Grievance Procedure Expires With Contract

Catherine Whiting was a corrections officer with the Ottawa County, Michigan Sheriff’s Department. On February 15, 2006, while Whiting was off duty, she learned that her husband had engaged in an extramarital affair with a female acquaintance, Holly Gerbers. Upon learning of the affair, Whiting telephoned Gerbers and threatened to kill her. The following day, the Department suspended Whiting pending an internal investigation into her conduct.

Eventually, the Sheriff elected to terminate Whiting. Whiting’s labor organization, the Police Officers Association of Michigan, challenged the termination decision by filing a grievance.

The County then filed a lawsuit seeking a declaratory judgment that it had no obligation to submit to arbitration because its collective bargaining agreement with the Association had expired. When a trial court agreed with the County, the Association challenged the decision in the Michigan Court of Appeals.

The Court found that the Association had no right to proceed to arbitration. The Court noted that when the grievance was filed, the preexisting contract between the County and the Association had expired, and no new contract had been ratified. Citing a number of United States Supreme Court cases in support of its position, the Court found that “the collective bargaining law requires employers and unions to collectively bargain on matters comprising mandatory subjects of bargaining. When a contract expires, the employer has a continuing duty to bargain in good faith to obtain a new contract with regard to mandatory subjects. Neither party to the expired contract may take unilateral action on a mandatory subject unless impasse has been reached in contract negotiations, and if the employer takes such action before impasse, an unfair labor practice has been committed.

“Among the mandatory subjects of bargaining is grievance resolution, including arbitration. While most mandatory subjects of an expired contract may not be unilaterally changed before an impasse has been reached in negotiations, there are several exceptions to this rule, including in regard to grievance arbitration. The exceptions regarding grievance arbitration are premised on the consensual, rather than compulsory, nature of arbitration.”

The Association argued that Whiting’s case was different in that the County and the Association had not reached an impasse in negotiating the new contract and there was never any question but that the parties would execute a new contract containing the same arbitration provisions as the expired contract. The Court observed that “the general rule prohibiting unilateral changes before impasse does not apply to grievance arbitration. There is no statutory duty to arbitrate after the expiration of a contract. The right to grievance arbitration only survives the expiration of a contract when the grievance concerns the kinds of rights that could accrue or vest during the term of the contract, unless the contract specifically provides otherwise.”

Ottawa County v. Police Officers Association of Michigan, 2009 WL 1890437 (Mich. App. 2009).

Note: The significance of the Whiting case is that when a contract expires, the method of enforcing the mandatory subjects of bargaining contained in the contract changes. Instead of challenging what would have been contract violation through the filing of grievances under a grievance procedure, a labor organization must instead file unfair labor practice charges alleging that the employer’s conduct constitutes a unilateral change in a mandatory subject of bargaining.

This article appears in the August 2009 issue