F.Supp. 448
(E.D. Mich.1982).
In DPOA v. Young, supra, the Court held:
The argument that police need more minority officers is
not simply that blacks communicate better with blacks or
that a police department should cater to the public’s desires.
Rather, it is that effective crime prevention and solution
depend heavily on the public support and cooperation which
result only from public respect and confidence in the police.
In short, the focus is not on the superior performance of
minority officers, but on the public’s perception on law
enforcement officials and institutions.
608 F.2d at 696.
Baker and DPOA v. Young developed the operational needs
theory in terms of legal justification for affirmative action. The
testimony in this trial persuasively developed the converse—the
harm to the black citizens in Detroit when the City retreated
A-46
Opinion
from its commitment to affirmative action and a police force that
met the needs of its community.
The testimony of Chief Bracey, Patrick Murphy, former
Detroit and New York City Police Commissioner and currently
president of the Police Foundation, Chief Hart, Deputy Chief
Bannon, and Mayor Young developed the operational needs con-
cept. Former Commissioner Murphy testified that the presence
of black officers is vital to the whole concept of democratic
policing, and that police should come from the people they serve.
He emphasized the way black officers can educate white officers
on the mores, folkways and language of the black community.
He stated that it is absolutely necessary that the community be
involved in policing, and to accomplish that, police officers must
be representative of the community. He testified that there has
been great improvement in police-community relations over the
last 15 years, and that this has been largely due to the existence
of more minorities on police forces. This evidence is overwhelm-
ing, and largely unrebutted. No one today could seriously hold
the DPOA’s position that a white police force living in the
suburbs could effectively police the City of Detroit.
Mayor Coleman Young pointed out that formerly there was
great alienation between the black community and the police
department which resulted in ineffective law enforcement and
poor community relations. This was changed in recent years.
The Mayor also pointed out that the DPOA has exerted great
influence in past administrations, and has regularly resisted
efforts to hire more blacks. He testified that no officer of the
DPOA has ever protested racial discrimination in the Detroit
Police Department, or complained to him on behalf of any of its
black members.
Chief Hart and Deputy Chief Bannon also testified force-
fully on this subject. They said that, prior to 1974 when the City
first seriously began to eliminate racial segregation in the Detroit
Police Department, the Department was viewed as an occupation
army by the black citizens of Detroit. This, they said, reduced
A-47
Opinion
the effectiveness of the police in that they could not get witnesses
to testify or cooperate in solving crimes, controlling crowds, or in
crime prevention.
Both testified concerning changes that have taken place
since citizens began to see that the City was serious about
making the police more representative of the citizenry. There is
a greater degree of police-citizen cooperation, crowd control is
more easily handled, and crime prevention projects have
increased dramatically. Furthermore, police fatalities have been
drastically reduced. All of this is tied to the presence of sufficient
numbers of blacks on the Detroit Police Department.
Chief William Hart has been chief since 1976. He has a
doctorate from Wayne State University, and is a career police
officer, having entered the Detroit Police Force in 1952.
Chief Hart outlined the history and background of the
relationship between the police and the community in the 1950s
and the 1960s, pointing out that at that time relations were very
bad, and that the police, predominately white, was considered an
army of occupation. He testified that when he first went on the
force only three precincts had black officers, and that the depart-
ment was totally segregated. Poignantly, he testified that he
could not be assigned to a clean-up squad (a local vice squad in
the precinct) until he could find a sergeant who would have a
black on his team.
Chief Hart testified that the lack of trust in the police
department prior to the "70s made it very difficult to properly
police the City. He testified that after 1974 police-community
relations changed dramatically, and he says now the people in the
neighborhoods are part of the solution rather than part of the
problem. Violence has been greatly reduced against police
officers because of integration, and the rate of police killings has
been greatly reduced. Police brutality against citizens has been
greatly reduced and is almost nil at the present time.
A-48
Opinion
Finally, Chief Hart pointed out that, with the layoff of the
large numbers of black officers, the forward strides have been put
on hold. The layoff of blacks has hampered the ability to fight
narcotics, to do undercover work, to do surveillance work, and to
work with organized crime and vice. Although there is a residue
of good will in the community resulting from the increased black
representation on the force, such good will cannot last forever.
He wants all of the officers, black and white, called back.
Executive Deputy Chief James Bannon, of the Detroit
Police Department, is a white, career police officer, who has been
on the force since 1949. He holds a Ph.D. degree. He also
testified that there is presently mutual support between the
community and the Police Department, and reiterated Chief
Hart's testimony that formerly the Police Department was an
occupation force in the black community. The changes in atti-
tude that have come about as the result of the number of blacks
coming opto the force has been dramatic. Several factors
brought about this change in the community and in the force,
according to Chief Bannon:
1. A black Mayor and a black Police Chief have given
people a feeling of accessibility;
2. Blacks are in policy positions in the Department for the
first time;
3. The high visibdility of black officers in the community has
been significant in changing the community's attitudes.
The testimony of all police officials was that, as the result of
the increase in black representation on the police force, the
community relations with the police force had dramatically
improved since 1974, and there has been a complete reversal in
community attitude towards the force. They all testified, how-
ever, that the good will developed by the Detroit Police Depart-
ment since 1974 is not inexhaustable, and can be used up if the
community begins to see the return to the past days of racial
segregation in the Detroit Police Department. Although the
presence of many black command officers, who were unaffected
«th aN + oA Sala A Ae sat iy aw ava a.
re ee at ee ae ee ee
A-a9
Opinion
by the layoffs, somewhat ameliorates this problem, it is undis-
puted that black patrol officers are the most visible, have the
most daily contacts with the community, aad are most important
in crime prevention and community relations. Therefore, mac-
sive reductions in the numbers of black police officers below the
rank of sergeant on the street will have dramatic effects.
Just as significant as the testimony were the exhibits show-
ing the effect of these layoffs on the actual operations of the
Detroit Police Department. A particularly significant exhibit
was Exhibit 645, which shows the racial composition of the
Detroit Police Department by sections and precincts. The Spe-
cial Events Unit, a highly visible unit charged with crowd control
during major events, has been reduced from 28 percent black
prior to the 1979 layoffs to presently six percent black. Precinct
No. 5, which in September 1977 had a population that was 63.1
percent black, today has 18 percent blacks on patrol. Precinct
No. 15, a predominently white precinct, which, prior to the
layolfs, had 33 percent blacks on patrol, today has four percent
blacks. Only six black officers, divide’ among three shifts, are
now assigned to this precinct. This statistic parallels the worst
days of segregation in the police department.
Finally, Exhibit 645 shows that the Youth Bureau, in a city
where 80 percent of the youth is black, is only 13 percent black.
Given the importance of black officers as role models for the
youth and the importance of preventing youth crime, this statis-
tic is a striking demonstration of the effect of this constitutional
violation.
Thus, the City is in real danger of seeing the gains of the
1970's in terms of police-community cooperation reversed, if the
City’s unconstitutional layoffs are not remedied.
It is clear from the testimony of Mayor Young and the police
experts, Bracey, Hart, Bannon, Murphy, and the exhibits, that
the return of black officers to the streets of the City of Detroit is
hot only necessary to vindicate the constitutional rights of the
black police officers, but is also an absolute necessity to restore
A-50
Opinion
balance to the community, and the confidence of the community
in the Detroit Police Department. Their testimony was intelli-
gent, credible and convincing, and clearly established the need
for the return to the force of the black police officers.
Thus, there are two constitutional violations which must be
remedied—the harm resulting from the City’s abandonment of
its black officers, and the harm to the black community if the
police force is returned to the days of racial segregation.
[11,12] It is well established by now that race-conscious
remedies are permitted to redress constitutional violations,
Bakke, supra, 438 U.S. at 307, 98 S.Ct at 2757; Bratton, supra,
at 882; DPOA v. Young, supra, and Oliver v. Kalamazoo, supra.
Class-wide relief to remedy past constitutional violations is
equally permissible without the individual members of the class
having to prove that they were actual victims of past discrimina-
tion. “[I]t was error to require proof that the persons receiving
the preferential treatment had been individually subjected to
discrimination, for ‘it is enough that each recipient is within a
general class of persons likely to have been victims of discrimina-
tion.’ ” DPOA v. Young, supra, at 694, citing Bakke."
[13] Although race-conscious remedial relief is permissible,
the remedy must be “necessary” and “tailored” to cure the
constitutional violations. Oliver, supra, at 764. A similar stan-
dard was established by Justice Powell in Bakke: “When they
[classifications] touch upon an individual’s race or ethnic back-
ground, he is entitled to a judicial determination that the burden
he is asked to bear on that basis is precisely tailored to serve a
compelling governmental interest.” Bakke, supra, 438 US. at
299, 98 S.Ct. at 2753. And it is clear that this Court is mandated
to “balance individual and collective interests.” Swann v.
Charlotte-Mecklenburg, supra 402 U.S. at 16, 91 S.Ct. at 1276.
'* For the reasons set forth, supra, pp. 1202-1204, Srorts does not affect this
holding of the Sixth Circuit.
A-51
Opinion
Based upon the findings of liability and the findings of the
nature of the constitutional violation, this Court will order the
following relief to cure the constitutional violation:
[14] The first relief to be ordered is the reinstatement of all
black officers laid off in 1979 and 1980 who currently remain on
layoff status, and who wish to return.’ This should be done in an
orderly manner and over a period of time, so that the City will
have an opportunity to make the budget adjustments necessary to
effectuate the return of these officers.
Therefore, the Court will order that all these officers be
called back within 180 days of this opinion. Seniority will control
in determining the order of callback. Within 30 days of the date
of this opinion, the City shall present to the Court a plan to
accomplish this.
All callbacks will be subject to the normal procedures of the
Police Department—that is, the Department must determine if
each officer desiring to return to duty is still qualified to be a
Detroit police officer. If he or she is not, but can become
qualified through additional training, such training shall be pro-
vided. In short, the Department may be subject officers desiring
to return to duty to the normal procedures employed by them for
all returning laid-off police officers.
‘As discussed earlier, this Court rejects the City’s argument that the
distinctions made in Arthur v. Nyquist, supra, and Morgan v. O’Bryant,
supra, between harm to the public and harm to individual employees,
prevent this Court from ordering the recall of the plaintiff officers. The
constitutional mandate of this Court is that the remedy must be related to
the “condition alleged to offend the Constitution ....”° Milliken v. Brad-
ley, 433 U.S. 267 at 280, 97 S.Ct. 2749 at 2757, 53 L.Ed.2d 745. This is
what the recall of these officers is designed to do. The City argues against
the recall of the officers, and yet asks this Court to order affirmative
action recalls and layoffs at will of the City, intervention in the City-
DPOA Act 312 proceedings, and a wage freeze (City Triai Brief, p. 49).
This argument is self-serving and based on Byzantine legal distinctions
which this Court rejects.
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Opinion
Moreover, all officers returned under this order shall be
awarded the seniority he or she would have had, if there had been
no layoffs.
[15] In addition, the Court permanently enjoins the City
from laying off, suspending, or discharging, except for discipli-
nary reasons, any black police officer without the prior approval
of this Court. This remedy is necessary to vindicate the needs of
the individual black officers and the compelling state interest in a
police force reflective of this community.
Similarly, the Court permanently enjoins the City from
laying off, suspending or discharging, except for disciplinary
reasons, any white police officer, without the prior approval of
this Court. It is possible that one of the solutions the City will
seek to the remedy in this case will be to attempt to layoff white
officers with higher seniority than blacks. This the Court, at the
present time, will not allow. The case law—Bakke, Oliver,
Arthur—demands that the Court take into consideration the
interests of white officers with higher seniority than blacks.
The financial information furnished to the Court, which
perhaps could be relevant to this issue, was less than satisfactory.
Although it was represented that the Budget Director of the City
of Detroit would be produced as a witness, the City failed to
produce him, and in his stead produced a budget analyst, Edward
Rego, whose testimony was vague and imprecise upon budget
figures.
Mr. Rego, while admitting that the budget of the City is
merely a financial manifestation of a series of political choices,
was unable to explain items amounting to some $300,000,000,
nearly 20 percent of the 1.5 billion budget for 1984-1985. He
made much of the claim that certain budget items are restricted
by state or federal law, but the record, insofar as it was made,
established that only 39 percent of City employees are on jobs
which are funded from either revenue sharing or other grant
monies from the federa) or state governments.
A-53
Opinion
While the Police Department budget was less than 26 per-
cent of the City’s non-restricted budget, the Police Department’s
share of budget reduction effort in 1979, 1980, and 1983 was
more than 50 percent of the total. This is so even though the cost
of a police officer (salary plus fringes) proved to be ony $44,560,
rather than the $50,000 per year earlier used by the City.
Next, the Court must concern itself with the rights of laid-
off white officers who may be senior to black officers being called
back under this order. Their interests must be taken into account
in fashioning any final remedy. This is mandated by Bakke,
DPOA v. Young, Oliver v. Kalamazoo, and Arthur v. Nyquist.
But in every one of those cases, the white officers or teachers were
actively present in the lawsuit and presented their interests. This
did not happen here. Although the DPOA protested that it did
represent the white officers, this Court has found that they did
not, and that the white officers had not adequate representation
in this case."* There is not showing on this record of the numbers
or the interest of these officers, and the Court has nothing other
than speculation upon which to make a determination of their
interests.
This Court will therefore allow 30 days for any laid-off
white officer, with greater seniority than any laid-off black officer
called back, to intervene in this lawsuit for a determination of his
or her interest. The Court expresses no opinion as to these
interests, if any, nor does the Court express any opinion as to
whether doctrines of estoppel, latches, etc. would bar the Court
from considering their claims. The Court simply believes that,
given the record introduced by the DPOA in this case, and
contrary to their representations that they represented the laid-
off white officers, equity requires that any white officer who
desires be heard. It will be the responsibility of the City of
Detroit to notify ail laid-off white officers of this determination.
‘See colloquy between the Court and counsel, Transcript of Testimony,
Volume 14, June 13, 1984, pp. 1649-53.
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Opinion
The next request for relief is the ordering of back pay. This
Court will not order back pay relief against either the City or the
DPOA. Even in Title VII cases, where back pay is generally
presumed, the Court stili retains equitable discretion and can
deny it for equitable reasons. See City of Los Angeles Depart-
ment of Water and Power v. Manhart, 435 U.S. 702, 722-23, 98
S.Ct. 1370, 1382-83, 55 L.Ed.2d 657 (1978). But this is not a
Title VII case. Here the Court has even greater equitable
discretion under a constitutional analysis, especially in light of
judicial mandates that constitutional remedies be tailored to the
scope of the constitutional violation. Milliken, supra, Oliver v.
Kalamazoo, supra. The Court must necessarily balance the
individual and collective interests involved.
Although this Court has already held that class-wide reme-
dial relief is not limited to individual victims of prior discrimina-
tion, and has ordered such remedial relief, and although this
Court does not believe that any legal authority bars back pay ina
situation such as is presented here, the Court must take into
account the fact that no evidence has been presented that any
individual member of the plaintiff class was an actual victim of
racial discrimination in hiring. This is an equitable factor that
must be weighed in balancing individual and collective interests
and tailoring the scope of the remedy.
The wrong in this case was not only that of individual
discrimination. It was also a collective wrong, a wrong to the
expectations of the citizenry and the black police of the City of
Detroit, who expected the City to be serious about its commit-
ment to affirmative action, which would result in a police force
reflective of the community. The collective interests outweigh
the admittedly important private interest in back pay in this case,
and merit denial of back pay.
Regardless of the amount of any back pay award," it would
certainly be substantial. These costs would be borne primarily by
" If back pay were ordered, Chief Hart said it would ruin the City. Dr.
Sidney Mitre, Professor of Economics at Oakland University, testified
that the total wage loss suffered by all officers as a result of the layoffs
was $50,734,700, the total pension loss was $32,321,667, and the fringe
benefit loss $5,386,940, for a total of more than $86,000,000.
A-55
Opinion
the black citizenry of Detroit. While financial inability to pay is
no defense to a constitutional remedy, financial factors certainly
must enter into the equitable balancing this Court must under-
take. The relief the Court has ordered will sufficiently make the
plaintiffs whole, and is tailored to the constitutional violation. In
view of the fact that the violation here was to the collective
interests of the laid-off officers and the citizens of Detroit, this
Court believes justice will not be served by a massive back pay
award, and therefore back pay will be denied.
IV
The DPOA, which was established in 1943, was formally
certified to serve as the collective bargaining agent for all Detroit
police officers below the rank of sergeant in 1966. It was granted
its authority by the Public Employee Relations Act of 1965,
M.C.L.A. § 423.211, which provides in pertinent part;
Representatives designated or selected for purposes of
collective bargaining by the majority of the public employ-
ees 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 with respect to
rates of pay, wages, hours of employment or other conditions
of employment...
[16,17] As the exclusive bargaining representative for its
members, the DPOA has a duty of fair representation under
Michigan law. Lowe v. Hotel & Restaurant Employees Union,
Local 705, 389 Mich. 123, 205 N.W.2d 167 (1973). Plaintiffs
claim that the DPOA breached this duty, which is a pendent one
brought under Michigan law. According to Michigan law, the
Court must look to federal law for guidance in deciding the fair
representation issue, since the full development of this doctrine
has taken place through judicial interpretation of the National
Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. See
Bebensee v. Ross Pierce, 400 Mich. 233, 253 N.W.2d 633
(1977).
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Opinion
[18,19] The duty of fair representation is a judicially cre-
ated remedy. There is no specific reference to it in either the
NLRA or in Michigan statutory law. Instead, the doctrine has
been developed by the judiciary as a necessary, and, in the case of
racial discrimination, a constitutionally imposed duty arising
from the grant of authority by legislatures to unions to be the
exclusive representatives of their members. By allowing unions
to be exclusive representatives of their members, and thus sub-
suming rights of minorities in collective bargaining, unions have
not been granted licenses to practice racial discrimination in
violation of either the Fourteenth Amendment or the equal
protection clause of the Michigan Constitution. Mich. Const.
Art. 1, § 2.
Since this case involves claims of racial discrimination by an
exclusive bargaining representative (the DPOA), the Court must
be especially sensitive to the fact that the duty of fair representa-
tion arose as a doctrine to protect minorities, and blacks in
particular, from racial discrimination by unions. When the
NLRB was originally established, leaders of black organizations
expressed fears that by granting exclusive representative status
to certain unions, racially discriminatory policies by unions
would have the authority of a law.
Congress attempted to allay these fears in the debate sur-
rounding the NLRA, and the United States Supreme Court
firmly outlawed racial discrimination by unions by establishing
the duty of fair representation in Steele v. Louisville & Nashville
Railroad Co., 823 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 178 (1944).
The Court held there that the duty of fair representation
required the union to represent minority union members without
hostile discrimination, fairly, impartially, and in good faith:
So long as a labor union assumes to act as the statutory
representative of a craft, it cannot rightly refuse to perform
the duty, which is inseparable from the power of representa-
tion conferred upon it, to represent the entire membership of
ies
FS
<
|
2
A-57
Opinion
the craft. While the status does not deny to such a bargain-
ing labor organization the right to determine eligibility to its
membership, it does require the union, . . . to represent non-
union and minority union members of the craft without
hostile discrimination, fairly, impartially, and in good
faith....
Id. at 204, 65 S.Ct. at 232.
[20] It is clear that the exclusivity principle of the NLRA
and M.C.L.A. § 423.211 is constitutional only if there is a duty
of fair representation, and that means representation of all mem-
bers of the union. The duty of fair representation is a fundamen-
tal limitation upon union activity. Humphrey v. Moore,
375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964).
Without the judicially imposed duty of fair representation,
the tradeoffs made by minorities in allowing unions to be their
exclusive representatives in order to protect majority interest and
to achieve industrial peace through the encouragement of volun-
tary agreements, the purposes of the NLRA would be hollow. In
return for exclusive bargaining, blacks in the DPOA are prohib-
ited from bargaining directly with the City of Detroit, and are
prohibited from taking any direct action against the City of
Detroit independently of the DPOA. See Emporium Capwell
Company v. Western Addition Community Organization,
420 US. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975). The DPOA is
the only spokesperson for black police officers to the employer,
and thus has tremendous power over the welfare of black employ-
ees. The judiciary has a duty to see that this power is not abused,
and ¢%es not become a grant of authority to practice racial
discrimination.
Michigan has recognized the duty of fair representation as a
matter of state law:
In many ways, the relationship between a union and its
members is a fiduciary one. Certainly it is a relationship of
fidelity, of faith, of trust, and of confidence.
A-58
Opinion
Lowe, 389 Mich. at 145, 205 N.W.2d 167.
And,
[T]he union must act without fraud, bad faith, hostil-
ity, discrimination, arbitrariness, caprice, gross nonfea-
sance, collusion, bias, prejudice, wilfull, wanton, wrongful
and malicious refusal, personal spite, ill will, bad feelings,
improper motives, misconduct, overreaching, unreasonable
action, or gross abuse of its discretion... .
Id. at 146-47, 205 N.W.2d 167.
There is no reason to believe that Michigan would interpret
this duty more narrowly than the U.S. Supreme Court. The state
has a historical commitment to the abolition of racial discrimina-
tion, and has been a leader in breaking down the barriers
between races. In fact, to the extent that Michigan case law has
evinced a standard different from the federal standard, it appears
to be even more strict than the federal standard. “When the
general good conflicts with the legal or civil rights of an individ-
ual member, the courts will recognize and enforce them as
against the will of the majority union membership.” Lowe, 389
Mich. at 146, 205 N.W.2d 167.
As a judicial remedy, the legal standard for finding a breach
of the duty of fair representation must be somewhat open ended
and flexible, given different factual circumstances. As Judge
McCree pointed out in St. Clair v. Local No. 15 of International
Brotherhood of Teamsters, 422 F.2d 128, 130 (6th Cir.1969):
“The phrase ‘fair representation’ is something of a term of art,
and the standards by which we are bound have not been set down
explicitly in a code.”
Thus, “fairness” is the standard for the duty of fair repre-
sentation. The duty requires rational decision-making and proce-
dural protection to protect minority members from discrimina-
tory treatment. It has been said that the duty of fair
representation creates a duty of “fair dealing.” Jnternational
Union of Electrical Workers v. NLRB, 307 F.2d 679, 683
oo
A-59
Opinion
(D.C.Cir.1961), cert. denied 371 US. 936, 83 S.Ct. 307, 9
L.Ed.2d 270 (1962).
The duty of fair representation was defined by the United
States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct.
903, 17 L.Ed.2d 842 (1967):
Under this doctrine, the exclusive agent’s statutory
authority to represent all members of a designated unit
includes a statutory obligation to serve the interests of all
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct....
Id. at 177, 87 S.Ct. at 910.
The test was similarity stated in Farmer v. ARA Services,
Inc., 660 F.2d 1096 (6th Cir.1981):
A union fails to fairly and impartially represent all
members of a bargaining unit, and thus breaches its duty of
fair representation, when the union’s conduct toward ary
member becomes arbitrary, discriminatory or in bad
faith....
Bad faith or fraud is not a necessary element of a
charge of unfair representation if the union’s conduct is
otherwise arbitrary or perfunctory (citing cases). Arbitrary
perfunctory union conduct which exhibits something more
than simple negligence is a breach of the duty of fair
representation.
Id. at 1103.
The Farmer court also pointed out that a union is required
to represent its members fairly and impartially, and to make an
honest effort to serve the interests of all without hostility to any.
To fulfill its duty, the court said: “the union must have not only
enforced the provisions of the collective bargaining agreement in
a non discriminatory manner, it must have also fairly represented
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Opinion
all segments of the bargaining unit during the negotiations of
each collective bargaining agreement.” /d. at 1103.
Any one of three elements—arbitrariness, discrimination, or
lack of good faith—can create a breach of the duty of fair
representation. The standard was well summarized in Griffin v.
U.A.W., 469 F.2d 181 (4th Cir.1972):
First, it must treat all factions and segments of its
membership without hostility or discrimination. Next, the
broad discretion of the union in asserting its rights of its
individual members must be exercised in compiete good
faith and honesty. Finally, the union must avoid arbitrary
conduct. Each of these requirements represents a distinct
and separate obligation, the breach of which may constitute
the basis for civil action.
Id. at 183. (emphasis added).
In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957), the Supreme Court recognized that active or tacit con-
sent to discriminatory enforcement of a facially neutral conduct
could constitute a breach of the duty of fair representation. /d. at
46, 78 S.Ct. at 102. And the Second Circuit has found a duty of
fair representation violation in a union’s failure “[T]o provide
substantive and procedural safeguards for minority members of
the collective bargaining unit.” Jones v. TWA, 495 F.2d 790,
798 (2d Cir.1974).
This circuit has recognized that the duty of fair representa-
tion is an active and affirmative obligation on the part of union
leadership. The duty “requires a union to assert the rights of its
minority members in collective bargaining sessions anu not pas-
sively accept practices which discriminate against them.”
E.E.0.C. v. Detroit Edison Company, 515 F.2d 301, 314 (6th
Cir.1975), vacated, 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267
(1977), citing Macklin v. Spector Freight Systems, 478 F.2d 979
(D.C.Cir.1973). See also Bonilla v. Oakland Scavenger Com-
pany, 697 F.2d 1297, 1304 (9th Cir.1982): “The union has an
A-61
Opinion
affirmative obligation to oppose employment discrimination
against its members.”
[21,22] The union's obligation under the duty of fair repre-
sentation is analogous to that of a fiduciary to a principal.
Clearly the union has a higher standard to its members than the
standard owed by the employer to the employee. This is con-
firmed by language in Steele: “It is a principle of general
application that the exercise of a granted power to act on behalf
of others involves the assumption towards them of a duty to
exercise the power in their interest and behalf, and that such a
grant of power will not be deemed to dispense with all duty
towards those for whom it is exercised unless so expressed.” 323
U.S. at 202, 65 S.Ct. at 232.
Under the standard first established in Steele, elabovated in
Vaca v. Sipes, and recognized by the Michigan Supreme Court in
Lowe, and in keeping with the firm policy of the State of Michi-
gan against racial discrimination, this Court finds the DPOA
guilty of a breach of its duty of fair representation through its
failure to adequately represent the interests of its black members
in the layoffs of 1979 and 1980.
[23] Initially, it must be stated what this liability is mor
predicated upon. It is not predicated upon any adherence by the
DPOA to a seniority-based system of layoffs. This Court finds
the seniority system negotiated between the DPOA and the City
to be bona fide. Nor is this liability predicated upon any duty of
the DPOA to make concessions or give up demands won at the
bargaining table and in the courts. The Court agrees with the
DPOA that no such per se duty to minority members of a
bargaining unit exists, and this finding of liability does not imply
such a duty.
[24] The DPOA’s breach of the duty of fair representation
flows not merely from any reliance upon a seniority system, or a
simple refusal to make concessions in the interest of minorities.
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Opinion
The D.P.O.A.’s liability is premised on more than this, and flows
inescapably from the following findings:
1. A history of racial hostility and indifference to the rights
and needs of black officers.
The history of black relationships with the DPOA is one
showing at the best indifference, and at the worst hostility, to the
blacks by the white members of the DPOA throughout the years.
Witness afver witness, all black and all police officers or
sergeants, testified to the discriminatory manner in which they
were treated by the DPOA. Of particular significance was the
testimony of Fernon Douglas, a black police officer who came on
the force in 1972 and is still a member of the Detroit Police
Department. In 1978, he was elected a shift steward and also a
chief steward of the DPOA. In 1978, he was nominated for
sergeant-at-arms, one of the four officers of the union, but did not
run after John Vella, a white member of the executive board, told
him that, if he ran for sergeant-at-arms, all blacks would be
removed from committee assignments. Vella denied making such
a statement, but the Court finds as a matter of fact that he did.
Douglas was nominated again for sergeant-at-arms in Sep-
tember 1982, but, after a meeting of black stewards, he decided
not to run. Additionally, he was active in proposing constitu-
tional changes, one of which would have required that no DPOA
funds be spent for litigation, except for litigation relating directly
to the contract between the City and the DPOA. This amend-
ment, and other constitutional amendments proposed by him and
other black officers, were soundly defeated.
It is true that the DPOA has always represented black
officers in disciplinary proceedings and court proceedings the
same as they represented white officers, but this does not change
the fact that in 1979 and 1980 the union did not adequately
represent its black members in bargaining to prevent their
layoffs.
}
|
:
}
i
Throughout, the DPOA has maintained opposition to all
forms of affirmative action by the City and the Police Depart-
ment. In addition to demanding strict seniority in its contract, it
has intervened repeatedly in litigation designed either to block
implementation of affirmative action, of supported those trying to
block affirmative action. Testimony was introduced indicating
that the DPOA has spent over $500,000 financing its anti-
affirmative action litigation. And this intervention has not been
limited to the City of Detroit. For example, it has filed amicus
briefs supporting challenges to affirmative action in Boston, New
Orleans, and Memphis. In none of these cases was the DPOA
directly involved, and efforts of black members to amend the
constitution to prohibit the use of union funds for such amicus
briefs were soundly defeated by the organization.
It should be obvious to any neutral observer that blacks, who
at one point comprised almost 40 percent of the DPOA, would be
greatly offended by the use of such vast sums of money to fight
what blacks believed to be efforts to achieve racial equality for
them.
To partially deal with the problems of black officers, the
Guardians, an organization of black police officers of all ranks,
and from departments other than Detroit, was formed in the
early 1960's. In addition, the Committee of Police Officers for
Equal Justice (CPOEJ) was formed to deal with the problems of
black officers. The DPOA avoided dealings with either the
Guardians or the CPOEJ, and is hostile to these organizations. In
some contexts, the DPOA's explanation that these organizations
had supervisors and non-Detroit members and, therefore, created
dual union concerns, would be legitimate. The Court finds, how-
ever, tnat in the context of past racial discrimination against
blacks in the Detroit Police Department, and the past racial
hostility of the DPOA, these explanations are largely pretexiual.
Further support for this conclusion is found in the fact that,
according to the testimony of the DPOA officials at tr .', not a
single black officer in their union is worthy of trust. Any member
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Opinion
of the Guardians is automatically “disloyal.” Non-members of
the Guardians, like Fernon Douglas, who still expresses black
concerns yet is a militant unionist; are “not interested in the
union as a whole.” These explanations are pretextual, especially
given the broad-based support of the Guardians, and the support
from both black and white officers enjoyed by Fernon Douglas.
In 1978, Lewis Colson, a black officer, ran for vice-president on
the Guardian slate and received 1,100 votes. The same year,
Deborah Robinson, a presidential candidate received 1,200 votes.
Blacks in 1978 made their largest gains ever in terms of union
positions in the DPOA, and the Court cannot believe that this
political consideration did not play a role in the DPOA leader-
ship’s passivity in face of the 1979 and 1980 layoffs.
2. The total absence of black representation in the leader-
ship levels of the union.
Throughout its entire history, the DPOA has been a white-
dominated union. It has a board of directors, made up of 75
stewards, who are elected in each precinct and division, and from
each shift. The board of directors elects from its members nine
persons to serve on the executive committee, and the membership
at large elects four officers; the president, vice-president,
secretary-treasurer, and sergeant-at-arms. All committee
appointments are made by the president, with the approval of the
executive committee.
No black has ever been elected to any one of the top four
positions in the DPOA in its 41-year history. There have only
been two black members who have served on the executive board,
and the board of directors has only 18 nonwhite members.
The most significant committee of the DPOA is the griev-
ance committee, which consists of three members, who, along
with the four elected officers, constitute the bargaining commit-
tee. No black has ever served on the grievance committee. Nor
has any black ever served on the finance committee, another
major committee of the DPOA. As stated earlier, this Court
rejects explanations that there were not sufficient “trustworthy”
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Opinion
blacks to fill these positions or that “political patronage” should
be the only criterion for union leadership when this patronage
operates to exclude blacks.
3. The massive nature of the 1979 layoffs—one-quarter of
the DPOA membership, one-half of the black membership, a
loss of approximately $500,000 a year in dues, and the totally
perfunctory and passive behavior of the union leadership.
As early as the Spring of 1977, the City began efforts to
obtain DPOA agreement to a proposal that future layoffs be
carried out in a manner that would avoid having a racially
discriminatory impact on blacks and women. These proposals
were strongly and consistently resisted by the DPOA. Affirmative
action layoff procedures were proposed again in 1978, and
throughout discussions and negotiations the Union would at no
time back off its position on seniority and its refusal to consider
any type of affirmative action layoffs.
Finally, the first layoffs came in October 1979. Mark
Ulieny, the City’s Labor Relations Director, advised
Mr. Watroba, by letter on September 27, 1979, that 400 police
officers would be laid off as of October 12, 1979. Although the
position of the DPOA had been that the City was merely postur-
ing, as of September 27, 1979, it knew that it was no longer
posturing. Nonetheless, the DPOA did nothing to avert the 1979
layoffs. 71 percent of those laid off at that time were black
officers. No effort was made to use the same formula successfully
used on 1975, when a majority of those to be laid off were white,
and no other effort was made, as it was in 1981, when the vast
majority of those to be laid off were white.
In February 1980, the City again proposed, as to layoffs,
that seniority should be used only to the extent that it does not
reduce the proportions of minority group members or females
within the bargaining unit. This proposal was flatly rejected by
the DPOA.
rs
A-66
Opinion
The record is clear that the DPOA was well aware, as early
as the Spring of 1980, that upwards of 700 police officers were to
be laid off in the fall, and that the overwhelming majority of
those to be laid off would be black. Even though officers of the
DPOA testified that they thought the City was merely posturing,
it is clear that they knew that more layoffs were coming, and it
was clear the DPOA was not going to take significant action to
avoid them. In the August 18, 1980 issue of Tuebor, the union
newsletter, there is specific mention of the anticipated layoff of
more than 700 DPOA members within a matter of days.
On August 29, less than two weeks after the Tuebor issue
which described in great detail the potential layoffs, Mayor
Young sent a letter to Watroba inviting him to a meeting to
discuss ways of averting the scheduled layoffs. In that letter, the
Mayor spoke of the impending layoffs of 690 Police Officers, and
emphasized the disastrous effect it would have upon the City’s
past affirmative action:
But there is an additional reason why these layoffs will
hurt us all. During the past seven years, we have been
working to create a police department integrated by race
and sex through an affirmative action program. This pro-
gram was an essentia! pre-condition to establishing
harmonous police-community relations, without which our
police can never effectively carry out its duties.
Because these layoffs are being made according to strict
seniority, in accordance with the present contract, and not in
pursuance of our affirmative action program, they will dras-
tically reverse our progress towards the goal of a fully
integrated police force, and we will be moving towards a
department again composed predominately of white and
male officers.
The Mayor then made specific proposals to the Union:
Recent negotiations for a new contract have proved
fruitless and the issues are about to be submitted to final
A-67
Opinion
arbitration, as required by existing law. This is one such
issue. However, it will be many months before a decision is
made. As a temporary measure, without prejudice to our
respective positions before the arbitrator, I suggest the fol-
lowing alternative procedures for the impending layoffs:
1. Instead of seniority being the sole criterion for lay-
offs, thus resulting in grossly disproportionate layoff of
blacks and women, we agree that layoffs be made on the
basis of separate lists, such as the plan for proportions which
was approved by the Sixth Circuit Court of Appeals
recently, as an appropriate means of implementing our
affirmative action program.
Or, if you prefer;
2. Instead of any layoffs, a 13.8 reduction in the Police
Department payroll be agreed upon, with by equal reduction
by all officers of workdays or some other equitable method.
Governor Milliken’s recent proposal for applying an
affirmative action program to the layoff of State employees
has just been approved by the Michigan Civil Service Com-
mission and serves as an example of what we can do for
Detroit by mutual agreement. I realize the shortness of time.
But our commitment to the welfare of our community com-
pels all of us to do what we must to avoid moving backward
towards racial hostility and divisiveness.
When asked what the union response to the Mayor’s propo-
sal was, Watroba replied that seniority was the cornerstone of
unionism, and that the DPOA would not, under any circum-
stances, negotiate separate layoff lists in which race was a factor
in determining who was to be laid off. He said that, if they were
going to deal with the Mayor, they would have to deal on the
basis of his second proposal, a 13.8 percent wage reduction, and
not his proposal for separate layoff lists. He said, however, that,
while the union was willing to pursue some quid pro quo in the
negotiations with the Mayor, it was never going to agree to 13.8
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Opinion
percent. He said that, if 13.8 percent was the bottom line, the
answer of the union would have to be no.
Watroba responded to the Mayor’s letter on September 3,
1980, stating, inter alia:
We fully recognize our duty to bargain on behalf of all
of our members. Our seniority clauses have been bargained
with the interest of our total membership in mind. They
cannot be cast aside when the very situation they were
designed to cover is about to occur. You will recall the City
voluntarily withdrew its demands for proportionate layoffs
of blacks and whites in the last rounds of negotiations.
** * * *
The City must be willing, in the process, to negotiate
about all factors leading to the budget shortfalls, including
ill-advised, ill-timed promotions, the elimination of artificial
quotas, and restraints upon equal opportunity. If you, with-
out pre-conditions eliminating areas of bargaining, will per-
sonally begin marathon good-faith bargaining designed to
settle the contract, rather than enhance images, we are
prepared to start at 7:00 p.m. on September 8, 1980, or at
your earliest convenience.
The Mayor responded to Watroba’s letter the same day
indicating his willingness to bargain and to meet with reference
to the layoffs. He made the further observations in that letter:
First, in response to your statement that no previous
‘meaningful proposals were made to avert the layoff” by the
City, let me remind you that on April 2, 1980, during
negotiations with the DPOA, we proposed that pay rates be
reduced to the level of the pay increases that other City
employee unions accepted. This would have avoided all
police layoffs.
Again, on June 17, the City asked the DPOA to waive
retroactive pay adjustments due from July 1977 to Decem-
ber 1978, and to waive the COLA roll-in due July }, 1980.
a
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Opinion
In return for agreement of this proposal, the City offered to
reduce the scheduled layoff by 440 employees. As you will
recall, the DPOA rejected both of these proposals.
Second, I must question the extent of your concern
about the impact of the layoffs on affirmative action gains in
the Detroit Police Department. The DPOA’s brief on eco-
nomic issues, prepared for the Act 3-12 Arbitration Panel in
1977, said: “The DPOA does not question management’s
right to determine manpower levels, but questions whether
veteran police officers should subsidize new hires.” This
language makes it apparent to me that the DPOA had no
qualms about sacrificing the jobs of new police officers to
finance its economic demands.
** *& *& *
In closing, let me remind you that affirmative action as
a concept is not negotiable. It is mandated not only by the
City Charter, but also by State and Federal law, and by the
courts, as well.
It is also my opinion that the duty to implement affirm-
ative action does not stop just because we have found more
equitable ways to hire new police officers. Rather, we have a
double duty—that we are now challenged to find equitable
ways to implement the September 5 layoffs.
The fact that we have found ways to remove hiring
barriers at the front door does not relieve us of our obliga-
tion to find ways to remove comparable barriers at the back
door now that the circumstances require it.
In the meantime, the executive board of the DPOA met on
September 2. While that meeting was in progress, Lewis Colson,
executive director of the Guardians, hand-delivered a letter to
Watroba. Watroba testified he left the meeting to receive the
letter and to talk to Colson. In that letter, the Guardians called
for action other than standing merely on seniority with reference
to layoffs. The letter, in pertinent part, said:
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Opinion
The Guardians are extremely disturbed by the planned
layoffs of 690 officers scheduled for September 5, 1980. The
reported statistics indicate that these layoffs will have a
disproportionate effect on minority and female officers.
When considered in connection with the 400 officers laid off
in October, there is a real reversal of the progress that has
been made to integrate the police force at all levels.
As you know, Mayor Young has indicated he is willing
to discuss other options to avert the proposed layoffs. We
understand his proposals call for the temporary institution
of separate seniority lists, or a temporary reduction of work
hours and pay. We believe that either of these suggestions is
reasonable, and we urge you to accept one of them, or at the
very least, to negotiate in good faith with the Mayor to avoid
the layoffs. As you are aware, prior to the introduction of the
City’s affirmative action plan for the department the minor-
ity representation on the police force was less than 5 percent.
Over the last six years, as the direct result of the affirmative
action plan, the minority representation rose to over 33
percent prior to the October 1979 layoffs. However, the
impending layoffs of 693 police officers will reduce the
minority representation to less than 26 percent.
It is common knowledge in our community that the
integration of the police force, to the extent it has occurred,
has had a profound and positive effect on police and commu-
nity relations. The wide spread alienation of black Detroit
residents from the Police Department has changed. Individ-
ual citizens and community groups alike are beginning to
identify and work with the police. The affirmative action
program has been in effect since 1974. Since that time there
has been a 30 percent reduction in crime and, most impor-
tantly, no police officer has been killed in the line of duty.
Finally, we believe the Union is duty bound, by its own
constitution and by law, to protect that job security of all its
members. Article~Ill;-§ 2 of the Union’s Constitution
requires the Union’s leadership to promote job security.
eee
A-71
Opinion
Additionally, as the DPOA is the exclusive bargaining
agent for all of the police officers, it owes a legal duty to
fairly represent all officers—black and white, male and
female. If the DPOA stands idly by and watches minority
and female officers be subject to disproportionate layoffs,
when the Mayor has offered reasonable ways to avert this
result, the Guardians will believe that the DPOA intends
this result. We will, therefore, view this an intentional act by
the DPOA to violate the duty of fair representation owed to
minority and female members, and we will take appropriate
action.
This letter was never answered.
On the eve of the layoffs, September 5, 1980, Watroba met
with the Mayor and others in the Mayor’s office for approxi-
mately three and one half hours. The DPOA at that meeting
proposed a “*25 and out” plan and the City adoption of a Chrysler
model, by which there would be a freeze or a deferral of benefits
otherwise due, with some kind of a pay-out at a later date. It also
proposed there be discussion of standards and criteria concerning
promotions from bargaining units. The union rejected the dual
seniority lists, and also the Mayor’s 13.8 percent pay reduction
proposal. They also rejected a lower figure of either 12 or 12.8
percent. Additionally, Watroba rejected the Mayor’s suggestion
that the membership be permitted to vote on whether to accept a
13.8 percent reduction or some other lower percentage reduction.
Nothing came of the meeting. The Union would not budge
on its Opposition to a pay reduction or separate seniority lists, and
the layoffs went into effect the next day.
At no time did the union make any reasonable effort to avert
the layoffs. This is in stark contrast to the actions taken by the
DPOA in 1975 and 1981 when layoffs were threatened and the
vast majority of officers who would be laid off were white. See
discussion of these concessions infra. Here the layoffs affected
principally black officers, and no realistic efforts to avert the
layoffs were made.
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Opinion
The union’s response to the threatened layoffs of 690
officers, which would, with the 1979 layoffs, total one-quarter of
their union and one-half of the black membership, was totally
perfunctory. No special meetings were called at any level of the
union. The union officials who took the stand at trial could not
even recall if the layoffs were discussed at the routine, regular
meetings which took place during the period. No response at all
was given to Colson’s letter—it was simply referred to counsel,
and the DPOA leadership awaited this lawsuit. No votes regard-
ing any possible compromises were taken at any level of the
union, which could have at least allowed the laid-off officers to
express their views and test its support in the union. It is this
perfunctory behavior of the DPOA officials that breached the
duty of fair representation here, not any per se refusal to make
concessions or agree to affirmative action layoffs.
4. The present day failure to make any serious efforts to
assist these black officers.
It is significant that the 1983 bargaining demands of the
union do not in any way address themselves to the recall of laid-
off officers. The DPOA contended at trial that some bargaining
demands tangentially affect the layoffs, such as the reduction of
police reserves, and the demand that there be only one call to any
police car at any time, but these demands are so tangential as to
have little, if any, effect on layoffs. The actual fact is that the
union, even in its 1983 demands, evinced no real interest in
getting black laid-off police officers back to work. Again, given
the DPOA’s history, this Court cannot believe that this behavior
would be the same if one-half of its white membership was laid
off.
5. A history of concessions and prompt union action to
avert layoffs in 1975 and 1981 when the jobs of white officers
were at stake.
In 1975, a layoff of police officers, most of whom would have
been white, was threatened, and litigation was commenced,
which was assigned to Judge Damon Keith, then a United States
manta easiness
A-73
Opinion
District Judge. Judge Keith mediated a solution. The net result
of the mediation was to avert layoffs of police officers, the vast
majority of whom would have been white. An agreement was
reached that, during a period of 18 months, each member of the
bargaining unit would take 14 days off without pay, and would
get an additional ten days off with pay, and that these 24 days
could be taken off during the 18 month period. Other minor
concessions were made, and layoffs were averted."
In 1981, further layoffs were threatened because of the
City’s financial condition. The union agreed to a pay freeze to
protect the jobs of the officers. At that time, the officers who
would have been laid off were largely white officers. In return for
the pay freeze, the DPOA obtained improved longevity, better
vacation, better dental program, and the elimination of a 55 year
old retirement age, so that officers could retire after 25 years of
service. it should be noted, however, that this was basically a
concession contract, with no wage increases at a time of fairly
serious inflation in this country.
The actions of the DPOA in 1975 and 1981, when largely
white officers would have been involved in layoffs, resulted in
concessions to protect jobs. This activity stands in sharp contrast
to its actions in 1979 and 1980 when the layoffs affected princi-
pally black officers.
The union argues that the situation was different in 1975
and 1981. The Court recognizes that there are differences. The
1975 solution did not appear to be a very popular one with the
City. The 1981 solution took place at a time of great financial
‘* During the first 12 months of the agreement, the first time that an officer
would call in sick, that officer’s sick bank would not be reduced, but
rather one of the 10 paid days would be reduced and used in a sick bank
as a sick day as opposed to depleting the sick bank. It was further agreed
that, with reference to holidays worked, all officers would receive 12 hours
compensatory time as opposed to payment for working on holidays, and
for a 12 or possibly 13 month period, they were to be paid for less hours of
work, so that for every two week pay-period they would receive 76 hours
of pay rather than 80 hours of pay.
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Opinion
distress for the City, and the union was told that the City was on
the verge of bankruptcy.
However, these differences do not explain the basic fact
that, when white officers were to be laid off, the union did
something; when the overwhelming majority were blacks, the
union did nothing. It is not the business of this Court to decide
precisely what the DPOA should have done in 1979 and 1980.
The duty of fair representation creates no such guidelines. The
duty only commands that the union, when racia! minorities are
involved, behave in a manner that is representative, not perfunc-
tory and passive. This is what the DPOA failed to do here.
The DPOA has offered other explanations for its actions in
1979 and 1980. It must be emphasized that this Court has no role
in, nor desire to enter into, the collective bargaining process, and
question collective bargaining decisions made by the DPOA in
the course of negotiations with the City. The union has a wide
range of discretion in bargaining insofar as these efforts are
reasonable. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338,
73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953).
Thus, this Court is not concerned with any reasonable activ-
ity of the DPOA in collective bargaining, even certain activity
which sacrifices the interests of minorities for the majority. This
Court is only concerned with activity that is arbitrary, racially
discriminatory, and not in good faith. And this Court finds that
in its representation of its black members, the DPOA’s perfunc-
tory and passive behavior in 1979 and 1980 breached the duty of
fair representation.
This finding of liability of the DPOA is not predicated upon
any l<egal finding that its defense of a bona fide seniority system
was per se wrong. It is recognized that there have been no prior
judicial findings of intentional racial discrimination against the
DPOA as there were against the City of Detroit, and it is well
recognized by this Court that Title VII protects from liability
bona fide seniority systems. See Teamsters and Stotts, supra. It
was the DPOA’s action as a whole, not the defense of any
ame
:
?
;
:
4
A-75
Opinion
particular position, that was unreasonable and breached the duty
of fair representation here.
There is nothing in Stotts, or any other case, that would
prevent a union and employer from mutually and voluntarily
agreeing to an affirmative action layoff system in the future.
Nothing compels a bargaining representative to limit seniority
clauses solely to the relative lengths of employment of respective
employees. See Ford Motor Co. v. Huffman, supra. See also
Burchfield v. United Steelworkers of America, 577 F.2d 1018
(Sth Cir.1978). Seniority rights are creatures of contract, always
subject to modification. Thus, there is no merit to the DPOA’s
argument that there were legal obstacles to a voluntary agree-
ment regarding affirmative action layoffs.
For the reasons given, the Court finds that the DPOA has
breached the duty of fair representation owned to its minority
members and must respond legally."
The Court finds no liability of the DPOA under the Thir-
teenth Amendment. It has found no case law applying to the
Thirteenth Amendment under the facts of this case, and declines
to do so here. The Court finds no reason to consider the claim
under 42 U.S.C. § 1981 in light of the result reached here. The
Court finds no violation of 42 U.S.C. § 1985(3). See n. 14 supra.
‘’ This finding has support in Brown v. Neeb, 644 F.2d 551 (6th Cir.1981):
We find the Union's refusal [to agree on wage reductions] disturbing.
Where large numbers of union members scheduled for layoff are mem-
bers of a racial minority, a union's refusal to take pay cuts to avert layoffs
is significant, prima facia evidence of racial discrimination. This is
especially true in a situation where the laid-off minorities were recently
hired under an affirmative action plan and/or where the union has
opposed affirmative action.
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Opinion
V
The Court having determined that the defendant DPOA has
breached its duty of fair representation, it now must turn to a
consideration of relief.
In determining relief, the Court retains the full measure of
its equitable and legal power to fashion a remedy that is just and
eq'titable to all parties.
The Supreme Court in Steele, supra, said:
We conclude that the duty which the statute imposes on
a union representative of a craft to represent the interests of
all its members stands on no different footing *nd that the
statute contemplates resort to the usual judicial remedies of
injunction and award of damages when appropriate for
breach of that duty,
323 US. at 207, 65 S. Ct. at 234.
In fashioning a remedy, this Court, as a chancellor, does not
desire to punish defendants for what they have done in the past,
but to fashion a remedy that will insure that in the future the
DPOA will adequately represent, as a bargaining agent, all of its
members, and will not discriminate against its minority
members.
No assessment of damages will be made against the DPOA,
but rather, an order will be entered guaranteeing that the black
members of the DPOA have their just and fair say in the
operation of the union. In this way, positive steps towards
preventing a future breach in the duty of fair representation will
be taken.
If the black members of the DPOA are given their proper
representation in the leadership structure of the DPOA they can,
in the future, protect minority members against a breach of the
duty of fair representation by the Union. It is this goal that this
Court seeks. The Court is only intervening in the internal affairs
A-77
Opinion
of the DPOA to the extent necessary to assure adequate repre-
sentation of black members in the relationship between the
DPOA and the City of Detroit.
[25] Therefore, the following relief against the DPOA will
be ordered: within 12 months of the date of this opinion, all
committees of the DPOA, especially grievance and finance, the
board of directors, and the executive board shall reasonably
reflect the racial composition of the union.
At the end of 12 months, plaintiffs shall notice a hearing
before this Court so that the Court can determine if there has
been substantial compliance with this order, and a good-faith
effort to reach the goals set forth above. At that hearing, the
Court will take such action as it deems necessary against the
DPOA, if it has failed to comply with this mandate.
Vi
For the reasons given in this opinion, a judgment will issue
embodying the following:
|. The previous determination of this Court that the City
breached its affirmative obligations to plaintiffs in violation of
their rights under the Fourteenth Amendment in the layoffs of
1979 and 1980 is reaffirmed.
2. The City of Detroit is ordered to recall all black police
officers laid off in the 1979 and 1980 layoffs who desire to return
to the force, and who are qualified for police work, within 180
days, and submit a plan to accomplish this to this Court within
30 days.
3. No back pay will be awarded to any recalled officer, but
all recalled officers will be entitled to the full seniority they would
have had, if they had remained on duty from the time of the
layoffs until the time of the recall.
4. The City of Detroit shall not lay off, suspend, of dis-
charge any police officer, except for disciplinary reasons, without
A-78
Opinion
the prior approval of this Court. This order will remain in effect
until the further order of this Court.
5. Any white police officer laid off in the 1979 and 1980
layoffs who has seniority over any black officer recalled may,
within 30 days, petition this Court for consideration of his or her
case, and for consideration of his or her recall. The Court
expresses no opinion as to the merit of any such claim.
6. The DPOA breached its duty of fair representation under
Michigan law in bargaining on behalf of plaintiff police officers.
7. The DPOA is ordered, within 12 months, to remedy its
breach of the duty of fair representation by having a reasonable
representation of blacks in the leadership structure of the DPOA,
including, but not limited to, the board of directors, all commit-
tees, and the executive committee. Within 12 months from the
date of this opinion, the Court will conduct a further hearing to
determine if reasonable representation has been achieved and, if
it has not, to determine what remedies the Court will order
against the DPOA for its failure to comply with this order.
This opinion shall constitute the findings of fact and conclu-
sions of law required by F.R.C.P. 52(a).
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Opinion
NAACP, DETROIT BRANCH, The Guardians, Inc.,
Brady Bruenton, Cynthia Martin, Hilton Napoleon, Sharron
Randolph, Betty T. Roland, Grant Battle, Cynthia Cheatom,
Evin Fobbs, John Hawkins, Helen Poelinitz, on behalf of them-
selves and all other similarly situated, Plaintiffs,
7.
DETROIT POLICE OFFICERS ASSOCIATION
(DPOA), David Watroba, President of the DPOA, City of
Detroit, a Michigan Municipal Corporation, Mayor Coleman A.
Young, Detroit Police Department, Board of Police Commission-
ers, Chief William Hart, Governor William Milliken, and The
Michigan Employment Relations Commission, Defendants.
CIVIL ACTION NO: 80-73693
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
620 F. Supp. 1173; 39 Fair Empl. Prac. Cas. (BNA) 192; 40
Empl. Prac. Dec. (CCH) P36, 257
October 21, 1985
COUNSEL
Thomas Atkins, Esq., 135 Eastern Parkway, #11-B-1,
Brooklyn, NY 11238, Barnhart and Mirer, By: Jeanne Mirer,
Esq., 2900 Cadillac, Detroit, MI 48226. Gary Benjamin, Esq.,
1666 Penobscot Building, Detroit, MI 48226, James W. McGin-
nis, Esq., 1215 Ford Building, Detroit, MI 48226, for plaintiffs
Walter S. Nussbaum, ESQ., 333 West Fort Street, Suite
2000, Detroit, MI 48226, Mara Kalnins-Ghafari, Esq., 333 West
Fort Street, Suite 2000, Detroit, MI 48226, for defendants
Detroit Police Officers Association David Watroba, President of
DPOA, Frank W. Jackson, Esq., Assistant Corporation Counsel,
1010 City-County Building, Detroit, MI 48226-3491, Daniel B.
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Opinion
Edelman, 1140 Connecticut Ave., N.W., Suite 800, Washington,
D.C. 20036, Terri L. Hayles, Esq., Assistant Corporation Coun-
sel, 1010 City-County Building, Detroit, MI 48226, for defend-
ants City of Detroit, Mayor Coleman A. Young, Detroit Police
Department, Board of Police Commissioners, Chief William
Hart, Samuel E. McCargo, Esq., 243 West Congress, Suite 350,
Detroit, MI 48226, Ronald J. Reosti, Esq., 925 Ford Building,
Detroit, MI 48226
OPINION
Following trial on this matter,' plaintiffs filed a petition for
attorney fees and costs to be assessed against defendants Detroit
Police Officers Association (DPOA) and the City of Detroit
pursuant to 42 U.S.C. § 1988, which states in pertinent part:
In any action or proceeding to enforce a provision of sections
1977, 1978, 1979, 1980 and 1981 of the Revised Statutes [42
U.S.C. §§ 1981-1983, 1985 1986] ..., the court, in its discre-
tion, may allow the prevailing party, other than the United
States, reasonable attorney’s fee as part of the costs.
On January 17, 1985, the Court held an evidentiary hearing
on the motion for fees, and it became clear that the parties
disputed the validity, appropriateness and compensability of both
the fees and costs sought by plaintiffs. In addition, the DPOA
argued that no fees should be assessed against it since the
plaintiffs had not prevailed against it ina §§ 1981, 1982, 1983, or
1985 claim.
The Court referred the matter to Magistrate Komives, as a
Special Master, to conduct an evidentiary hearing on the follow-
ing issues:
' This civil rights case arose out of the layoff of black police officers in
Detroit in 1979 and 1980. The opinion is reported at 591 F. Supp. 1194
(E.D. Mich. 1984).
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Opinion
A. As to fees sought:
1. The actual time being sought by each of the
claimants.
2. The appropriateness of the time claimed, as
demonstrated by relevant documentation.
3. The extent to which there is impermissible
duplication.
4. The extent to which the time for which compen-
sation js sought is reasonable.
5. Specification of which time claimed is allocable
to the City defendants, the DPOA, or both.
6. Circumstances pertaining to adjusting the lode-
star fee.
7. With the exception of the appropriate rate to be
applied, which the Court shall decide, determinations
about any other factual matters relating to fees that the
parties may put into dispute.
B. As to costs:
1. Determination of what costs are being claimed.
2. Determination of the appropriateness of the
costs claimed, in light of the relative documentation.
3. Allocation of costs to the DPOA, City defen-
dant, or both.
4. The extent to which the costs claimed are
reasonable.
5. Any other factors relating to costs that the
plaintiffs may put into dispute.
The Magistrate held six days of hearings, and out of the
morass of factual disputes prepared an extremely thorough and
heen aenmennennale
A-82
Opinion
helpful Report and Recommendation, as well as exhaustive find-
ings on the factual issues before him. In view of the fact that the
referral was to the Magistrate as a Special Master, this Court
will review the Magistrate’s findings under a clearly erroneous
standard. See Brown v. Wesley's Quaker Maid, No. 84-1141
(6th Cir. Aug. 27, 1985).
In addition, there are legal issues not referred to the Magis-
trate that this Court must determine. These include the thresh-
old question whether the plaintiffs were prevailing parties in this
action, the question whether the DPOA is liable for plaintiffs’ be
allocated between the two defendants. Part I of this opinion will
discuss these issues. Part II will determine the reasonable rate
per hour to be paid to the various attorneys in the case. Part III
will determine the number of reasonably compensable hours.
Part IV will determine costs.
In order to recover attorney fees and § 1988, a plaintiff must
be a prevailing party. In Hensley v. Eckerhart, 461 U.S. 424
(1983), the Court pointed out:
A plaintiff must be a “prevailing party” to recover an
attorney's fee under § 1988. The standard for making this
threshold determination has been framed in various ways.
A typical formulation is that “plaintiffs may be considered
“prevailing parties’ for attorney’s fees purposes if they suc-
ceed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.”
Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (CAI 1978).
This is a generous formulation that brings the plaintiff only
across the statutory threshold. It remains for the district
court to determine what fee is “reasonable.”
Id. at 433.
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Opinion
Although the Magistrate made specific findings regarding
the extent to which plaintiff prevailed, the question of whether
plaintiff is a prevailing party is a legal question not subject to the
clearly erroneous review standard used for the Magistrate’s
Findings of Fact. Nonetheless, the Court agrees with the Magis-
trate that plaintiffs did prevail against both the City of Detroit
and the DPOA.
The plaintiffs had significant successes against the City
The Court determined that the City had breached its affirmative
obligations to the plaintiffs, in violation of their rights under the
Fourteenth Amendment. The Court ordered significant relief,
including the recall of all black police officers laid off in 1979 and
1980, and the recall of all white officers laid off. The Court
further enjoined the City from suspending, discharging or laying
off any police officers in the future, except for disciplinary rea-
sons, without prior approval of the Court. Finally, the Court
determined that the City had an affirmative duty to take all
necessary steps to eliminate all vestiges of prior employment
discrimination in the Detroit Police Department. |
The City argues that the plaintiffs in fact did not prevail
against them because it succeeded in it biggest objective, that is,
the defense against any money claims. The City argues that, at
most, plaintiffs won an acceleration of recalls, since the City
intended to make some recalls anyway. The Court rejects this
argument. There is no question but that the plaintiffs prevailed
against the City. The fact that money claims and back pay were
not ordered does not mean that plaintiffs were not prevailing
parties. Plaintiffs succeeded in many significant issues in the
litigation, which achieved much of the benefit the parties sought
in bringing suit. Therefore, under Hensley, the plaintiffs were
prevailing parties against the City of Detroit.
By the same token, plaintiffs were prevailing parties against
the DPOA. The Court found that the DPOA breached its duty of
fair representation under Michigan law. This was a significant
issue. The Court ordered, a a remedy of this breach of duty, the
A-84
Opinion
establishment of reasonable representation of black officers in the
leadership structure of the DPOA within 12 months of the
opinion. The DPOA really does not argue that plaintiffs did not
prevail, and as a threshold matter it is clear the plaintiffs were
prevailing parties against the DPOA. The DPOA argues, rather,
that no fees should be awarded against it because it was not held
liable under § 1981, or any other civil rights statute.
The Court rejects the DPOA’s argument that plaintiffs
cannot recover attorney fees against it under § 1988 because it
was not held liable for any violation of §§ 1981, 1983 or 1985.
The resolution of this question requires an analysis of the Court’s
holding in the underlying case, as well as analysis of the legisla-
tive history of § 1988 and the cases interpreting § 1988.
In its opinion deciding this case, NAACP v. Detroit Police
Officers Association, 591 F. Supp. 1195 (E.D. Mich. 1985), the
Court found that under Michigan law the DPOA breached the
duty of fair representation owed to its black members. In
discussing the DPOA’s breach, this Court said:
“This finding of liability of the DPOA is not predicated
upon any legal finding that its defense of a bona fide senior-
ity system was per se wrong. It is recognized that there have
been no prior judicial findings of intentional racial discrimi-
nation against the DPOA as there were against the City of
Detroit, and it is well recognized by this Court that Title VII
protects from liability bona fide seniority systems. See
Teamsters and Stotts, supra. It was the DPOA’s action as a
whole, not the defense of any particular position, that was
unreasonable and breached the duty of fair representation
here.”
Id. 1219.
As to plaintiffs other claims, the Court held:
“The Court finds no liability of the DPOA under the
Thirteenth Amendment. It has found no case law applying
to the Thirteenth Amendment under the facts of this case,
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and declines to do so here. The Court finds no reason to
consider the claim under 42 U.S.C. 1981 in light of the
result reached here. The Court finds no violation of 42
U.S.C. § 1985 (3).”
Id. at 1220 (emphasis added).
The legislative history of § 1988 indicates that the Congress
intended fees to be awarded in such situations. In Maher v.
Gagne, 448 U.S. 122 (1980), the Supreme Court discussed this
legislative history in a footnote:
“The legisiative history makes it clear that Congress
intended fees to be awarded where a pendent constitutional
claim is involved, even if the statutory claim on which the
plaintiff prevailed is one for which fees cannot be awarded
under the Act. The Report of the Committee on the Judici-
ary of the House of Representatives accompanying H.R.
15460, a bill substantially identical to the Senate bill that
was finally enacted, stated:
‘To the extent a plaintiff joins a claim under one of
the statutes enumerated in H.R. 15460 with a claim
that does not allow attorney fees, that plaintiff, if it
prevails on the non-fee claim, is entitled to a determina-
tion on the other claim for the purpose of awarding
counsel fees. Morales v. Haines, 486 F.2d 880 (7th
Cir.,1973). In some instances, however, the claim with
fees may involve a constitutional question which the
courts are reluctant to resolve if the non-constitutional
claim is depositive. Hagans v. Lavine, 415 U.S. 528
(1974). In such cases, if the claim for which fees may
be awarded meets the “‘substantiality” test, see Hagans
v. Levin, supra; United Mine Workers v. Gibbs, 383
U.S. 715 (1966), attorney’s fees may be allowed even
though the court declines to enter judgment for the
plaintiff on that claim, so long as the plaintiff prevails
on the non-fee claim arising out of a “common nucleus
of operative fact.” United Mine Workers v. Gibbs,
supra, at 725. H.R. Rep. No. 94-1558, p. 4, n. 7
(1976).”
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Opinion
Id. n.15 at 132.
The Maher Court went on to note, in the text of its opin
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