By Ed Jacques, LEJ Editor
In 2009, Patrick Spidell from the Command Officers Association of Michigan (COAM) filed a petition to clarify its bargaining unit of supervisory employees of the Leelanau County Sheriff’s Department to include the newly created position of “Law Enforcement Commander.”
Spidell contended that the placement of the position in the COAM unit was appropriate because the Law Enforcement Commander is a third-level supervisory employee. The employer argued that the newly-created position cannot be properly placed in any bargaining unit because it is an executive position, and the Michigan Employment Relations Commission (MERC) has ruled that executives should be excluded from collective bargaining.
Before you assume this will be a typical MERC decision and jump to the end of the story to read the conclusion, you need to know that the employer is POAM’s back-to-back winner of its “Horse’s Ass” award, the union rep is his long- time adversary whom he refers to as the “Johnny Cochran” of the POAM. Throw in the attorney for Leelanau County, John McGlinchey, and you have a good old-fashioned three-for-all. In this case, Mr. McGlinchey must have known that his client was in trouble early on.
In a pre-trial hearing with Administrative Law Judge David M. Peltz, Peltz asked both parties why this issue was being revisited in light of Lake County and Lake County Sheriff, 1999 MERC Lab Op 107, where the court ruled that a Chief Deputy in command of a department in the absence of the Sheriff and Undersheriff is not excludable from a supervisory unit as an executive. Coincidentally, the two advocates who argued that case were McGlinchey and Spidell.
Advantage – Spidell and COAM
The employer argued the Law Enforcement Commander should be exempt from Union privileges because he has the authority to assign work, discipline the sergeants and deputies under his command, conducts internal investigation of departmental employees, including positions within the COAM bargaining unit, is responsible for the establishment of policies and procedures applicable to the department, plays a role in the hiring and firing of employees in the Law Enforcement Division, and assumes command of the Department when the Sheriff and Undersheriff are unavailable. Spidell countered that the daily schedule for Road Patrol Deputies is prepared by one of the Sergeants. The Law Enforcement Commander does not play a specific role in contractual grievance procedures and only has the authority to discipline employees under his command until suspension without pay.
Spidell added even though he is responsible for establishing policies and procedures applicable to the Department, Sheriff Oltersdorf has the authority to overrule any of the policy decisions made by the Law Enforcement Commander. The “Commander” has no budgetary responsibilities and must seek the approval of the Undersheriff before making purchases on behalf of the Law Enforcement Division, and has no responsibility whatsoever in developing the Employer’s overall budget. Early in his presentation, Spidell produced a confidential memo from Sheriff Michael Oltersdorf requesting the Leelanau County Commission create a new position to run the Law Enforcement Division.
Oltersdorf detailed the “adversarial relationship” that existed between him and the two sergeants assigned to the Law Enforcement Division. Oltersdorf also stated, “It would not be beneficial to our County to promote a third Sergeant who would work closely with them and without a doubt, also become adversarial (with their influence).” He said he does not feel the two law enforcement sergeants buy into the Sheriff’s “philosophy.”
Coincidentally, these two sergeants have filed a federal lawsuit against the Sheriff for eavesdropping on personal and union phone calls and have persevered in Oltersdorf’s “House of Horrors.” Last year, an independent “Blue Ribbon Panel” of attorneys who were not otherwise involved in the case recommended to the County that they settle the sergeant’s federal lawsuit with a $1.2 million award. Risking hundreds of thousands of dollars more in attorney fees, the County Board of Commissioners unanimously rejected the settlement plan. This new “Law Enforcement Commander” job classification is not the first time the Commissioners have been hoodwinked by Oltersdorf.
In his decision, Judge Peltz agreed with Spidell and dismissed every claim of proper executive status made by the employer. He said, “We have long held that a unit that includes all levels of supervision is presumptively appropriate, even though some members of the unit exercise supervisory authority over other members of the unit, and that upper-level supervisors will not be denied rights under PERA.” Peltz also dismissed Oltersdorf’s request that a different standard should apply with respect to the executive status of upper management employees in a paramilitary setting.
COAM cannot accept dues from the Commander position until Sheriff Oltersdorf agrees to negotiate the terms and conditions surrounding how the position should be properly filled. Spidell is not sure that will happen any time soon. “This case is about principle and keeping job classifications in the appropriate union,” said Pat. “I expect the Sheriff to continue his long-standing tradition of trying to find ways to circumvent a judge’s decision.”
