USA, et al v. Det City, et al

Filing 2520

OPINION AND ORDER Ruling on Remaining Requests in the DWSD re 2473 MOTION Interim Relief re 2410 Order filed by Detroit Water and Sewerage Department. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
United States of America,
Plaintiff,
v.

Honorable Sean F. Cox

City of Detroit, et al.,

Case No. 77-71100

Defendants.
_____________________________/
OPINION & ORDER
RULING ON REMAINING REQUESTS
IN THE DWSD’S MOTION FOR INTERIM ORDER
This matter is currently before the Court with respect to three outstanding requests for
relief that were initially raised in a Motion for Interim Order (D.E. No. 2473) filed by the Detroit
Water and Sewerage Department (“DWSD”) on September 24, 2012. In compliance with this
Court’s orders, the DWSD filed a supplemental brief regarding these outstanding requests on
January 4, 2013. The City of Detroit filed a supplemental brief, objecting to requests by the
DWSD relating to two Charter provisions. No other briefs regarding the remaining requests for
relief have been filed and the time permitted for doing so has expired. The Court finds that oral
argument would not significantly aid the decisional process. See Local Rule 7.1(f)(2), U.S.
District Court, Eastern District of Michigan. The Court therefore orders that the remaining
requests for relief will be decided without oral argument.
As explained below, the Court shall DENY the DWSD’s requests relating to the
Michigan Employment Relations Commission (“MERC”). Nevertheless, the Court shall clarify
the limited scope of its injunction as to the MERC and the Wayne County Circuit Court. In
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addition, the Court shall DENY the DWSD’s requests relating to two Charter provisions because
the Court is not convinced that the provisions at issue are impeding the DWSD from complying
with its NPDES Permit, the Clean Water Act, the current ACO with the MDEQ, or this Court’s
orders.
BACKGROUND
This action, which was filed in 1977 and has been active since that time, has an
exceptionally long history that is more fully set forth in this Court’s September 9, 2011, Opinion
& Order (D.E. No. 2397), its November 4, 2011 Order (D.E. No. 2410), and its October 5, 2012
Opinion & Order Regarding The DWSD’s Motion For Interim Order (D.E. No. 2489). Only a
truncated version of the background facts is included here.
The United States Environmental Protection Agency (“EPA”) initiated this action in
1977 against the City of Detroit (“the City”) and the DWSD, alleging violations of the Clean
Water Act, 33 U.S.C. § 1251 et seq. (“the Clean Water Act”). The undisputed violations in this
case involve the DWSD’s wastewater treatment plant and its National Pollutant Discharge
Elimination System (“NPDES”) permit. As explained in this Court’s September 9, 2011,
Opinion & Order:
For the more than 34 years during which this action has been pending, the
City and the DWSD have remained in a recurring cycle wherein the DWSD is cited
for serious violations of its NPDES permit, the City and the DWSD agree to a
detailed remedial plan aimed at compliance, but the DWSD is unable to follow the
plan and is again cited for the same or similar violations. Although this Court has
taken various measures, designed to eliminate the various impediments to
compliance that have been identified by experts and acknowledged by the City, those
measures have proven inadequate to achieve sustained compliance.
(Id. at 1).
In September of 2011, this Court was faced with the unenviable task of determining how
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to remedy these ongoing and serious violations of the Clean Water Act, given the complex
nature of the problem and the fact that extraordinary actions taken over the past four decades
proved inadequate. Rather than order a remedy on its own, without input from the City, this
Court considered other options and ultimately took a unique approach. (D.E. No. 2397 at 4243). This Court ordered “the Mayor of the City of Detroit (and/or his designee), the City
Council President and President Pro Tem, and a current member of the Board (to be chosen by
the Board) to meet and confer and, within 60 days of the date of this order, propose a plan that
addresses the root causes of non-compliance that are discussed in this Opinion & Order. In
making such recommendations to the Court, these individuals shall not be constrained by any
local Charter or ordinance provisions or by the provisions of any existing contracts.” (Id. at 4243) (emphasis in original).
Thereafter, the City officials and BOWC member identified therein (“the Root Cause
Committee”, hereafter the “RCC”) met to devise and propose a workable solution to remedy the
underlying root causes of noncompliance. On November 2, 2011, the RCC submitted a written
proposed “Plan of Action” (D.E. No. 2409), which this Court found adequately addressed the
majority of the root causes of non-compliance outlined in this Court’s September 9, 2011,
Opinion & Order. On November 4, 2011, this Court issued an Order adopting the Plan of Action
proposed by the RCC and ordered its implementation. (D.E. No. 2410).
Although the RCC agreed that certain changes to existing collective bargaining
agreements (“CBAs”) needed to occur, it did not agree on how to achieve the necessary changes.
Accordingly, this Court considered the issue on its own and ordered specific relief relating to
CBAs. Among other things, the Court ordered that “[t]he DWSD shall act on behalf of the City

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of Detroit to have its own CBAs that cover DWSD employees (‘DWSD CBAs’). DWSD CBAs
shall not include employees of any other City of Detroit departments. The Director of the
DWSD shall have final authority to approve CBAs for employees of the DWSD.” (D.E. No.
2410 at 6). The November 4th Order also contains the following provision:
13.

The Court enjoins the Wayne County Circuit Court and the Michigan
Employment Relations Commission from exercising jurisdiction over
disputes arising from the changes ordered by this Court. The Court also
enjoins the unions from filing any grievances, unfair labor practices, or
arbitration demands over disputes arising from the changes ordered by this
Court.

(Id. at 7).
The DWSD has since been working toward implementing this Court’s November 4,
2011, Order. That order provides that, until the order has been fully implemented, or this case
has been dismissed, the RCC shall meet at least once a month to discuss the implementation of
the plan.
On September 24, 2012, the DWSD filed a “Motion for Interim Order Clarifying
November 4, 2011 Order and for Expedited Briefing Schedule.” (D.E. No. 2473). The DWSD
asserted that it needs an interim order to address uncertainties and ambiguities that arise out of
this Court’s November 4, 2011, Order, that are impeding the DWSD’s ability to implement it.
That motion included multiple requests for injunctive relief.
On October 5, 2012, this Court issued an “Opinion & Order Regarding The DWSD’s
Motion For Interim Order” (D.E. No. 2489). This Court granted the motion in part, denied it in
part, took certain requests under advisement, and ordered supplemental briefing regarding
certain requests.

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Meanwhile, the RCC was still meeting on a regular basis to discuss the implementation
of the November 4, 2011, Order.
On November 9, 2012, the Special Master submitted a “Root Cause Committee Plan of
Action Clarification of November 8, 2012” to the Court, that had been submitted to the Special
Master. (See D.E. No. 2505). The RCC’s Plan of Action Clarification stated that the RCC was
aware of the pending motion seeking clarification of the November 4th Order and, because it
actually devised the Plan of Action that was adopted by the Court, it “felt it was important to
issue this interim report and weigh in on some of the items under consideration for the Court.”
(D.E. No. 2505 at 3). The RCC made recommendations regarding several of the DWSD’s
pending requests for relief. Among other things, the RCC recommended that the “DWSD should
file a supplemental brief with respect to the issue of whether Corporation Counsel should be
enjoined from acting under Sections 7.5-208 and 7.5-209 of the Detroit City Charter with respect
to DWSD.” (Id.). The RCC agreed that clarification is needed as to MERC’s role in DWSD
labor relations matters going forward, but offered no recommendation on that issue. (Id. at 6).
On November 15, 2012, the DWSD filed a “Motion For Order Adopting The Root Cause
Committee Plan Of Clarification” (D.E. No. 2507) wherein the DWSD moved the Court to: 1)
adopt the RCC’s Plan of Clarification as an order of the Court; and 2) extend the time for the
DWSD to file its supplemental brief until fourteen (14) days after the Court rules on the Motion
to Adopt the RCC’s Plan of Clarification.
On December 14, 2012, this Court issued an Opinion & Order (D.E. No. 2512) wherein
it: 1) adopted the RCC’s Plan of Clarification as an order of the Court, thereby resolving the
majority of the requests for relief that had been raised in the DWSD’s Motion for Interim Order;

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and 2) granted another extension for supplemental briefs on the DWSD’s requests for relief as to
two Charter provisions (Section 7.5-208 and 7.5-209 of the Detroit City Charter) and requests
relating to the scope of the Court’s injunction as to MERC.
On January 4, 2013, the DWSD filed its supplemental brief on these outstanding
requests. On January 18, 2013, the City filed a supplemental brief objecting to the DWSD’s
requests relating to two Charter provisions. On January 25, 2013, the DWSD filed a
supplemental reply brief. No other briefs relating to the remaining requests for relief have been
filed and the time permitted for doing so has expired.
ANALYSIS
I.

The Court Shall Deny The DWSD’s Requested Relief As To MERC But Shall
Nevertheless Clarify The Narrow Scope Of Its Injunction As To MERC And The
Wayne County Circuit Court.
This Court’s November 4, 2011, Order enjoined MERC and the Wayne County Circuit

Court from “exercising jurisdiction over disputes arising from the changes ordered by this Court.
The Court also enjoins the unions from filing any grievances, unfair labor practices, or
arbitration demands over disputes arising from the changes ordered by this Court.” (D.E. No.
2410 at 7).
As this Court later realized, however, the above language left the parties and MERC
unsure as to the scope of that injunction.
This Court’s August 23, 2012, Order later clarified that: 1) Paragraph 3 on Page 6 of this
Court’s November 4, 2011, Order was intended to, and shall be construed as, ordering the
severance of DWSD employees from existing bargaining units that are comprised of both
DWSD and non-DWSD employees, thereby establishing separate DWSD bargaining units that
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cover only DWSD employees; and 2) MERC is not enjoined from ruling on clarification
petitions, in order to effectuate the above severancing ordered by this Court. (D.E. No. 2470 at
3).
The DWSD’s September 24, 2012, Motion for Clarification asked the Court to further
address issues relating to the jurisdiction of MERC.
This Court’s October 5, 2012, Opinion & Order recognized that further clarification of
the scope of its injunction as it relates to MERC is needed:
Although unintended, it is now apparent that this Court’s November 4th Order
does not provide MERC with sufficient direction as to the scope of its jurisdiction
over petitions filed relating to the DWSD. The Court agrees that clarification by this
Court is needed.
(D.E. No. 2489 at 37). The Court allowed the parties to file supplemental briefs on the issue.
The DWSD’s supplemental brief states that “MERC presently has before it requests (1)
from AFSCME for mediation and (2) from both the Association of Detroit Engineers (‘ADE’)
and the Association of Municipal Engineers (‘AME’) for fact-finding related to the current round
of negotiations” for new union contracts following this Court’s November 4, 2011, Order.
(DWSD’s Supp. Br. at 5). The DWSD states that the “issues which are unresolved in DWSD’s
eight unsettled bargaining units” concern “wage, health insurance, pension, other fringe benefits
and other terms and conditions of employment.” (Id. at 13).
The DWSD asks the Court to “declare that MERC is prohibited from exercising
jurisdiction over disputes arising from the CBA changes ordered by the Court or, in the
alternative, limit MERC’s exercise of jurisdiction to avoid interference with DWSD’s
implementation of this Court’s Orders.” (Id. at 8).
The Court will address these requests in turn. First, the DWSD asks the Court to declare
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that MERC is “prohibited form exercising jurisdiction over disputes arising from the CBA
changes ordered by the Court.” But so ordering would clarify little, if anything, for the parties or
for MERC.
In its November 4, 2011, Order, this Court ordered the following injunctive relief that
relates to DWSD unions and CBAs:
Specifically, the Court hereby ORDERS that:
1.

The Director of the DWSD, with the input and advice of union leadership,
shall develop a DWSD employee training program, a DWSD employee
assessment program, and a DWSD apprenticeship training program.

2.

Any City of Detroit Executive Orders imposing furlough days upon City
employees shall not apply to DWSD employees.

3.

The DWSD shall act on behalf of the City of Detroit to have its own CBAs
that cover DWSD employees (“DWSD CBAs”). DWSD CBAs shall not
include employees of any other City of Detroit departments. The Director of
the DWSD shall have final authority to approve CBAs for employees of the
DWSD.

4.

The Court hereby strikes and enjoins any provisions in current CBAs that
allow an employee from outside the DWSD to transfer (“bump”) into the
DWSD based on seniority. Future DWSD CBAs shall adopt a seniority
system for the DWSD that does not provide for transfer rights across City of
Detroit Departments (ie., does not provide for “bumping rights” across city
departments).

5.

DWSD management must be able to explore all available means and methods
to achieve compliance with its NPDES permit and the Clean Water Act.
DWSD CBAs shall not prohibit subcontracting or outsourcing and the Court
hereby strikes and enjoins any provisions in current CBAs that prohibit the
DWSD from subcontracting or outsourcing.

6.

DWSD CBAs shall provide that excused hours from DWSD work for union
activities are limited to attending grievance hearings and union negotiations,
with prior notification to DWSD management. The Court strikes and enjoins
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any current CBA provisions to the contrary.
7.

DWSD CBAs shall include a three-year time period pertaining to discipline
actions.

8.

The Director of the DWSD shall perform a review of the current employee
classifications at the DWSD and reduce the number of DWSD employee
classifications to increase workforce flexibility. Future DWSD CBAs shall
include those revised employee classifications.

9.

DWSD CBAs shall provide that promotions in the DWSD shall be at the
discretion of management and based upon skill, knowledge, and ability, and
then taking seniority into account. The Court strikes and enjoins and current
CBA provisions to the contrary.

10.

Past practices on operational issues shall not limit operational changes
initiated by management with respect to DWSD CBAs.

11.

The Court strikes and enjoins any provisions in existing CBAs that prevent
DWSD management from assigning overtime work to employees most
capable of performing the necessary work within a classification, at the
discretion of management. DWSD CBAs shall provide that management has
the discretion to assign overtime work to employees most capable of
performing the necessary work within a classification, at the discretion of
management.

12.

Any existing work rules, written or unwritten, or past practices that are
contrary to these changes are hereby terminated.

13.

The Court enjoins the Wayne County Circuit Court and the Michigan
Employment Relations Commission from exercising jurisdiction over
disputes arising from the changes ordered by this Court. The Court also
enjoins the unions from filing any grievances, unfair labor practices, or
arbitration demands over disputes arising from the changes ordered by this
Court.

(Docket Entry No. 2410 at 6-7).
This Court’s injunction as to MERC (and the Wayne County Circuit Court) was intended
to be quite limited in scope. This Court only intended to enjoin MERC and the Wayne County
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Circuit Court from: 1) ruling that the various items of specific relief relating to CBAs that were
ordered by this Court constitute unfair labor practices; or 2) exercising jurisdiction over any
grievances, unfair labor practice charges, or arbitration demands that are based upon the specific
relief ordered by this Court. This Court did not intend to enjoin MERC from exercising
jurisdiction over every dispute relating to collective bargaining that involves the DWSD. For
example, this Court did not intend to enjoin MERC from exercising jurisdiction over the union
requests that are currently pending before it, which relate to negotiations for new union contracts
and involve disputes over wages, health insurance, fringe benefits, and other conditions of
employment.
Second, the DWSD asserts that unless this Court either enjoins MERC from exercising
jurisdiction over DWSD-related labor disputes altogether, or issues an order creating new
DWSD-specific processes and procedures for MERC to follow, the resolution of labor disputes
by MERC will delay the implementation of this Court’s November 4, 2012 Order.
The Court disagrees. This Court has already ordered the severancing of DWSD
employees from existing bargaining units that are comprised of both DWSD and non-DWSD
employees, thereby establishing separate DWSD bargaining units that cover only DWSD
employees. Those new DWSD-specific units must now negotiate new CBAs. But until they
execute such agreements, this Court has expressly enjoined those few provisions of currentlyexisting CBAs that have been shown to impede compliance with the Clean Water Act and the
DWSD’s NPDES permit. For example, this Court’s November 4, 2011 Order “strikes and
enjoins any provisions in current CBAs that allow an employee from outside the DWSD to
transfer (‘bump’) into the DWSD based on seniority” and “strikes and enjoins any provisions in

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current CBAs that prohibit the DWSD from subcontracting or outsourcing.” (D.E. No. 2410 at
6, ¶¶ 4 & 5). Thus, MERC exercising jurisdiction over disputes relating to negotiations for new
union contracts, which involve disputes over issues such as wages and health insurance, will not
impede this Court’s November 4, 2011 Order as it relates to the specific CBA provisions and
work rules that this Court found to be impeding the DWSD from achieving and maintaining
compliance with its NPDES permit and the Clean Water Act.
Accordingly, this Court will now clarify the limited scope of its injunction as to MERC
and the Wayne County Circuit Court. To the extent that the DWSD asks the Court for a broader
injunction, or an order creating new DWSD-specific processes and procedures for MERC to
follow, those requests shall be denied.
II.

The Court Shall Deny The DWSD’s Requests Relating To Two Specific Charter
Provisions.
In its September 24, 2012, Motion for Clarification, the DWSD asked the Court to clarify

or declare that “Sections 7.5-208 and 7.5-209 of the Detroit City Charter regarding intragovernmental disputes and enforcement of the Charter shall not apply to issues related to DWSD
and the implementation of and applicability of this Court’s Orders.” (DWSD’s Motion at 7).
The DWSD’s motion, however, did not discuss the substance of either of the above Charter
provisions, nor did it sufficiently explain how the DWSD believes that those provisions are
impeding the DWSD from complying with its NPDES Permit, the Clean Water Act, the current
ACO with the MDEQ, or this Court’s orders. In addition, it was unclear to this Court as to the
precise relief that the DWSD is requesting as to these two Charter provisions. This Court,
therefore, ordered that DWSD and other parties could file supplemental brief relating to these
requests.
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The DWSD filed its supplemental brief on January 4, 2013. On January 18, 2013, the
City filed its supplemental brief, wherein it objects to both requests. On January 25, 2013, the
DWSD filed a supplemental reply brief.
Having reviewed the DWSD’s supplemental briefs, and the City’s objections, the Court
is not convinced that the two Charter provisions at issue are impeding the DWSD from
complying with its NPDES Permit, the Clean Water Act, the current ACO with the MDEQ, or
this Court’s orders. As such, the Court shall DENY the DWSD’s requests relating to Sections
7.5-208 and 7.5-209 of the Detroit City Charter.
CONCLUSION & ORDER
IT IS ORDERED that the Court hereby CLARIFIES the limited scope of the injunction
imposed relating to MERC and the Wayne County Circuit Court. This Court is only enjoining
MERC and the Wayne County Circuit Court from: 1) ruling that the various items of specific
relief relating to CBAs that were ordered by this Court constitute unfair labor practices; or 2)
exercising jurisdiction over any grievances, unfair labor practice charges, or arbitration demands
that are based upon the specific relief ordered by this Court.
Accordingly, the Court now ORDERS that it SHALL NOT constitute an unfair labor
practice for the DWSD:
1)

to take actions to develop a DWSD employee training program, a DWSD
employee assessment program, or a DWSD apprenticeship training program;

2)

to not apply any City of Detroit Executive Orders imposing furlough days to
DWSD employees;

3)

to act on behalf of the City of Detroit to have its own CBAs that cover only
DWSD employees;

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4)

to prohibit or prevent a City of Detroit employee from outside the DWSD to
transfer (“bump”) into the DWSD based on seniority;

5)

to adopt a seniority system for the DWSD that does not provide for transfer
rights across City of Detroit Departments (ie., does not provide for “bumping
rights” across city departments);

6)

to require or, demand during contract negotiations, that DWSD CBA’s do not
contain any provisions that prohibit subcontracting or outsourcing;

7)

to limit excused hours from DWSD work to attending grievance hearings and
union negotiations, with prior notification to DWSD management;

8)

to require or, demand during contract negotiations, that DWSD CBAs limit
excused hours from DWSD work for union activities to attending grievance
hearings and union negotiations, with prior notification to DWSD
management;

9)

to consider a three-year time period when considering employee discipline
actions;

10)

to require or, demand during contract negotiations, that DWSD CBAs
include a three-year time period pertaining to discipline actions;

11)

to perform a review of current employee classifications at the DWSD and
reduce the number of DWSD employee classifications;

12)

to require or, demand during contract negotiations, that DWSD CBAs
include those revised and reduced employee classifications;

13)

to promote DWSD employees based upon skill, knowledge, and ability, and
then taking seniority into account;

14)

to require or, demand during contract negotiations, that DWSD CBAs
contain provisions stating that DWSD employees shall be promoted based
upon skill, knowledge, and ability, and then taking seniority into account;

15)

to assign overtime work to employees most capable of performing necessary
work within a classification; or

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16)

to require or, demand during contract negotiations, that DWSD CBAs
contain provisions stating that DWSD shall assign overtime work to
employees most capable of performing necessary work within a
classification.

The Court FURTHER ORDERS that both MERC and the Wayne County Circuit Court
are ENJOINED from exercising jurisdiction over any grievances, unfair labor practice charges,
or arbitration demands that are based upon:
1)

the development of a new DWSD employee training program, DWSD
employee assessment program, or DWSD apprenticeship training program;

2)

DWSD employees being exempted or excluded from any City of Detroit
Executive Orders imposing furlough days upon City of Detroit employees;

3)

actions of the DWSD to have its own CBAs that cover only DWSD employees;

4)

the prohibition of any City of Detroit employee from outside the DWSD from
transferring (“bumping”) into the DWSD based on seniority;

5)

the adoption or application of a seniority system for the DWSD that does not
provide for transfer rights across City of Detroit Departments (ie., does not
provide for “bumping rights” across city departments);

6)

contract negotiation statements or demands that DWSD CBAs do not contain
any provisions that prohibit subcontracting or outsourcing;

7)

the DWSD limiting excused hours from DWSD work to attending grievance
hearings and union negotiations, with prior notification to DWSD
management;

8)

contract negotiation statements or demands that DWSD CBAs limit excused
hours from DWSD work for union activities to attending grievance hearings
and union negotiations, with prior notification to DWSD management;

9)

application of a three-year time period when considering employee discipline
actions for DWSD employees;

10)

contract negotiation statements or demands that DWSD CBAs include a
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three-year time period pertaining to discipline actions for DWSD employees;
11)

the DWSD’s court-ordered review and reduction of current employee
classifications;

12)

contract negotiation statements or demands that DWSD CBAs include those
court-ordered revised and reduced employee classifications;

13)

contract negotiation statements or demands that DWSD CBAs contain
provisions stating that DWSD employees shall be promoted based upon skill,
knowledge, and ability, and then taking seniority into account; and

14)

contract negotiation statements or demands that DWSD CBAs contain
provisions stating that DWSD shall assign overtime work to employees most
capable of performing necessary work within a classification.

IT IS FURTHER ORDERED That, to the extent that the DWSD asks the Court for
additional injunctive relief, or for a broader injunction, those requests are DENIED.
IT IS FURTHER ORDERED that, with respect to the DWSD’s requests for relief as to
two Charter Provisions (Sections 7.5-208 and 7.5-209 of the Detroit City Charter), those requests
are DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 30, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 30, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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