
    WELFARE EMPLOYEES UNION v. CIVIL SERVICE COMMISSION
    1. Administrative Law and Procedure — Exhaustion op Remedies.
    A plaintiff is ordinarily required to exhaust all available administrative remedies before seeking court relief; however, the law does not require a plaintiff to exhaust administrative remedies under any and all circumstances.
    2. Administrative Law and Procedure — Exhaustion op Remedies —Useless Act.
    Exhaustion of administrative remedies before seeking relief in the courts is not required where it is obvious that to demand exhaustion would be to require a useless effort.
    References por Points in Headnotes
    
       2 Am Jur 2d, Administrative Law § 595 et seq.
    
    
       2 Am Jur 2d, Administrative Law § 605.
    
       5 Am Jur 2d, Appeal and Error § 839 et seq.
    
    
       22 Am Jur 2d, Declaratory Judgments § 10.
    
       4 Am Jur 2d, Appeal and Error § 119.
    
       48 Am Jur 2d, Labor and Labor Relations § 1191 et seq.
    
    
       48 Am Jur 2d, Labor and Labor Relations § 1156.
    
      3. Appeal and Error — -Declaratory Judgment — -Findings of Fact • — Standard of Review.
    Findings of fact made in conjunction with a declaratory judgment action will not be reversed unless clearly erroneous.
    4. Administrative Law — Exhaustion of Remedies — Civil Service Commission.
    Plaintiff union was not required to exhaust its administrative remedies before seeking a declaratory judgment as to whether it had the right to bargain collectively with the Civil Service Commission where the administrative remedy provided was an appeal to the Civil Service Commission and the Civil Service Commission had already determined that it was not required nor empowered to negotiate with the plaintiff.
    5. Declaratory Judgment — Actual Controversy.
    Actual controversy is a condition precedent to the invocation of declaratory relief (GCR 1963, 521.1).
    6. Declaratory Judgment — Appeal and Error — De Novo Review.
    A review of a declaratory judgment proceeding is de novo.
    
    7. Declaratory Judgment — Actual Controversy — Existence.
    Actual controversy in an action for declaratory relief exists where a declaratory judgment or decree is necessary to guide the plaintiff’s future conduct in order to preserve his legal rights.
    8. Declaratory Judgment — Actual Controversy — Labor Relations — Collective Bargaining.
    Actual controversy existed in plaintiff’s action for declaratory relief where the legal right at issue was the plaintiff’s right to bargain collectively with the defendants and the defendants denied the plaintiff’s right to bargain with them.
    9. Labor Relations — Civil Service Commission — Powers—Constitutional Law.
    The Civil Service Commission has, by constitution, supreme power over its employees; the legislature is constitutionally precluded from enacting laws providing for the resolution of disputes concerning public employees in the state classified civil service (Const 1963, art 4, §48; art 11, §5).
    10. Statutes — Labor Relations — Public Employees Relations Act —Scope—Classified Civil Service.
    The public employees relations act is not applicable to state employees in the state classified civil service.
    
      11. Labor Relations — Civil Service Commission — Collective Bargaining.
    Only the Civil Service Commission has the power to provide for grievance procedures for classified civil servants; there is no constitutional right to bargain collectively in the state classified civil service (Const 1963, art 11, § 5).
    12. Constitutional Law — Equal Protection — Governmental Objectives — Arbitrary and Capricious Discrimination.
    The equal protection guarantees of the state and Federal constitutions do not bar all discrimination but only prohibit arbitrary and capricious discrimination which is not reasonably related to legitimate governmental objectives.
    13. Labor Relations — Classified Civil Servants — Collective Bargaining — Constitutional Law — Equal Protection.
    Denying state classified civil servants the right to bargain collectively with the Civil Service Commission while other public employees have been given, by legislation, the right to bargain collectively with their employer does not constitute a denial of equal protection, because the legislature deemed it is necessary that the Civil Service Commission retain full control over state classified civil service employees in an attempt to reduce political patronage (Const 1963, art 11, § 5; MCLA § 423.201).
    Appeal from Wayne, Thomas Roumell, J. Submitted Division 1 June 10,1970, at Detroit.
    (Docket No. 9,025.)
    Decided December 2, 1970.
    Leave to appeal denied April 8, 1971.
    384 Mich 824.
    Complaint by Welfare Employees Union against the State Civil Service Commission, the State Department of Social Services, its Director, the Director of the Wayne County Department of Social Services, and the Attorney General, for a declaratory judgment as to its right to bargain collectively with the Civil Service Commission. Judgment for plaintiff. Defendants appeal.
    Affirmed in part, amended in part, and remanded.
    
      Philo, Maki, Ravits, Glotta, Adelman, Cockrel é Robb, for plaintiff.
    
      
      MacLean, Seaman, Laing é Guilford, for defendant Civil Service Commission.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Maxine Boord Virtue and Milton I. Firestone and William R. Rudell, Assistant Attorneys General, for the other defendants.
    Before: Holbrook, P. J., and R. B. Burns and O’Hara, JJ.
    
      
       Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   R. B. Burns, J.

Plaintiff union, pursuant to GCR 1963, 521, sought declaratory relief in the Wayne County Circuit Court. Plaintiff represents certain employees of the Wayne County Department of Social Services, a sub-unit of the Michigan Department of Social Services. The circuit judge determined that the state Department of Social Services had embarked upon a plan of reorganization which would affect the wages, hours of work, and working conditions of employees represented by plaintiff. It was also determined that various negotiation requests by plaintiff had been rejected and that “the Department of Social Services and the Civil Service Commission have concluded that under the Michigan statutes they are not required to, and in fact are not empowered to, negotiate with plaintiff union * * * as regards wages, hours of work, and other working conditions”.

In essence the plaintiff’s complaint for declaratory judgment seeks an answer as to whether the union has the right to collectively bargain with the Civil Service Commission regarding the effect of the reorganization plan on working conditions. The lower court entered the following declaratory judgment:

“A. Michigan’s public employment relations act of 1965 is not applicable to state employees in the classified service of the state under the jurisdiction of the Michigan Civil Service Commission for any of the legal processes, provisions, and administrative remedies which that act provides to all other public employees.
“B. Employees of the state classified service under the jurisdiction of the Michigan Civil Service Commission have the right to collectively bargain with their employer as pertains to wages, hours of work, and other conditions of employment, but such collective bargaining must be conducted pursuant to and within the ambit of authority contained in Article 11 of the 1963 state constitution and as such authority and responsibility has been specifically given and assigned to the Michigan Civil Service Commission for administration and implementation.
“C. That the plaintiff herein and its membership in seeking to pursue their grievances with the defendants in the area of concern described in the pleadings, must do so pursuant to the grievance procedures and other related plans as have been established and as are presently current with both the appointing authority of the employees herein involved, but more particularly with such grievance procedures and related plans for effectuating negotiations as have been established and promulgated by the Michigan Civil Service Commission for the resolution of such matters as are the basis for this complaint.”

The trial court enjoined the reorganization procedure during the pendency of this appeal.

The defendants’ claims of error are as follow:

I.

Defendants claim their motion for dismissal or for summary judgment should have been granted because:

(A) Plaintiff failed to exhaust its administrative remedies which prevented the trial court from taking jurisdiction; or

(B) No actual controversy exists on the record since defendants were denied their right to file an answer.

(A)

The members of the plaintiff union are in the classified civil service and thus subject to regulation by the state Civil Service Commission. Const 1963, art 11, § 5. The defendants argue that Article 11, § 5 of the Michigan constitution provides plaintiff a remedy by appeal to the Civil Service Commission and that the state Department of Civil Service has set up a system of conferences to implement this remedy.

Michigan law ordinarily requires a plaintiff to exhaust all available administrative remedies prior to seeking court relief. Plec v. Liquor Control Com mission (1948), 322 Mich 691; Nelles v. Superintendent of Public Instruction (1966), 5 Mich App 47. However, the law does not require one to exhaust administrative remedies under any and all circumstances. The law does not impose the exhaustion rule where it is obvious that to do so would require a useless effort.

“The law will not require a citizen to undertake a vain and useless act. The law does not require useless expenditures of effort.” Trojan v. Township of Taylor (1958), 352 Mich 636, 639. Followed in Sterling Secret Service, Inc., v. Department of State Police (1969), 20 Mich App 502.

The trial judge has determined that plaintiff’s attempts at seeking its administrative remedy with the Civil Service Commission has been in vain. In fact, the defendants have previously concluded that they were not required nor empowered to negotiate with the plaintiff concerning the reorganization plan. This Court will not reverse findings of fact made in conjunction with a declaratory judgment action unless clearly erroneous. McComb v. McComb (1967), 9 Mich App 70. The pleadings support the trial court’s findings. This Court also notes the provisions of GCR 1963, 521.1 and 521.3 which provide that the existence of other available remedies does not preclude declaratory relief in cases where it is appropriate. This is an appropriate case.

(B)

“Actual controversy” is a condition precedent to invocation of declaratory relief under GCR 1963, 521.1. Corporation & Securities Commission v. American Motors Corporation (1966), 4 Mich App 65. Defendants contend that actual controversy was absent in this case because they were denied the right to answer the complaint. The record fails to disclose any such denial. GCR 1963, 117.4 requires the court to fix the time for further pleading subsequent to a denial of summary judgment “if any is necessary”. An answer was not necessary in this case. The defendants did not object to the statement of facts made by the trial judge. Nor did defendants request the right to file an answer when the trial judge asked if there was any reason why a declaratory judgment should not he issued. The record discloses that much of the lower court proceedings were conducted with informality and that certain agreements were undoubtedly reached as to issues and facts during informal conferences. This informality plus the defendants’ acquiescence as to the lower court proceedings persuades this Court that the defendants had dispensed with the necessity of filing an answer.

Since review of a declaratory judgment proceeding is de novo, McComb v. McComb, supra, this Court will review the entire record in determining whether the actual controversy prerequisite to declaratory relief existed at trial level.

Actual controversy exists where a declaratory judgment or decree is necessary to guide plaintiff’s future conduct in order to preserve its legal rights. Updegraff v. Attorney General (1941), 298 Mich 48; Sterling Secret Service, Inc. v. Department of State Police, supra. The right to collectively bargain was the legal right at issue in the declaratory action filed by the plaintiff. The determination of this right was necessary to guide the plaintiff in its future relations with the defendants. For example, if this alleged right was found to he rooted in the public employees’ relation act of 1965 (MCLA § 423.201, et seq. [Stat Ann 1968 Rev § 17.455, et seq.]) the plaintiff would be entitled to the rights and remedies against unfair labor practices contained in the act.

The defendants took a position adverse to that of the plaintiff and rejected negotiation attempts. Actual controversy existed.

II.

Defendants claim the declaratory judgment entered by the trial court is not a clear and accurate statement of the rights of the parties.

Part A of the declaratory judgment states that the public employees’ relation act is not applicable to state employees in the state classified civil service. We agree. The Michigan constitution of 1963 clearly gives the Civil Service Commission supreme power over its employees. In fact, the legislature is constitutionally precluded from enacting laws providing for the resolution of disputes concerning public employees in the classified service. Const 1963, art 4, § 48. The constitutional supremacy of the Michigan Civil Service Commission with respect to state employees in the classified civil service has been consistently recognized by the Michigan Supreme Court. Reed v. Civil Service Commission (1942), 301 Mich 137; Civil Service Commission v. Auditor General (1942), 302 Mich 673; Plec v. Liquor Control Commission, supra. The employees represented by the plaintiff union are members of the state classified service and thus do not fall within the provisions of the public employees’ relation act.

Part B of the declaratory judgment states that employees of the state classified service under the commission’s jurisdiction have the right to collectively bargain with their employer.

The constitution of 1963 does not expressly give public employees the right to collectively bargain. The phrase “right to collectively bargain” in part B of the judgment can he construed as meaning that the various state agencies are obligated to bargain with the union in the same manner as aré public employers who are subject to the Michigan public employees’ relation act of 1965. If the phrase is construed in that manner it is completely inaccurate. The commission controls all conditions of employment and is vested with plenary powers in its sphere of authority. Robinson v. Department of State (1969), 20 Mich App 231. Only the Civil Service Commission has the power to provide for grievance procedures because it alone has the power to “regulate all conditions of employment” in the state classified civil services. Const 1963, art 11, § 5. (Emphasis supplied.)

Part C of the declaratory judgment is an accurate statement of the law. The plaintiff must pursue its grievances according to procedures promulgated by the Civil Service Commission. The plaintiff’s right in this case, which the commission readily acknowledged, is to participate in the conference procedures established by the commission.

Plaintiff asserts that, in light of the legislative grant of the right to bargain given other public employees, to deny it the right to bargain would be discriminatory and in violation of its equal protection rights under both the Michigan and United States Constitutions.

The equal protection guarantees do not bar all discrimination. They prohibit only arbitrary and capricious discrimination which is not reasonably related to legitimate governmental objectives. Fox v. Employment Security Comm. (1967), 379 Mich 579. The right of public employees to bargain with their governmental employer is not a basic constitutional right. The legislature was not constitutionally compelled to enact the public employees’ relation act in 1965; it did so in order to provide a meaningful quid pro quo for anti-strike legislation. The commission provided a similar quid pro quo for civil service employees by establishing conference procedures. The people of Michigan deemed it necessary for the commission to retain full control over state classified civil service employees in an attempt to reduce political patronage. 2 Official Record, Constitutional Convention 1961, p 3377.

This Court bows to the people’s prerogative; the classification is neither arbitrary nor capricious.

The case is remanded for the reasons stated here with the following instructions:

Parts A and C of the declaratory judgment are affirmed. Part B is amended to read as follows:

“B. State classified employees under the jurisdiction of the Civil Service Commission are subject to regulations promulgated by that body including anti-strike provisions. The commission is not required to extend to state classified employees collective bargaining benefits.”

Remanded for further proceedings consistent with this opinion.

All concurred. 
      
       The Michigan Constitution of 1963 provides, at Article 11, § 5, in pertinent part as follows:
      “The [civil service] commission shall * * * regulate all conditions of employment in the classified [civil] service.
      “Any employee considering himself aggrieved by the abolition or creation of a position shall have a right of appeal to the [civil service] commission through established grievance procedures.”
     
      
       A bulletin entitled “State Employee Relations Policy, Amended April 26, 1966” was issued by the state Department of Civil Service to all civil service employees. Rules VI, 1-7 and VIII provide for a grievance procedure by conferences with duly recognized employee organizations.
     
      
       MCLA §§423.210, 423.216 (Stat Ann 1968 Rev §§ 17.455[10], 17.455[16]).
     
      
       The Civil Service Commission derives its authority from Article 11, § 5 of the constitution of 1963 which reads in part as follows:
      “The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment m the classified service.” (Emphasis supplied.)
     
      
       “The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” (Emphasis supplied.)
     
      
       “The director, employees and assistants of the county department shall be appointed by the state department * * * from among persons certified as qualified by the state Civil Service Commission * * * .” MCLA § 400.45 (Stat Ann 1968 Rev § 16.445).
     
      
       Civil Serviee Commission Rule XIV prohibits employee strikes by threat of suspension or dismissal. Non-elassified public employees are also prohibited from striking:
      “No person holding a position * * * in the government of the State of Michigan * * * shall strike.” MCLA § 423.202 (Stat Ann 1968 Rev § 17.455[2]).
     