By Ed Jacques, LEJ Editor
In April 2003, the Frankfort Police Department laid off its least senior officer in the department. Under the terms of its existing contract that expired in 2004, recall from lay- off was provided for, without regard to how long an officer remained in lay-off status. The officer in question was still on lay-off when over a year later new contract negotiations began between the Union and the City of Frankfort. In those negotiations, representatives from the Administration wanted to change the current language that allowed employees to remain on lay-off for an indefinite period of time. They stated their sole purpose was to avoid a situation where an Employee could appear ten or twenty years later and demand recall to their job. POAM Business Agent Pat Spidell and his local bargaining committee agreed with the City’s premise but insisted that any new provision not apply to the member officer who was already laid-off more than 12 months. Eventually, an agreement was in place that limited the department’s recall period to twelve months. In June 2006, in the first hiring since the officer’s lay-off, the Employer took on a new employee, to be a part-time officer. POAM objected, to no avail, and a grievance was filed soon thereafter stating that the Employer had violated the recall rights as established under the contract that was in effect at the time of the lay-off. The case was assigned to Arbitrator James A. Mackraz.
The City stated for the record that it never agreed, silently or otherwise, to exempt the Grievant from the implementation of Section 8.8 of the new collective bargaining agreement (CBA). POAM Business Agent Pat Spidell testified that the Union was clear in rejecting the Employer’s proposal unless it included the officer currently on lay-off. However, he did acknowledge that the Grievant would be subject to the new contractual lay-off terms after being recalled. Spidell further testified that he had informal side-bar discussions on this point with two of the three Employer Bargaining Committee Members. The City did not object and the Union’s local negotiating team took that as a silent agreement.
POAM Attorney George Mertz pointed out that when POAM requested a mediator’s assistance in negotiations, neither the Union nor Employer listed the recall from layï¿½off matter as an issue, nor was the matter mentioned at any time during the mediation process. This further silence confirmed the Union’s understanding that the recall issue was settled on the basis of the Union’s conditional acceptance of the Employers proposal. Frankfort POA President Robert Lozowski testified that the Administration made no response to the Union’s strong and clearly expressed position regarding the recall proposal, and the bargaining team reasonably took this silence to constitute tacit agreement with their counterproposal.
Frankfort Police Chief Keith Redder testified that he could not recall whether, in contract negotiations, the City had agreed to exclude the Grievant from the new Article 8.8. Bargaining Committee and City Council Member JoAnn Holwerda also could not recall the Union expressing conditional agreement with the City’s proposal and stated that the sole purpose was to avoid a situation where an employee laidoff under old Article 8.6, would appear ten or twenty years later and demand recall to their job. Frankfort Mayor Richard Bayer was also a bargaining committee member and testified that the City never agreed, verbally or otherwise, to exclude the Grievant from the Article 8.8 limitation.
Arbitrator Mackraz could not decide the case solely on the basis of witness testimony. He needed to delve deeper and proceeded to analyze previous case law presented by both sides.
In support of its position, the Employer submitted five cases citing that seniority rights are not inherent in the employment relationship and are generally created and can be modified by CBA’s.
Mertz supported the Union case on the basis that Grievant was the sole employee adversely affected by the disputed Article 8.8. He cited Grand Rapids v. Lodge 97, Fraternal Order Of Police, 415 MICH 628 and Alexander v. Gardner- Denver, 415 US 36, 51 stating: “While a Union may bargain away collective rights, individual rights of employees may not be bargained away. ” Mertz argued that these cases reflect the special status of an individual employee in the unionized setting as contrasted to that of employees as a group.
Spidell and Mertz successfully showed that the Employer’s stated objective in proposing limitations on recall would have been completely attained if the Employer recalled Grievant to the job vacancy. As it turned out, the City’s actions were tantamount to discharge without just cause.
The Employer made a strong argument in support of the rule calling for strict construction in the interpretation of contract language, i.e., its “plain meaning. ” In reviewing The Restatement (Second of Contracts), Arbitrator Mackraz agreed that “the words of an integrated document remain the most important of intentions. ” However, in his final decision Mackraz decided: “Granting that the words of the contract are clear and unambiguous, and that they reflect “the most important of intentions, ” in this case “the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties, ” taken together, outweigh the plain meaning of the words in Article 8.8.
The grievance was granted and the City of Frankfort was ordered to reinstate Grievant, and make him whole for all losses in wages and benefits incurred since June 14, 2006.
REMOVAL FROM PROMOTION LIST NOT ALLOWED
Shelby Township Violated Act 78 Rules
Sgt. Mark Coil has been employed by the Shelby Township Police Department for approximately 18 years, serving the department in several capacities. He was involved in the DARE program, SWAT team and as an Honor Guard. He was promoted to the rank of Sergeant in 2001 and has an unblemished disciplinary record.
The Township has adopted “Act 78 ” and has incorporated some of its provisions into the collective bargaining agreement (CBA), including management rights, promotions and the grievance procedure.
In 2006, Sergeant Coil and other Sergeants in the Township took the promotional exam for the rank of Lieutenant. Coil was ranked first on the Police Lieutenant eligible list that was certified by the Shelby Township Civil Service Commission on October 9, 2006. The Township was aware that it was likely that two lieutenants and a captain planned to retire in January 2007 and those vacancies would need to be filled.
On December 19, 2007, Sgt. Coil went to talk to the Chief of Police to ask him about some assignment changes regarding his upcoming promotion. When Coil left the office of the chief, he was apparently upset and allegedly used some profanity as he passed the chief’s secretary. Nothing about the incident was brought to Coil’s immediate attention and he went on vacation for the last two weeks of December.
On January 3, 2007, a letter from the chief was sent to Sgt. Coil given him notice of his promotion and informing him that an official ceremony was set to occur on Monday, January 15, 2007, and to bring his friends and family. Also on January 3, Coil received an e-mail from Chief Leman informing him that the department would be conducting an investigation regarding the incident that occurred on December 19, 2006.
On January 5, Coil submitted a statement regarding the incident and on January 7, began receiving Lieutenants pay and functioned in the capacity of the Patrol Division Shift Lieutenant.
On January 9, the Chief sent a memo to Coil notifying him that his promotion was being placed on hold until the investigation of the December 19th, the incident was completed. The ceremony scheduled for January 15 did not take place for either of the Lieutenants.
On January 31, 2007, Chief Leman sent a memo to Coil informing him that the department’s investigation had concluded and Coil was guilty of violating departmental rules and regulations. The memo also notified Coil that he was being suspended without pay and the Chief declared he was going to petition the Act 78 Civil Service Commission to remove his name for cause from the current eligibility list for Lieutenant. The Chief than attached a copy of his correspondence to the Commission.
The Township informed the Macomb Daily of the subject discipline and on the very same day, the Commission responded to Chief Leman by scheduling a hearing date on February 8, 2007.
COAM Business Agent Kevin Loftis fired off a letter to the Commission asserting the Union’s position that Chief Leman’s request was improper and removal of Lieutenant Coil’s name from the promotional list is outside the purview of the Civil Service Commission. The Commission’s promotional list had already been certified and, in-fact Lieutenant Coil was promoted effective January 7, 2007. Loftis also argued that the COAM collective bargaining agreement had been violated because the Agreement does not permit the removal of a commanding officer from an eligibility list, or demotion and/or the refusal to promote a commanding officer without just cause. For those reasons, Lieutenant Coil and COAM will not be appearing at the Commission hearing and the Commission is proceeding at their own risk. The Commission did not heed COAM’s warning and voted 2 to 1 to remove Coil from the eligibility list. Although Coil and Loftis did not participate, the hearing was attended by numerous police department patrol and command officers and Shelby Township firefighters that were vocal in their opposition to the Commission’s improper action.
COAM Attorney George Mertz was brought in to assist Loftis on the presentation of Coil’s case in grievance arbitration. The foundation of the case was the same as what was cited to the Commission months previous, but with clarifications and some new information garnered through testifying witnesses. While the Township contended that Rule 18 (I) allowed the removal of a candidate from the eligibility list, Mertz successfully proved that section allows for removal of names for very specific, limited reasons. Those reasons include but are not limited to: giving false information, drunk driving, reckless driving, etc. The appendix does not list disciplinary action as criteria. Mertz successfully shot down the Chief’s argument that Coil had been acting as a temporary lieutenant. Mertz showed that it was really the first step in being recognized as a Lieutenant with commensurate pay and duties. Mertz also pointed out that in the CBA the Union is given the choice of forms in which to seek relief for discipline that is alleged to have been unjust: it could either choose the Act 78 Commission or arbitration. The employer’s action was disciplinary and the Township unilaterally selected the form of the Act 78 Commission to prove that Coil’s name warranted removal from the eligibility list.
In Arbitrator Deborah M. Brodski’s decision, COAM properly challenged the statutory and contractual appropriateness of the Chief’s request. Citing Charron V. Hanus 44 Mich App. 217 (1972) 205 NW 2d90. Brodski noted the following: “Once an eligibility list is presented to the Authority, its discretion is limited to making appointments from the list of those eligible or refusing to fill the position at all. In Shelby Township’s case the arbitrator found that the Chief added a new qualification in suggesting that an eligible candidate can no longer be deemed eligible if that candidate engaged in conduct that was punished shortly of discharge. Brodski also stated for the record, “But for the Chief’s petition, the Commission has not been shown to have likely pursued this removal on its own initiative. Clearly, it was the Chief who wanted to take further additional action and that effectively put the question of the cause before the Commission. Under Article 25.7 of the CBA the grievant and the Union have the choice of forum in which to appeal discipline; either arbitration or the Act 78 Commission. ” By bringing this matter before the Commission, Chief Leman was essentially asking the Commission to agree that he had cause to discipline Coil for his December 19 action. “Removing the grievant’s name from the promotional eligibility list was one form of punishment meted to the grievant. For the Township to argue that this decision was the Commission’s and not the Township’s is without basis. The Township’s attempt to prove just cause before the Commission was misplaced. ”
Needless to say, Lieutenant Coil was nervous as he awaited the arbitrator’s decision. “I had a lot of sleepless nights, ” said Coil. “Kevin Loftis and George Mertz were great advocates and presented a strong case on my behalf. I had a lot at stake, as well as other police officers and firefighters that make the promotional list in the future. ” Loftis credits Coil with being professional through the whole ordeal. “Mark contributed to the presentation of his case and trusted our decision not to appear at the Commission hearing. That was a gutsy call. ” Arbitrator Brodski confirmed that in her report when she stated “Had the grievant participated in the February 8 meeting, he would have effectively relinquished his right to choose the forum. ”
On October 10, 2007, Arbitrator Brodski issued her award ordering the Township to immediately reinstate Mark Coil to the position of Lieutenant with full back pay and seniority dating back to February 9, 2007. “Sometimes arbitrators are hesitant about awarding back pay even though they agree with the grievance, ” said Loftis. “The decision validates the strength of our case and the excellent representation provided by COAM attorney George Mertz. “