Employer Must Proceed to Arbitration on Grievance That Is ‘Arguably Arbitrable’

Lake County, Michigan and the Police Officers Association of Michigan are parties to a collective bargaining agreement covering members of the Lake County Sheriff’s Department. The parties’ 2003-2005 collective bargaining agreement expired without a new contract. A tentative agreement on a new contract was reached in May 2006, but did not state when the new contract would take effect. However, the agreement provided that a change in the seniority provisions accepted by the parties would not be retroactive.

The Association ratified the tentative agreement on July 19, 2006, but the County’s ratification process did not conclude until the end of the summer. On September 15, 2006, several days before the new contract was signed by the Association, the County terminated Deputy Joseph Luce. When the Association challenged the termination with a grievance, the County refused to proceed to arbitration, taking the position that the grievance was not arbitrable under the old collective bargaining agreement because it had expired, nor was it arbitrable under the new agreement which had not yet been signed.

Michigan’s Employment Relations Commission ordered the County to arbitrate the grievance. The Commission held that “a refusal to proceed to the arbitration of a grievance that is arguably arbitrable is a violation of the duty to bargain in good faith. For us to agree with the County’s contention, we would have to find that the grievance is clearly not arbitrable under both the 2003-2005 contract and 2006-2008 contract. The record does not support such a finding.

“There was no duty under the expired 2003-2005 contract to arbitrate the grievance. Arbitration is a recognized exception to the general rule that an employer has a statutory duty to maintain existing terms and conditions of employment after the expiration of the collective bargaining agreement. Where a grievance has been filed after the contract expiration and in the absence of contract language providing that the arbitration provisions extend beyond the life of the contract, an employer may lawfully refuse to arbitrate.

“The 2006-2008 contract expressly provides that it became effective January 1, 2006, several months before Luce’s discharge and the filing of the grievance. The County signed the 2006-2008 contract (it was only awaiting the Association signature), and the contract did not address the issue of retroactive arbitration. Thus, the grievance is arguably arbitrable under the 2006-2008 contract.”

The Commission did not decide the ultimate question: “We make no finding on the question of whether the arbitration provision in the 2006-2008 contract is retroactive to January 1, 2006. That is not the issue before us. Inasmuch as we have found that the issue is arguably arbitrable, the question of actual arbitrability is left to the Arbitrator or the Courts.”

Lake County, #C07-8-011 (Mich. ERC 2009).

This article appears in the May 2010 issue