Parties Made Contract Retroactive Unless Specific Exceptions Made

The 2003-2005 collective bargaining agreement between Lake County, Michigan and the Police Officers Association of Michigan contained a typical “just cause” disciplinary clause. As of the contract’s expiration on December 31, 2005, no agreement had been reached to extend the term or provisions of the contract.

The parties reached a tentative agreement in May 2006. The tentative agreement stated that except for the enumerated changes listed in the tentative agreement, all language from the previous contract would become part of the new agreement. The tentative agreement did not state when the contract would take effect.
However, the agreement provided that a change in the seniority provisions accepted by the parties would not be retroactive, nor would the new language apply to any pending grievances.

On September 15, 2006, several days before the contract was signed, the County terminated Deputy Joseph Luce. The Association filed a grievance challenging the termination, but the County refused to process the grievance on the grounds that the discharge was subsequent to the expiration of the old contract and prior to the its execution of the new contract.

Michigan’s Court of Appeals found that the County’s conduct amounted to an unfair labor practice. To begin with, the Court found that an arbitrator and not the County should determine whether the new contract should be retroactively applied: “In this case, there can be no question that the subject of the Luce grievance, his discharge without just cause, is a matter for arbitration under the agreement. The question is whether the timing of the grievance, after the old agreement expired and before the new agreement was ratified, requires it to be arbitrated. This is a procedural, rather than a substantive, question.”

The Court was also unconvinced by the County’s argument as to the retroactive application of the contract: “The County’s argument that it never impliedly or explicitly agreed to retroactive application of these provisions fails because it expressly ratified and executed the contract retroactively, except for provisions expressly exempted from retroactivity. The contract unambiguously states that the agreement is ‘effective January 1, 2006, unless otherwise provided.’ The County’s claim that it did ‘provide otherwise’ by vociferously refusing to participate in arbitration and point to their counsel’s opinion that they were not required to arbitrate the Luce grievance. However, the contract’s language provides that its terms are retroactive ‘unless otherwise provided by and between’ the parties. The contract also states that it ‘contains the entire terms and conditions of employment agreed upon’ by the parties.”

Lake County v. Police Officers Ass’n of Michigan, 2011 WL 445804 (Mich. App. 2011).

This article appears in the May 2011 issue.