By Ed Jacques, LEJ Editor
Lake County and the Police Officers Association of Michigan (POAM), representing the Lake County Deputy Sheriff’s Association, began negotiating a new collective bargaining agreement in August 2005, well before its expiration on December 31, 2005. POAM Business Agent Patrick Spidell and local union president Ron Brown reached a tentative agreement with Lake County in May, 2006. The tentative agreement was drafted in the form of a list of changes to the parties 2003-2005 contract. The parties agreed that, except for the agreed-upon changes in seniority provisions, that all language from the previous contract would become part of the new agreement. On July 19, 2006, the Union ratified the tentative agreement and counsel for the County prepared a draft contract for his client on August 10, 2006 that provided the contract was effective January 1, 2006 and would be in full force and effect until December 31, 2008. On September 19, 2006, both parties agreed to a few clerical changes and Spidell signed the contract. On September 15, 2006, several days before the contract was signed by Spidell, the County terminated a bargaining unit member. POAM filed a grievance on September 20, 2006, but the County denied the grievance stating that the dis- charge was subsequent to the expiration of the old contract and prior to the employer’s execution of the new contract. The County cited Ottawa County v Jaklinski, 423 Mich 1; 377 NW2d 668 (1985), stating that the right to arbitration of a grievance does not survive the expiration of a labor contract. POAM Assistant General Counsel George Mertz informed the County that POAM disagreed with its interpretation of the Jaklinski case, claiming that there is nothing in the case that would prevent the right to arbitrate the grievance, because of the retroactive effect of the contract. On October 12, 2006, local union president Ron Brown notified the Lake County Board of Commissioners that POAM was advancing the grievance to the third step and would ultimately seek arbitration if the grievance procedure did not resolve the issue. On October 17, 2006, counsel for the County, John McGlinchey, sent a letter to Pat Spidell stating that the agreement, as ratified and executed by POAM, would be presented to the Board of Commissioners for its ratification and execution. McGlinchey also stated that the employer did not consent to arbitrate grievances filed after the expiration of the contract. On October 26, 2006 the contract was signed by the County, even though the parties continued to negotiate over retiree health care issues. Shortly thereafter the parties agreed to substitute retiree health insurance language proposed by the County and Brown signed the contract on November 8, 2006. The retiree health insurance changes then be- came effective, and employ- ees received wage increases that were made retroactive to January 1, 2006. POAM filed an un- fair labor practice (ULP) against the County on January 24, 2007, alleging that the County was required to arbitrate the grievant’s termination under the terms of the 2006-2008 agreement. Lake County countered that because the discharge occurred after the old agreement expired and before the 2006-2008 agreement was ratified, they were not required to arbitrate the grievance and refused. The Michigan Employment Relations Commission (MERC) held that the County violated their duty to bargain in good faith by refusing to submit the grievance to an arbitrator. Lake County immediately appealed MERC’s decision to the Michigan Court of Appeals. Court of Appeals Judges Markey, Wilder and Stephens, in their decision, pointed to a previous case in Port Huron where “if the issue of arbitrability is raised, the arbitrator shall decide the merits of the grievance only if the arbitrability is affirmatively decided.” They went on to say, “There is no question the parties have agreed to arbitrate contractual disputes.” They stated that Lake County’s argument that they had never agreed to retroactive application of the grievance procedure fails because they expressly ratified and executed the contract retroactively, except for provisions expressly exempted from retroactivity. The contract, as MERC had found, unambiguously stated that the agreement was effective January 1, 2006, unless otherwise provided. The Court also rejected the County’s claim that they did “provide otherwise” by refusing to participate in arbitration. Lake County’s attorney, John McGlinchey, testified that his refusal to arbitrate the grievance constituted an exception under the “unless otherwise provided” language of the contract. POAM attorney George Mertz pointed out and the Court agreed that the contract’s language provides that its terms are retroactive “unless otherwise provided by and between” the parties. Mertz also pointed out that the contract stated that it “contains the entire terms and conditions of employment agreed upon” by the par- ties. Mertz further showed that the parties specifically excluded health care benefits from retroactivity, which underscored the understanding of the term “except as otherwise provided” and, no such language appeared in relation to arbitrability. The Court of Appeals rejected Lake County’s appeal of MERC’s determination of a ULP. Lake County has spent tens of thousands of dollars and is risking substantially more than that if it loses the arbitra- tion. If arbitration was not available, POAM would have simply sued Lake County in Circuit Court for breach of contract. Hoping that POAM would back off its defense of a member just because the County said they would not participate was just as big of a mistake.
