Dennis B. DuBay | Richard W. Fanning, Jr. | Keller Thoma, P.C. | 26555 Evergreen Rd | Southfield, MI 48076

The belated introduction of new issues during collective bargaining is a violation of the duty to bargain in good faith and is an unfair labor practice. Act 312 is supplemental and subordinate to PERA, and is a part of a complex statutory scheme created to foster resolution of labor disputes between public employers and the labor organizations who represent their employees. In sum, the legislative scheme requires public employers and unions representing Act 312 eligible employees to negotiate in good faith on wages, hours and terms of employment. This duty to bargain in good faith is exclusively defined by MERC. If negotiations do not result in an
agreement, the parties may proceed to mediation under PERA. Any issues remaining unresolved after mediation may only then be submitted to a Panel acting under the scope of Act 312.

On March 9, 2006, the Court heard oral argument on the application for leave to appeal the October 14, 2004 judgment of the Court of Appeals. On order of the Court, the application for leave to appeal is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. MCR 7.302(G)(1).

The POAM is a labor organization that serves as the bargaining agent for the sheriff ‘s deputies who are employed by respondents. The collective bargaining agreement that existed between the POAM and respondents expired on December 31, 1999. On June 5, 2000, the POAM filed a petition on behalf of the sheriff ‘s deputies seeking compulsory arbitration under 1969 PA 312 (Act 312), which provides for compulsory arbitration of labor disputes in municipal police and fire departments. MCL 423.231. In its petition, the POAM identified fourteen disputed issues, including “Grievance Procedure” and “Arbitrator’s Powers.” The arbitration panel1 held a prehearing conference on September 19, 2000, and identified all the issues to be arbitrated as “economic.” The panel also identified “retroactivity” as an issue. On September 26, 2001, the POAM accepted respondents’ offer of settlement but noted that “there were remaining issues concerning ‘duration (retroactive) on wages and grievance procedure duration (retroactive/prospective).'”
On October 4, 2001, the arbitration panel conducted an arbitration hearing on the unsettled issues. The POAM raised an issue regarding respondents’ refusal to arbitrate grievances that occurred after the expiration of the prior collective bargaining contract. The POAM sought retroactive arbitration of the twelve grievances, and respondents contended, in part, that the issue was not timely because the issue of retroactivity of arbitration of grievances was not contained in the initial petition for arbitration.
The arbitration panel issued a majority opinion and award on February 4, 2002,2 declining to consider the POAM’s last best offer concerning the right to retroactively arbitrate grievances because, “the Act and the rules prohibit a consideration of the arbitration-related issues at a time near or at the scheduled arbitration hearing.” On February 21, 2002, the POAM filed a complaint seeking to vacate that portion of the arbitration award that refused to consider the POAM’s last best offer on the right to arbitrate pending grievances. The POAM argued that MCL 423.238 and Rules 423.505 and 423.507 do not prohibit a party from raising “issues in dispute prior to the close of the hearing, and that both POAM and defendants were ‘on notice of the existence of the dispute throughout the pendency of the arbitration proceeding.'” Both parties moved for summary disposition. The trial court granted respondents’ motion for summary disposition, agreeing with the reasoning of the arbitration panel’s majority opinion.