By Ed Jacques
In September 2008, negotiators for the City of Belleville and POAM on behalf of the Belleville Police Officers Association reached a tentative agreement on a new collective bargaining agreement to replace the prior contract which had expired. Details of the tentative agreement were set forth in a one-page document dated September 24, 2008. Among the changes were a series of wage increases, including a $300 signing bonus, retroactive pay, a health care re-opener in 2009, and the addition of Good Friday as a holiday for unit members. The written agreement did not specify that there would be any change with respect to promotions for bargaining unit members.
Members of the bargaining unit ratified the tentative agreement as on September 29, 2008. TPOAM/POAM Business Agent, Thomas Funke, notified the City of the results of the ratification vote by letter dated October 7, 2008. In that letter, Funke indicated that the POAM would prepare a draft of the contract and provided a copy to the City for its approval followed by a signed copy of the agreement.
On October 6, 2008, the Belleville City Council unanimously approved the written tentative agreement with the stipulation that such approval was pending the review of its City Attorney. The Union was not notified that the City Council’s approval was in any way conditional. On October 21, 2008, bargaining unit members received checks for retroactive pay and the $300 signing bonus as specified in the tentative agreement. On November 7, 2008, the Union provided the City with a draft copy of the agreement with no changes in respect to the issue of promotions. In January of 2009, the City Attorney informed the Union that the promotional language was not acceptable because it allegedly conflicted with the City Charter. The parties met several times to address those concerns but, in February 2009, the City informed the POAM that it would not execute the contract. The City refused to provide additional benefits owed to bargaining unit members under the terms of the agreement, including a wage increase due to members beginning on July 1, 2009. POAM, on behalf of the BPOA, filed an unfair labor practice charge. The City, in response, also filed a charge against the Union.
Attorney David E. Kempner represented the Employer and Assistant General Counsel Douglas M. Gutscher argued for the Union in front of Administrative Law Judge David M. Peltz.
Gutscher pointed out that one of the requirements of good faith collective bargaining under the Public Employees Relations Act (PERA) is the expeditious and decisive acceptance or rejection of a tentative agreement. The Michigan Employment Relations Commission (MERC) has recognized that collective bargaining envisions an obligation on the part of those involved in the negotiation process to affirmatively support a contract to which they have tentatively agreed and that a failure to do so may constitute an unfair labor practice. Where a contract provision in dispute is unambiguous and there is no evidence of fraud or bad faith, a party cannot later repudiate that provision by claiming that it did not intend to agree to the provision and/or that it failed to read the agreement carefully before ratifying it.
Attorney Kempner claimed that the City’s ratification was made conditional at a public meeting, even though it is clear as a matter of law, that mere notice to the public at a meeting or perhaps publication in a newspaper does not constitute notice to the Union. Attorney Kempner was also aware that any contradictory provision in the City Charter would not nullify the agreement that had been reached and ratified, because PERA, as the Michigan Supreme Court has consistently recognized, is the dominant law regarding public employee labor relations. The Court has consistently held that the bargaining obligation under PERA prevails over conflicting legislation, charters, ordinances, or resolutions. Notwithstanding other compelling evidence, Gutscher cited the City’s financial distribution of retroactive pay and the $300 signing bonus as more proof of the contract’s de facto execution.
In support of his decision for POAM/BPOA, Judge Peltz cited the City of Northville, (20 MPER 50) 2007. The case held that a bargain cannot be dissolved because of a claim, after the fact, that it will have a negative effect on a Union, its members, a public employer, or governmental entity.
In his decision, Peltz admonished Kempner and the City for its behavior and ordered the City to abide by the collective bargaining agreement ratified in September 2008. Judge Peltz also stated that if it was not for poor case law in Goolsby v City of Detroit, 211 Mich App 214) (1995), he would award attorney fees and costs to the Union as compensatory damages.
TPOAM/POAM Business Agent Thomas Funke was confident of victory when POAM Assistant General Council Doug Gutscher took on the case but was still relieved when it came to its appropriate conclusion. “It took three years and three City Managers to get a deal done that the City of Belleville would not honor,” said Funke. “The group is pleased that we hammered out a five-year deal and I am especially happy that I do not have to begin new negotiations right away.”