Unless Otherwise Specified, Bargaining Waivers Expire With Contract

The Police Officers Labor Council (POLC) represents a bargaining unit comprised of police command officers employed by the Township of Van Buren, Michigan. The POLC and the Township were parties to a collective bargaining agreement in effect from January 1, 2010, through December 31, 2013. Section 1 of Article XXI contained the following provision:

“The Union waives any right to negotiate on any item that involves the pension until such time as actuaries employed by MERS certify that the plan is one hundred percent (100%) actuarially funded. In addition, the Union waives any right to file a grievance or engage in any other forum for benefits related to the MERS pension plan with the exception that if an individual believes that he or she is not receiving the appropriate pension such issue would be subject to the grievance procedure.”

Prior to the agreement’ s expiration, the parties began negotiating over a successor agreement, meeting and settling several issues. The parties participated in mediation over issues concerning the employee and employer pension contribution and wages. Eventually, the POLC filed a petition seeking arbitration of the POLC’s proposal to change employee pension contributions and to cap employees’ maximum liability at nine percent (9%).

The Township filed an unfair labor practice charge against POLC, arguing that POLC waived its rights to bargain over pension issues under Article XXI of the contract. Michigan’s Employment Relations Commission dismissed the Township’s charge.

The Commission noted that “it is clear and undeniable that pensions, and all significant provisions of pension plans, are mandatory subjects of collective bargaining. However, a party may knowingly and voluntarily relinquish its right to bargain about a matter by agreeing to clear and unambiguous contract language that unmistakably waives its rights. The Commission has previously found that a waiver contained within a collective bargaining agreement was presumed to expire at the same time as the collective bargaining agreement it is contained within.

“Our cases stress the importance that the waiver of a fundamental right, the right to bargain over a mandatory subject, has a definitive end date. In the present case, not only is the scope of the waiver in dispute, but so too is whether the condition precedent to the expiration of the waiver could ever be satisfied. Here the waiver is only extinguished at such time as actuaries employed by MERS certify that the pension plan is 100% funded. Accordingly there is no end date similar to the waivers in other cases we have held invalid.

“In addition, we have considered the lack of a clear intent by the parties that the waivers extended past the agreement’s expiration date as justification to find them invalid. The waiver here, durational issues aside, does not show a clear intent by the parties that it was to extend past the expiration of the collective bargaining agreement because, while unlikely, it is possible that during the term of that agreement the condition precedent necessary to extinguish the waiver, i.e., the plan being 100% funded, could have been satisfied.

“Accordingly, the attempts by the Union to bargain over the issues related to pension and seek the inclusion of said issues within arbitration do not constitute a violation of its duty to bargain in good faith.”

Van Buren Township, 30 MPER ¶ 27 (Mich. ERC 2016).