DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS

EMPLOYMENT RELATIONS COMMISSION

ADMINISTRATION OF COMPULSORY ARBITRATION ACT FOR LABOR

DISPUTES IN MUNICIPAL POLICE AND FIRE DEPARTMENTS

(By authority conferred on the employment relations commission by section 7 of 1939 PA

176, and section 33 of 1969 PA 306, MCL 423.7 and 24.233, and Executive Reorganization

Order Nos. 2011-4 and 2011-5, MCL 445.2030 and 445.2031)

R 423.501 Definitions; A to D.

Rule 1. As used in these rules:

(a) "Act 312" means1969 PA 312, MCL 423.231to 423.247.

(b) "Advocate" means an individual who has represented management or a union in

collective bargaining or labor relations in the 5 years prior to his or her selection by the

commission as a nominee for an impartial arbitrator or chair of an arbitration hearing panel

pursuant to Section 5(1) of 1969 PA 312, MCL 423.235(1). Advocate also means an

individual, including an attorney, who is associated with a firm or entity that has

represented management or a union in collective bargaining or labor relations in the 5 years

prior to his or her selection by the commission as a nominee for an impartial arbitrator or

chair of an arbitration hearing panel pursuant to section 5(1) of 1969 PA 312, MCL

423.235(1).

(c) "Arbitration hearing panel" means the impartial arbitrator or chair and 2 delegates

who conduct an act 312 arbitration hearing.

(d) "Arbitrator" means an individual who is appointed by the commission to the Michigan

employment relations commission panel of arbitrators to be an impartial arbitrator or chair

of the arbitration panel in an act 312 arbitration hearing.

(e) "Commission” means the employment relations commission as established in section

3 of the LMA.

(f) "Commission's panel of arbitrators” means those members who are appointed to the

Michigan employment relations commission panel of arbitrators by the commission.

(g) "Delegate" means an employee or employer representative who sits on the act 312

arbitration hearing panel.

(h) "Dispute" means a disagreement regarding mandatory subjects of bargaining

concerning rates of pay, wages, hours of employment, or other conditions of employment.

History: 1995 AACS; 2014 AACS.

R 423.502 Definitions; L to P.

Rule 2. As used in these rules:

(a) "LMA" means 1939 PA 176, MCL 423.1 to 423.30.

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(b) "Mediator" means the commission, a commission member, or an employee who is

designated by the commission to perform the functions and duties of mediation pursuant

to act 312, LMA, and PERA in the commission's mediation division.

(c) "PERA" means 1947 PA 336, MCL 423.201 to 423.217.

(d) "Petition” means the document that contains the information specified in R 423.505.

(e) "Petitioner" means a person or duly authorized agent thereof who files a petition

pursuant to the provisions of act 312 for compulsory arbitration.

(f) “Representative” means a person, who may or may not be an attorney, who represents

a party in an act 312 proceeding.

History: 1995 AACS; 2014 AACS.

R 423.503 Mediation.

Rule 3. (1) It is the policy of the commission to encourage parties to a labor dispute to

settle their disputes through the collective bargaining process subject to section 30 of 1939

PA 176, MCL 423.30, and section 15 of 1947 PA 336, MCL 423.215. If the issues in

dispute cannot be resolved through the collective bargaining process, then either party may

request, or the commission may initiate, mediation.

(2) Upon the request of 1 of the parties to the dispute, or upon its own initiative, the

commission shall appoint a mediator.

(3) The mediator may do any of the following:

(a) Arrange for, hold, adjourn, or reconvene a conference or conferences between the

disputants or any of their representatives, or both.

(b) Direct the disputants or their representatives, or both, to attend the conference and

submit, either orally or in writing, their disputes.

(c) Discuss the disputes with the disputants or their representatives.

(d) Assist in negotiating and drafting agreements for the adjustment or settlement of the

disputes.

(4) A mediator shall be subject to the confidentiality requirements imposed by the

provisions of 1939 PA 176, MCL 423.1 to 423.30, and 1947 PA 336, MCL 423.201 to

423.217.

History: 1995 AACS; 2014 AACS.

R 423.504 Mediator’s report to commission.

Rule 4. If binding arbitration proceedings are initiated, the mediator shall submit a written

mediation report to the commission. The report shall include the following information:

(a) The date of the first mediation conference convened with the parties to the dispute

and the number of dates and times of subsequent bargaining sessions and mediation

conferences held.

(b) A recommendation to the commission as to whether it would be useful or beneficial

to remand the dispute to the parties for further collective bargaining.

History: 1995 AACS; 2014 AACS.

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R 423.505 Petition to initiate compulsory arbitration.

Rule 5. (1) The petition shall be prepared on a form furnished by the commission. The

original shall be signed and served on the other party. At the same time, 3 copies, along

with a proof of service, shall be filed with the commission.

(2) The petition shall include all of the following:

(a) The name and address of the public employer involved and the name, fax number,

email address, and telephone number of its principal representative.

(b) The name and address of the collective bargaining representative involved and the

name, fax number, email address, and telephone number of its principal representative.

(c) The name and address of the petitioner and the signature, fax number, email address,

and telephone number of the person executing the petition.

(d) Date of the first mediation conference convened with the parties to the dispute.

(3) A petition may be dismissed administratively if not filed in accordance with these

rules, or if filed before 30 calendar days have passed since the dispute was submitted to

mediation as evidenced by the date of the first scheduled mediation conference.

History: 1995 AACS; 2014 AACS.

R 423.506 Arbitrator selection.

Rule 6. (1) If a commission-nominated panel member is an advocate as defined in R

423.501(b), either party may notify the other party and may request that the commission

delete the panel member’s name from the list of nominees. The commission shall provide

the parties with a replacement name of an arbitrator who is not an advocate. The request

will extend the time limits in section 5(1) of act 312, MCL 423.235(1), by whatever

reasonable time is necessary for the commission to provide the parties with another

nominee and resume. If an arbitrator is not selected within 10 days, the commission may

select an arbitrator.

(2) Prior to an appointment by the commission, the parties may mutually agree upon the

selection of an arbitrator from the commission's panel of arbitrators or an arbitrator who is

eligible for membership on that panel and notify the commission of their selection.

(3) An arbitrator's resume shall include all the following information:

(a) A brief summary of the arbitrator's educational and professional background.

(b) A list of the arbitrator's past 5 years of employment and an accurate statement of

whether the arbitrator is an “advocate” as defined in R 423.501(b).

(c) A list of the arbitrator's commission arbitration awards and fact finding reports.

(d) A list that shows the percentage of advocacy work, if any, which was performed by

the arbitrator and the arbitrator's firm or other entity with which the arbitrator has been

associated on an annual basis for the past 5 years.

(4) The panel member shall ensure that information contained in the arbitrator’s resume

is current, including whether the panel member is an “advocate” as defined in R

423.501(b).

History: 1995 AACS; 2014 AACS.

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R 423.507 Arbitration hearing.

Rule 7. (1) An arbitrator shall begin the hearing by conducting a scheduling conference

within 15 days of the arbitrator's appointment. The scheduling conference may be

conducted by telephone conference call. A court reporter need not be present at the

scheduling conference.

(2) The scheduling conference shall be used to discuss matters relating to the proceeding,

including all of the following:

(a) Issues raised in the petition for binding arbitration submitted to the commission.

(b) Issues that the parties have resolved.

(c) Whether the issues in dispute are economic or noneconomic.

(d) The dates, times, place, and manner for all of the following:

(i) Exchange of a list of comparable communities to be used under sections 9(d)(i) and

9(d)(ii) of 1969 PA 312, MCL 423.239(1)(d)(i) and MCL 423.239(1)(d)(ii).

(ii) Exchange of applicable collective bargaining agreements or tentative agreements, or

both, and applicable documents, if the collective bargaining agreement has not been

completed and executed, for all comparable communities not listed by the opposing party.

(iii) The procedure and hearing dates for the determination of issues in subrule 3(a) and

(b) of this rule.

(iv) The start of the evidentiary hearing unless that date will be established under subrule

3(d) of this rule.

(e) The exhibits to be entered into evidence, the method to be used for marking the

exhibits, the number of copies of exhibits to be provided by the parties, and the dates and

means of exchanging exhibits before hearing.

(f) The list of witnesses, including experts, to be presented by each party.

(g) The list of comparables for purposes of wages and benefits.

(h) The procedural format for the hearing.

(i) Any subpoenas, stipulations, or depositions.

(j) Whether oral arguments or written briefs are to be submitted.

(k) Other matters the panel considers appropriate.

(3) The arbitrator shall do all of the following:

(a) Make a determination on the economic issues in dispute and the duration of the

collective bargaining agreement, and require each party to exchange and submit all of the

following:

(i) A statement of the party’s issues setting forth the specific changes in the collective

bargaining agreement proposed by the party.

(ii) The party’s position as to whether each issue is economic or non-economic.

(iii) The proposed duration of the collective bargaining agreement.

(b) Absent mutual agreement, conduct a procedural hearing and advise the parties in

writing of the arbitration panel’s decision on the issues in dispute including the duration of

the collective bargaining agreement, jurisdiction of the arbitration panel concerning any

disputed issue and, if in dispute, whether an issue presented by a party is economic.

(c) Direct each party to submit to the arbitration panel and to each other its last offer of

settlement on each economic issue by either of the following:

(i) On a date certain after the close of the scheduling conference but prior to the first day

of the evidentiary hearing.

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(ii) If a procedural hearing has been scheduled, after the submission of the arbitration

panel’s decision on the procedural issues. Once submitted, a party may withdraw, but not

otherwise modify, any economic issue submitted in its last offer of settlement except by

stipulation of the parties.

(d) Establish the start date of the evidentiary hearing, if a procedural hearing was held

under subrule 3(b) of this rule.

(4) The record shall be the official record of the evidentiary hearing. Before the first day

of the evidentiary hearing, the arbitrator shall give reasonable notice, in writing, to the

commission's court reporting supervisor of the dates, times, and locations of the evidentiary

hearings. A court reporter shall be assigned by the commission or designee. If the hearing

date is canceled or changed, the arbitrator shall notify the commission's court reporting

supervisor immediately. If a transcript of the hearing is made and a party asserts that the

transcript is incorrect, then the transcript may be corrected if the errors are substantive.

Proposed corrections may be submitted by stipulation or motion to the arbitrator with

notice to the other party. After notice and an opportunity to submit statements in opposition

by the other party, the arbitrator shall rule on whether the transcript will be corrected.

(5) The cost of the hearing transcript shall be paid by the party or parties requesting the

transcript. The cost of a hearing transcript for the benefit of the panel chair shall be divided

equally among the parties.

(6) On written application of either party, the panel may issue subpoenas requiring

attendance and testimony of witnesses and the production of any evidence, including

books, records, correspondence, or documents, in their possession or under their control

which the panel considers material to a just determination of the issues in dispute.

Witnesses who are subpoenaed before the arbitration panel shall be paid the same fees and

mileage that are paid to witnesses in the circuit courts. Payment shall be made by the party

who requested that the witness appear and shall be made before the time that the witness

testifies. An application for a subpoena may be made ex parte.

(7) With the exception of motions that are stated orally on the record at a hearing, all

motions shall be made in writing, served on the other party, and shall briefly state the order,

ruling, or action that is sought and shall set forth, with particularity, the reasons for such

motion. Any party may, by motion, request that the arbitrator take any action which the

arbitrator is authorized to take. Any statement opposing a motion shall be promptly filed

and shall conform to the requirements of this subrule. The arbitrator shall rule upon motions

that are filed with the arbitrator before the close of the hearing. Motions that are made

during a hearing shall be ruled on by the arbitrator either during the hearing or at such time

as the entire record is considered. All rulings on motions shall be in writing or, if announced

at the hearing, may be stated orally on the record. All motions and any rulings or orders

thereon shall become part of the record.

(8) A party shall request the permission of the arbitrator before deposing a person on oral

examination. The sole purpose for taking a deposition shall be to preserve evidence.

Depositions shall not be taken for the purpose of discovery. Before deposing a person on

oral examination, a party shall give reasonable notice, in writing, to the arbitrator and to

the other party. The notice shall state all of the following information:

(a) The date, time, and place for taking the deposition.

(b) The name and address of each person to be examined.

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(c) If a subpoena has been served and directs the deponent to produce documents or other

tangible things, then the designation of the material to be produced, as set forth in the

subpoena, shall be attached to, or included in, the notice.

(9) The arbitrator may extend or shorten the time for taking a deposition. The arbitrator

shall regulate the scope, time, and order of taking depositions to best serve the convenience

of the parties and the witnesses and to expedite the arbitration.

(10) Testimony shall be taken by a court reporter. The examination and cross-examination

of a witness shall be allowed. The technical rules of evidence shall not apply. All objections

that are made at the deposition shall be noted on the record by the party who makes the

objections, including objections to any of the following:

(a) The manner of taking the deposition.

(b) The evidence presented.

(c) The conduct of the party.

(11) On request of a party, documents and things that are produced for inspection during

the examination of a witness shall be marked for identification and annexed to the

deposition, if practicable, and may be inspected and copied by either party.

History: 1995 AACS; 2014 AACS.

R 423.508 Witness examination.

Rule 8. A witness at the hearing shall be examined orally under oath or affirmation

administered by the court reporter.

History: 1995 AACS.

R 423.509 Arbitrator; powers and duties.

Rule 9. (1) In addition to the duties specified in act 312, the panel shall do all of the

following:

(a) Obtain a full and complete record.

(b) Place on the record or state in the award all agreements that are reached between the

parties, including portions of any previous labor agreement that the parties adopt as part of

their current agreement. The award or record shall contain or identify, by specific

reference, the parties' stipulated settlement of all issues that were not presented for

arbitration and indicate how the issues were resolved.

(c) If the parties agree to a hearing extension, the arbitrator shall reduce the agreement to

writing, obtain the signatures of both parties, and notify the commission, in writing, with

copies, of all written agreements between the parties that extend the arbitration hearing.

Except as permitted under section 7a of act 312, MCL 423.237a, the hearing which includes

the filing of any posthearing briefs shall not extend beyond 180 days from the start of the

scheduling conference.

(d) After a hearing is closed, the hearing may be reopened for good cause shown.

(2) In addition to the powers specified in act 312, the panel may do any of the following:

(a) Rule upon motions and offers of proof, receive relevant evidence, and exclude

irrelevant, immaterial, or unduly repetitious evidence.

(b) Question witnesses.

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(c) Take depositions or cause depositions to be taken and determine the scope of

depositions.

(d) Regulate the date, time, place, and course of the hearings.

(e) Dispose of procedural requests or other similar matters.

(f) Hold conferences during the course of the hearing for the settlement, simplification,

or adjustment of the issues by consent of the parties.

(g) Remand the parties to further bargaining with a mediator for a period not to exceed

3 weeks pursuant to section 7a of act 312, MCL 423.237a, if the arbitrator believes it will

be conducive to an agreement.

(h) Charge a fee to a party or parties who cancel a hearing date if a cancellation fee is

clearly set forth in the arbitrator’s resume and made known to the parties at or prior to the

scheduling conference.

History: 1995 AACS; 2014 AACS.

R 423.510 Rescinded.

History: 1995 AACS; 2014 AACS.

R 423.511 Filing of posthearing briefs and proposed findings.

Rule 11. Any party may, upon a request made before the close of the evidentiary hearing,

file a posthearing brief or proposed findings and conclusions, or both, at a time fixed by

the arbitrator who conducts the hearing. The arbitrator may direct the filing of briefs when

considered warranted. The filing of a posthearing brief shall not extend the hearing timeline

beyond 180 days from the start of the scheduling conference.

History: 1995 AACS; 2014 AACS.

R 423.512 Arbitration panel posthearing conference.

Rule 12. After the close of the hearing and before the rendering of an award, a posthearing

conference shall be held at the request of either delegate or the arbitrator. The posthearing

conference shall be limited to the delegate of each party and the arbitrator. Any and all

matters that have been placed into the record of the hearing may be discussed. The

posthearing conference shall not delay the time period specified in section 6 of act 312,

MCL 423.235, for making findings of fact, promulgating a written opinion and order, and

mailing copies.

History: 1995 AACS; 2014 AACS.

R 423.513 Panel findings, opinion, and award.

Rule 13. (1) The impartial arbitrator shall ensure that the final award is subscribed to by

a majority of the arbitration hearing panel.

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(2) The arbitrator shall notify the parties in writing or via email of an extension of up to

60 additional days for issuance of an award.

(3) The written decision and award of the panel shall contain all of the following

information:

(a) The names of both parties.

(b) The advocates for both parties.

(c) The names of the members of the arbitration hearing panel.

(d) Each party's final offer of settlement of the issues in dispute.

(e) A list of the economic and noneconomic issues in dispute as identified by the

arbitration hearing panel.

(f) A finding of fact and opinion based on the record made before the arbitration hearing

panel. The finding of fact and opinion shall include a detailed discussion of the relation of

the criteria specified in section 9 of act 312 to both the economic and noneconomic issues.

(g) The date the decision is rendered.

(h) The signatures of the panel member or members who approved the award or any of

the issues in the award.

(4) The arbitrator shall serve a copy of the award on each party and send the original and

2 copies of the award, along with an electronic copy of the award, to the commission with

the entire record.

History: 1995 AACS; 2014 AACS.

R 423.514 Costs.

Rule 14. (1) The parties to a hearing may obtain information with regard to the per diem

and other charges of the arbitrator upon filing a request with the commission. An arbitrator

shall not charge more than 2 preparation days for each day of hearing without advance

permission to do so from the commission or its designee.

(2) The costs of subpoenas and witness fees shall be borne by the party at whose request

subpoenas are issued and at whose request witnesses appeared.

(3) A transcript of a deposition may be ordered at the expense of the party who ordered

the transcript. The party who requests a deposition shall pay the costs for the court reporter

and for a copy of the transcript of the deposition for the arbitration hearing panel record.

(4) The costs listed in this rule are in addition to the costs identified elsewhere in these

rules.

History: 1995 AACS; 2014 AACS.

R 423.515 Retention and disposal of commission materials.

Rule 15. All documents, records, non-records and other materials, public and nonpublic,

official and unofficial, shall be maintained and disposed of using the general and bureau

specific retention and disposal schedules pursuant to section 5 of 1913 PA 271, MCL 399.5,

and section 491 of the Michigan penal code, 1931 PA 328, MCL 750.491.

History: 2014 AACS.

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