Amicus Brief

Macomb County, Macomb County Road Commission, and 16th Judicial Circuit Court v AFSCME

Case Year: 2012
Case Forum: Michigan Supreme Court
Keywords: collective bargaining agreement (CBA), contract, Michigan Employment Relations Commission (MERC), arbitration, retirement plans, actuarial equivalent, plain meaning, past practices
Amicus Counsel:

Mary Massaron Ross | Josephine A. DeLorenzo | Plunkett Cooney | 38503 Woodward Ave., Suite 2000 | Bloomfield Hills, MI 48304 | 313-983-4801

CoAmicus Parties:

1. Michigan Townships Association (MTA)
2. Michigan Association of Counties (MAC)
3. Michigan Bar Public Corporation Law Section (PCLS)


Amicus counsel argues that Port Huron, a case of binding authority, does not require parties to bargain over a subject that is covered in a CBA. In the present case, the CBA stated that the Macomb County Retirement Ordinance, stating that a retiree can choose the “actuarial equivalent” of the straight life retirement, controls optional retirement benefits. Therefore, according to the CBA, the Retirement Commission had the authority to alter the mortality table, and any disputes as to “actuarial equivalence” are to be solved by the grievance process or arbitration, not MERC. Counsel further argues that the term “actuarial equivalent” is not ambiguous, but as seen in attorney general opinions, means “equal value.” Thus, the unambiguous contract language is controlling, not the past practice of using the 100% female table. Additionally, Counsel argues that Port Huron requires a higher burden of proof to demonstrate that a past practice has altered unambiguous contract language, this burden was not met in the present case, and that this burden is necessary to the collective bargaining process by ensuring sanctity of contract. Lastly, counsel argues that the Court should reaffirm the Port Huron analysis in order to protect bargained for agreements, like the CBA in this case, and the solvency of retirement systems.


The Supreme Court held:
Disputes over the terms or conditions of employment that are covered by a CBA aresubject to arbitration through the grievance process. When the CBA grants the retirement
commission discretion to use actuarial tables to establish pension benefits, the commission’s decision to alter a long-standing method used to calculate those benefits, by itself, does not constitute the clear and unmistakable evidence necessary to overcome the CBA’s coverage and the change in calculation method does not create a new term or condition of employment that would trigger the need to bargain. Instead, the remedy for this dispute lies in the grievance and
arbitration system that the parties chose to adopt.
Reversed and remanded to the MERC for dismissal of the charging parties’ unfair labor practice claims.

MSC requested LDF amicus brief? Yes

Charging Parties-Appellees (“the unions”) each filed an Unfair Labor Practice charge (“ULP”) against Respondents-Appellants Macomb County, Macomb County Road Commission and the 16th Judicial Circuit Court (“Respondents” or “the employers”). . Each of the ULPs challenged the Macomb County
Retirement Commission’s decision to make corrections to a mortality table utilized to calculate pension benefits for Respondents’ retired employees. The Retirement Commission’s decision to make corrections to the mortality table was recommended by the actuaries hired to evaluate the pension fund. Use of the prior mortality tables had unknowingly caused excessively high pension payments to retirees who selected an optional form of payment (e.g., the surviving spouse option) compared to retirees who selected the straight life method of payment.

Case Number: 2011-19
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