Local 1518, Council 55, Am. Federation of State, County and Municipal Employees, AFL-CIO v. Meharg

• Decision Date: 30 July 1979
• Docket Number: No. 2,No. 60216,AFL-CIO,60216,2
• Parties: LOCAL 1518, COUNCIL 55, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,, and James P. Bruin, Plaintiffs-Appellees, v. Norman MEHARG, Sheriff of St. Clair County, and the Board of Commissioners of the County of St. Clair, Defendants-Appellants, and Michigan Sheriff's Association, a Michigan Corporation, Intervening Defendant-Appellant. Calendar407 Mich. 1, 281 N.W.2d 313, 103 L.R.R.M. (BNA) 2406
• Court: Michigan Supreme Court

Page 313

281 N.W.2d 313

LOCAL 1518, COUNCIL 55, AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES, AFL-CIO, and James P.

Bruin, Plaintiffs-Appellees, v. Norman MEHARG, Sheriff of St. Clair County, and the Board of

Commissioners of the County of St. Clair,

Defendants-Appellants,

and

Michigan Sheriff's Association, a Michigan Corporation,

Intervening Defendant-Appellant.

No. 60216.

Calendar No. 2.

407 Mich. 1, 281 N.W.2d 313, 103 L.R.R.M. (BNA) 2406

Supreme Court of Michigan.

July 30, 1979.

[407 MICH 6] Zwerdling & Maurer, Detroit by George M. Maurer, Jr., Detroit, for plaintiffs-appellees.

J. Douglas Korney, [407 MICH 7] Gregory Van Lopik, Korney & Moore, Detroit, for the Police Officers Association of Michigan.

Hankins, Kluck & Robillard, P. C., Okemos by Thomas A. Carlson, Okemos, for Fraternal Order of Police, State Lodge of Michigan.

Farhat, Burns & Story, P. C., Lansing by E. Michael Stafford, Richard C. Kraus, Lansing, for intervening defendant-appellant.

COLEMAN, Chief Justice.

The principal question presented is whether a sheriff's decision not to reappoint a deputy for another term of service must be submitted to binding arbitration for review.

M.C.L. § 51.70; M.S.A. § 5.863, which was first enacted in 1846 ¹ and revisited by the Legislature in both 1969 and 1978, ² concerns, Inter alia, the specific subject of the authority of sheriffs to appoint and discharge their deputies. In language which had remained virtually unchanged since its original enactment, it provided at all times relevant to this case:

"Each sheriff may appoint 1 or more deputy sheriffs at his pleasure, and may revoke such appointments at any time * * *."

M.C.L. § 423.233; M.S.A. § 17.455(33), which was enacted in 1969, ³ concerns the specific subject of the arbitration of public police and fire department labor disputes. However, it does not state whether these disputes include "grievance" as well as "interest" disputes; ⁴ nor does it mention any particular kinds of grievance disputes, such as those involving a discharge or failure to reappoint. At the time the dispute in this case arose, the arbitration statute stated:

"Whenever in the course of mediation of a public police or fire department employee's dispute, the dispute[407 MICH 8] has not been resolved to the agreement of both parties within 30 days of the submission of the dispute to mediation and fact-finding, or within such further additional periods to which the parties may agree, the employees or employer may initiate binding arbitration proceedings by prompt request therefor, in writing, to the other, with copy to the labor mediation board."

Our brethren contend that by enactment of this statute the Legislature implicitly intended Sub silentio to repeal M.C.L. § 51.70; M.S.A. § 5.863 and require compulsory binding arbitration of grievance disputes, including those involving a sheriff's decision not to reappoint a deputy.

We must respectfully disagree. The Legislature plainly intended M.C.L. § 423.233; M.S.A. § 17.455(33) only to provide for arbitration of "interest" disputes where the normal process of collective bargaining over the terms of a new contract has broken down. It has clarified that intention by a recent amendment to the statute. Since the statute does not apply to individual grievances like the present dispute, it is not necessary to consider whether it can be reconciled with the statute which empowers the sheriff to appoint and remove deputies.

I

The plaintiff was first appointed to serve a term as a deputy sheriff in 1957. He was

subsequently reappointed to successive terms by various sheriffs, including the defendant when first elected in 1969. At the end of 1972, however, the defendant informed him that he would not be reappointed for the coming term

The collective bargaining agreement in effect at the time of the defendant's decision not to reappoint the plaintiff included a detailed five-step [407 MICH 9] grievance procedure. ⁵ Step one provided for discussion[407 MICH 10] of the grievance with the sheriff or the sheriff's

designated representative. The grievant could, if he so desired, be represented by his local union representative. If no mutually satisfactory resolution resulted from step one, step two provided for further discussions at the departmental level. Step three provided for discussion of the grievance with the designated representative of the county board of commissioners, and for a written disposition of the grievance by that representative within 48 hours. Step four provided for a hearing before the same representative, and a written opinion within 48 hours. Step five provided for mutual consent arbitration

The plaintiff filed a grievance pursuant to these procedures on the day he was informed by the defendant that he would not be reappointed for the coming term. At the hearing conducted before the representative of the board of commissioners, [407 MICH 11] however, the plaintiff refused to respond to the written charges of misconduct leveled against him. ⁶ The grievance was thereafter resolved against the plaintiff, and the defendant did not consent to submit the grievance to arbitration, as he had a right to do or not to do under the agreement.

The plaintiff filed the instant action in circuit court, asserting, Inter alia, that he was entitled to compulsory arbitration of his grievance. He alleged that he had been discharged solely because he had run against the defendant as a candidate for sheriff in the last election. The defendant denied this allegation and alleged that his decision not to reappoint the plaintiff was supported by just cause. Testimony and exhibits presented at trial revealed that this included an alleged failure by the plaintiff to follow jail security procedures, resulting in the escape of three prisoners, and an alleged misuse of sick-leave time, involving the [407 MICH 12] plaintiff's campaigning for sheriff while on extended sick leave for hypertension.

The trial judge did not rule on the merits of the factual allegations made by the parties. Instead, he ruled as a matter of law that M.C.L. § 51.70; M.S.A. § 5.863 controlled and supported the defendant's actions. He concluded:

"Appointment remains the prerogative of the sheriff. If that is going to be changed, it should be changed by the Legislature and not by judicial legislation."

The plaintiff appealed and the Court of Appeals reversed. ⁷ Leave to appeal was granted primarily to consider whether the Court of Appeals decision conflicted with this Court's previous decision in Council No. 23, Local 1905, AFSCME v. Recorder's Court Judges, 399 Mich. 1, 248 N.W.2d 220 (1976). ⁸

II

We are of the opinion that the Legislature did not intend that M.C.L. § 423.233; M.S.A. § 17.455(33) would apply to individual grievance disputes. The sophisticated provisions of the Police and Fire Department Compulsory Arbitration Act, M.C.L. § 423.231 Et seq.; M.S.A. § 17.455(31) Et seq., of which M.C.L. § 423.233; M.S.A. § 17.455(33) is a part, are directed toward the resolution of major collective bargaining impasses and the prevention of police and fire [407 MICH 13] department employee strikes. ⁹ They are inapposite to the resolution of individual employee grievance disputes, which may involve matters as trivial as the length of an employee's hair or the shine on his or her shoes.

The plaintiff's union apparently recognized this fact. In conjunction with negotiation of the collective bargaining agreement preceding the agreement involved in the case at bar, the union initiated compulsory interest arbitration pursuant to M.C.L. § 423.233; M.S.A. § 17.455(33) in an attempt to secure a compulsory grievance arbitration provision as a part of the agreement. ¹⁰ That would have been unnecessary if M.C.L. § 423.233; M.S.A. § 17.455(33) itself already provided for compulsory arbitration of grievance disputes. In Grosse Pointe Farms Police Officers Ass'n v. Chairman of Michigan Employment Relations Comm., 53 Mich.App. 173, 218 N.W.2d 801 (1974), the chairman of the Michigan Employment Relations Commission also recognized this fact. He denied a plaintiff's request pursuant to the Act for appointment of an arbitrator to arbitrate a grievance dispute on the ground that the act was intended to cover only interest disputes and not grievance disputes. Although asked to decide the scope of the act in the Grosse Pointe [407 MICH 14] Farms case, the Court of Appeals declined to address the question because it believed that plaintiffs had improperly bypassed a fact-finding stage provided by their collective bargaining agreement.

However, when the issue of the scope of M.C.L. § 423.233; M.S.A. § 17.455(33) reappeared in AFSCME v. McKervey, 62 Mich.App. 689, 233 N.W.2d 836 (1975), the Court of Appeals declared that the statute applied to grievance disputes as well as to disputes arising out of contract negotiations. Our brethren, without analysis, rely upon McKervey and would apply it to all individual grievance disputes occurring prior to the effective date of 1977 P.A. 303. ¹¹

A closer examination of McKervey reveals that the Court of Appeals broad reading of M.C.L. § 423.233; M.S.A. § 17.455(33) was unnecessary to the decision. In that case, the circuit court had voided an arbitration award rendered pursuant to a procedure established in the collective bargaining agreement on the ground that the Police and Fire Department Compulsory Arbitration Act provided the exclusive mechanism for arbitration of police and firefighters' disputes and preempted any contractual arbitration provision. Ironically, the plaintiff bargaining unit, another local of the same AFSCME council to which Local 1518 belongs, argued on appeal that the act "makes compulsory arbitration applicable only to

pre-contract negotiations, not to disputes over rights arising under the collective bargaining contract". The Court of Appeals rejected that interpretation but recognized that the...