By Ed Jacques, LEJ Editor

On February 14, 2007, Ottawa County Circuit Judge Edward R. Post issued an opinion and order affirming a previous Act 312 arbitration panel award. Act 312 provides for compulsory arbitration of labor disputes that arise between a municipality and its police department. Such a dispute arose between Ottawa County and the Police Officers Association of Michigan, who are the parties to a collective bargaining agreement (CBA). An order issued by an Act 312 arbitration panel is reviewable by the Circuit Court for the county in which the dispute arose. Ottawa County raised four issues. Two of those issues questioned the constitutionality of Act 312, and if the panel’s award was supported by competent, material, and substantial evidence on the whole record. Those objections were overruled in a slam dunk fashion by the Court, but both parties’ focus was clearly on the two remaining issues.

One of these issues is whether or not the 312 panel was without jurisdiction to order that a “non-economic ” term of the parties’ new CBA would be retroactive the “hiatus period. ” The non-economic term at issue was the provision of the parties’ new CBA that provided for the right to arbitrate grievances. The “hiatus period ” is the period between the expiration of the parties’ old CBA and the commencement of the parties’ new CBA. In its previous order, the panel ruled that the right to arbitrate grievances term of the parties’ new CBA applied retroactively to the hiatus period. Ottawa County conceded that an Act 312 arbitration panel has the authority to make economic terms retroactive, however, is without jurisdiction to make non-economic terms retroactive.

Judge Post pointed out that the power of an Act 312 panel to make the terms of the panel’s order retroactive is expressly and succinctly set forth in MCL 423.240 which states, in part: “increases in rates of compensation or other benefits may be awarded retroactively. ” The Court held that the panel was not without jurisdiction to rule that the right to arbitrate grievances terms of the parties’ new CBA was to be retroactive to the hiatus period. The other issue to be determined was whether or not the arbitration panel was without jurisdiction to rule on the retroactivity of the right-to-arbitrate grievances term of the parties’ new CBA because (1) the parties had not bargained regarding this term and (2) the parties had not submitted their dispute regarding this term to mediation.

Circuit Judge Post referred to POAM’s initial victory versus the Ottawa County Sheriff in the Michigan Court of Appeals in 2004, stating that nothing in Act 312 precludes an Act 312 arbitration panel from considering and deciding an issue that is raised for the first time at the arbitration hearing. Whether or not the parties bargained as to the retroactivity of the right-to-arbitrate grievances term was irrelevant to the Court, as well as the fact that their dispute regarding this issue was not submitted to mediation. In his written opinion, Judge Post notes that in City of Manistee v ERC, 168 Mich App 422, 426; 425 NW2d 168 (1988) held that there must be unsuccessful mediation of the parties’ dispute before either party may invoke compulsory arbitration under Act 312. However, as used in City of Manistee, the term “dispute ” means the sum total of all of the issues as to which the parties disagree, rather than a specific, individual issue. The case was originally briefed and argued before the Act 312 Panel by POAM General Counsel Frank Guido; Assistant General Counsel George Mertz presented oral argument before Judge Post on appeal. Previously, in the rare circumstance that an employer will not allow retroactivity of the grievance procedure, the Union and the affected employee would have to file a lawsuit in Circuit Court claiming a breach of contract. That process is longer and more expensive than the traditional arbitration called for in a CBA.

“The majority of contracts that are in negotiations have expired, ” said POAM and Ottawa County Business Agent Jim DeVries. “This victory offers protection to every single police officer in Michigan that bargains a new contract in good faith after expiration of an agreement. In fact, POAM is currently representing two employees that were dismissed during the hiatus period and now have the grievance procedure as a course of remedy. “POAM Assistant General Counsel, George Mertz, commented on some of the testimony that ironically helped POAM prevail in this monumental case. “Upon questioning by General Counsel Frank Guido, one of Ottawa County’s Administration went on record as stating that his belief was that, even in the midst of negotiating a successor agreement, all employees are considered at will, ” said Mertz. “The arbitration panel immediately realized that employees needed to have an avenue to forward grievances. ” Ottawa County Deputy Sheriffs Association President, Matthew Van Liere, had mixed feelings on the subject. “It is unfortunate that our employer is named in a case that will be cited by attorneys for decades to come, but it says a lot about our union’s wisdom to affiliate with the POAM. “