OFFICIAL PUBLICATION OF THE LAW ENFORCEMENT EDUCATION PROGRAM
The Police Officers
VOLUME 29, NUMBER 3 • FALL 2019
ON THE INSIDE: Union welcomes new Labor Rep – Pg. 2 7 awarded for Outstanding Service – Pg. 4-5 Michigan Police memorial opens – Pg. 6-7 Executive Committee elections – Member News
New Labor Rep ready to share POLC’s ‘strong union presence’ with members VOLUME 29, NUMBER 3 • FALL 2019
Law Enforcement Education Program (LEEP©) 667 E. Big Beaver Road, Suite 205, Troy, MI 48083. (248) 524-3200 • FAX: (248) 524-2752 POLC membership: www.polc.org
CHAIR: Steve McInchak Gibraltar Police Dept.
VICE CHAIR: Brian McNair Chesterfield Township Police Dept.
Collin Birnie Flint Police Dept.
Berrien County Sheriffs Dept.
Grand Rapids Communications
Battle Creek Police Dept.
Jackson Police Dept.
Bloomfield Hills Public Safety Dept.
Bloomfield Township Police Dept.
DIRECTOR, Robert Figurski Warren PD (Retired)
— By Jennifer Gomori, POJ Editor
etired Chesterfield Township Police Sgt. Jim O’Connor knows the importance of having the Police Officers Labor Council’s guidance in negotiations and settling labor disputes. The new POLC/ GELC Labor Representative plans to share that knowledge to support other public employees. “I don’t think our department would be where it is today without taking the steps we did,” O’Connor said. “Nothing was going to be given to us and we made the neces- Labor Rep. Jim O’Connor sary changes happen.” A POLC member since 1993, O’Connor served with Chesterfield Township Police Department until 2016 for a total of 23 years. He was a local POLC steward with Chesterfield Police Officers Association for four years and Chesterfield Township Command Officers Association for nine years. “I was a POLC member for my entire career once I became full-time in Chesterfield,” he said. “We had some interesting chiefs and we always needed a strong union presence to preserve what we had. It’s gotten better over the years.” He rose through the ranks as a firearms instructor, use of force instructor, evidence technician, Detective, Road Patrol Sergeant and Administrative Sergeant. He served four years in the Army’s 82nd Airborne Division and four years with Michigan National Guard. After obtaining his Criminal Justice associate degree at Kirtland Community College, he began his law enforcement career as a Marine Deputy in Clare County in 1992. Jim juggled three part-time Police Officer positions at Village of Armada, Richmond and Chesterfield Township until he was hired full-time by Chesterfield. “I started out as on ORV and Marine Deputy in Clare County. It’s when you give people tickets when they’re having fun,” O’Connor joked about his first law enforcement position which focused on recreational vehicle violations. The 53-year-old is taking over Labor Rep. Scott Blackwell’s units as Blackwell goes to work as a representative on the west side of the state. When O’Connor heard about the opening at POLC/GELC, he decided to put his years of negotiations and representation experience to work directly for the Unions. He said he enjoyed working with his comrades “to make the department better as a whole.” Besides, he said, “My wife said I was too young to not have a job.” O’Connor knows what it takes to be an effective labor representative. “It’s pretty much the same traits as being a police officer … your honor and your integrity and knowing who you work for.” d
Lloyd Whetstone PUBLICATIONS Executive Editor: Jennifer Gomori
“I don’t think our department would be where it is today without taking the steps we did,” O’Connor said of his time as a local POLC steward.
The Police Officers Journal
W.H.A.L.E. program provides critical information to first responders — By Jennifer Gomori, POJ Editor with excerpts from WJRT
hen Montcalm County first responders arrived at the scene of a deadly head on collision on M-91 in October 2018, they had no idea who the unharmed toddler strapped inside the car seat was. As they scrambled to extricate the driver from her vehicle, they removed the child and, after evaluating her condition, worked to calm her. Both were taken to Kelsey Memorial Hospital in Lakeview. The driver, later identified as local Tri County Schools kindergarten teacher Shelly Gilman, was pronounced dead at the hospital. The toddler was Shelly’s 19-month-old granddaughter, Hudson. “She was later identified by someone working in the ER who knew the family,” said Montcalm County Sheriff Mike Williams. “Had that information been available to first responders that would’ve been very helpful. When you’re a first responder and you have a child in distress … that can be a comforting thing to refer to a child by their own name. That type of thing can be really impactful for people who are victims in these crashes.” So when Sheriff Williams heard about the We Have a Little Emergency (W.H.A.L.E.) program a couple months later, his ears perked up. “I’m part of Stanton Rotary. We had a guest speaker who talked about the W.H.A.L.E. program,” Williams said. “This fit the exact scenario we had. In a nutshell, it’s a child car seat identification kit with a sticker that goes on the bottom of the car seat and stickers that go on the sides of the seat.” W.H.A.L.E. provides emergency personnel with the child’s identity, emergency contacts and medical information. Montcalm County Central Dispatchers, a POLC-represented unit, had their hands tied as far as reaching Hudson’s parents or other relatives and being able to obtain her medical history at the scene. “Dispatchers are that lifeline for all the first responders,” Williams said. “Dispatch is helping facilitate any type of communication for people on scene and people elsewhere (such as family), so when they have a crisis at a scene … this is something that would help them do their job.” “I’m excited for it because it’s really going to help dispatch, especially if there’s a (young) child,” said Amy Thomas, Montcalm County Central Dispatch 911 Director. “Anytime you have an accident like that you’ll have children that are scared. A lot of times, it’s really when the first responder feels helpless. It will expedite the process to find a guardian for the child.” “Without (the W.H.A.L.E. program) there would be a lot of digging … trying to figure out who the registered owner is,” Thomas said. “When an accident happens, there’s a lot of other things going on. We have got to make sure you have all the rescue and ambulances you need.” By having someone the child knows come and get that child in
W.H.A.L.E. ID stickers provide emergency personnel with critical information for young children involved in car accidents.
those critical situations, it frees up first responders to focus on helping the injured. “I’ve been in Dispatch for 20 years,” Thomas said. “It’s a really stressful thing. When first responders have this, it will take a lot of stress off the dispatch center to find someone quickly, especially for a child who is not able to talk.” The kits are provided free to the public, but cost the department some money, so Williams reached out to Shelly’s husband, Bob Gilman, who kicked off the campaign with a $1,000 donation. Other community members have donated over $1,500. “He was very enthusiastic about doing this,” Williams said. “Shelly was a teacher in Sand Lake. She was very well known in the community and it was a big loss.” W.H.A.L.E. kits are available at the Sheriff’s Office or Central Dispatch in Stanton. Montcalm EMS carry them, and the Sheriff’s Office is handing them out at festivals. Williams said he shared the kits with area departments, including Wyoming Police, another POLCrepresented unit. “I’ve sent a couple to people outside the county as well,” Williams said. “We’re trying to spread the word. The kits instruct parents what to do. There’s nothing to register. It’s just easy and a good information source if unfortunately, that need ever arises.” d For more information about W.H.A.L.E., email Sheriff Williams at mwilliams @montcalm.us or call (989) 831-7590. You can also see more about the W.H.A.L.E. program on Facebook.
The Police Officers Journal
7 POLC officers honored for putting th — By Jennifer Gomori, POJ Editor with excerpts from nbc25.news
ix Jackson Police Officers and a Mt. Morris Township K9 Officer were recognized for bravery by putting their lives on the line to save others. POLC Outstanding Service Awards (OSA) were presented to the Jackson Officers Aug. 27, 2019 during the Police Officers Labor Council/General Employees Labor Council (POLC/GELC) Conference at Grand Traverse Resort and Spa in Traverse City. The Mt. Morris Officer received his award in September. They were nominated by fellow POLC Officers for the annual awards.
JACKSON OFFICER PATRICK ROSE AND SGT. WESLEY STANTON
On Jan. 28, 2019, two Jackson Police Officers protected a woman whose armed ex-boyfriend attempted to forcefully enter her apartment in the middle of the night. The 29-year-old suspect shot at three officers, who returned fire, eliminating the threat. The officers were dispatched around 2:45 a.m. to Southridge Park Housing Complex on Warwick Court after a female caller told police her ex-boyfriend, who regularly carries a handgun, was banging on her doors and windows, attempting to get into her apartment. When Officer Patrick Rose arrived, the suspect fled on foot in the yards outside the complex, despite Rose’s orders to stop. Officer Rose tactically searched for him using his handgun-mounted flashlight. The suspect emerged from between buildings and fired at Rose, who returned fire, striking the suspect in the back. Rose took cover while Sgt. Wesley Stanton and a now former Jackson Officer, responded from the opposite direction where they
found the suspect lying face down on the ground holding his gun. They gave several commands to show his hands. The suspect got up and fired at the former Jackson Officer. Sgt. Stanton and the officer returned fire, eliminating the threat. Jackson Officer Marc Smith commended the officers for their quick response locating and stopping the suspect. “Officer Rose did an outstanding job in approaching a dangerous situation in a tactical manner,” Smith wrote in his nomination letter for OSA Awards. “The suspect was clearly lying in wait to ambush Officer Rose. In today’s world of police work, the decision to shoot someone as they are running away can be a difficult choice to make. Officer Rose absolutely made the correct decision.”
JACKSON OFFICERS TRENT MARCUM, ANDREW FUGATE, MICHAEL MCCORD AND JUSTIN THORESEN On Feb. 2, 2019, Jackson Police Officers Trent Marcum, Andrew Fugate, Michael McCord and Justin Thoresen responded to a call regarding a suicidal/homicidal suspect threatening suicide by cop on the 100 block of W. Mansion Street around 6:30 p.m. When the 29-year-old suspect realized police were outside the home, he began screaming he had a gun and was going to kill his mother. Police heard the mother also calling for help. Officer McCord went around the side of the house and looked through a window where he saw the suspect holding his mother in a headlock with a knife in his hand. Officer Marcum made the decision that entering the home was necessary to protect the mother.
Photo by Dave Millar, Photographic Impressions North
From left, Jackson Police Officers Michael McCord, Patrick Rose, Trent Marcum (center), Sgt. Wesley Stanton and Officer Justin Thoresen received Outstanding Service Awards at the POLC/GELC Annual Conference Aug. 27, 2019 in Traverse City.
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The Police Officers Journal
eir lives on the line to save others Officer Fugate kicked in the door and all four officers entered. The man, who still had his mom in a chokehold with his left hand, while holding a knife in his right hand, was yelling at officers to shoot him and that he was going to kill his mother. After officers ordered the suspect to drop the knife, he raised it Photo courtesy of Jackson Police Department as if to stab his moth- Jackson Officer Andrew Fugate er. Officer Marcum fired at the suspect. He went down and his mother got away. Police discovered she had been stabbed in her upper chest, right side, which punctured her lung, and hand, before officers entered the home. “The decision to make entry in order to protect the female was heroic,” wrote Officer Smith in his nomination letter. “Officers entered under the belief that the suspect was armed with a gun based upon his own statements. It is highly plausible that had entry not been made at that moment, the suspect would have killed his mother.” “The professionalism displayed by officers following the shooting was equally as impressive,” Smith wrote. “Aid was immediately rendered to the suspect as well as the mother.” Both were taken to Henry Ford Allegiance Health for treatment.
away from the burning home,” said Mt. Morris Township Police Det. Sgt. Michael Veach. Paramedics arrived seconds after they escaped and treated the 78-year-old victim for smoke in® halation. She had soot in her mouth and throat, but no burns. Thanks to Paulic’s heroic actions, the victim survived the fire after originally being admitted to the hospital in critical condition, Veach said. “What’s crazy about this job is you never know when it’s going to happen or what’s going to happen,” Blake told nbc25news. “My actions weren’t because I was law enforcement or a first responder. It’s human nature to save somebody else. What kind of person would I be if I stood back and did nothing?” Firefighters searched the home, but there were no other people or animals inside. Mt. Morris Township Fire officials said the fire was caused by a space heater in the woman’s bedroom. The house was a complete loss. “Officer Paulic demonstrated tremendous bravery for risking his own life to enter the burning structure to save the life of a complete stranger,” Veach wrote in his nomination letter for the OSA Award. d
MT. MORRIS K9 OFFICER BLAKE PAULIC
On Nov. 19, 2018, Mt. Morris Township K9 Officer Blake Paulic rescued an unconscious elderly woman trapped inside her burning home. Officer Paulic was first on the scene of a house fire at 5413 Farmhill Road around 11:45 p.m. It was unknown if the home was occupied. Paulic noticed the home was well-kept and there was a garbage can at the road, so he rushed to the back of the home where the flames were coming from. Through thick smoke, he saw what appeared to be a motionless human hand. With the homes’ doors and windows covered in Armour Guard security bars, Paulic pulled as hard as he could on the rear door slider, which was slightly ajar. Paulic was able to free the bars, and without pausing to consider his own safety, he ran inside. “Through thick smoke and tremendous heat from the flames, Officer Paulic then pulled the elderly female from the burning home and carried her to the safety of the front yard
Photo courtesy of Mt. Morris Township Police Department
Mt. Morris Township K9 Officer Blake Paulic is receiving an Outstanding Service Award for rescuing an elderly woman, who was trapped inside her burning home.
The Police Officers Journal
Michigan Law Enforcement Officers Memorial in Lansing open to public — By Jennifer Gomori, POJ Editor with excerpts from MLEOM.org
early 500 people came out for the reveal of the long awaited Michigan Law Enforcement Officers Memorial Monument (MLEOM), coined “The Sentinels,” near Veterans Memorial Park, at the corner of Allegan Street and Butler Boulevard in downtown Lansing on July 27, 2019. Family members of fallen officers, members of the law enforcement community, Michigan Attorney General Dana Nessel and the public joined the Michigan Law Enforcement Officers Memorial Monument Fund Commission for the monument dedication ceremony. The ceremony included a reading of 588 fallen officers’ names which are inscribed on 10 sentinels. To locate a particular officer’s name at the memorial, visit the MLEOM website and click on Fallen Officers. Names are arranged alphabetically by department on the website. Within each department, the names are in chronological order by their end of watch date. Each name listing includes their sentinel number and whether the officer’s name is on the east or west side of that Sentinel. The “Sentinel” design by David Milling, of David Milling & Associates/Architects of Ann Arbor was modified in 2017. It includes 10 sentinels — 4’ X 8’ metal panels engraved with the names of fallen officers — ‘standing vigil over the memories of those lost.’ “It’s amazing and phenomenal. We really appreciate that this has finally come to be,” said Michigan State University Police Captain Mary Johnson, an MLEOM Commissioner. “People are going there to reflect and find the names of people they know and have worked with.” For Johnson, the name she was looking for was her brother’s, Michigan State Police Trooper Rick L. Johnson. Trooper Johnson’s
end of watch was May 6, 2000. The 35-year-old died shortly after he was struck by a car during a traffic stop on I-94 in Van Buren Township. “Every time you go down there it’s like a reunion because you run into people you know,” Captain Johnson said. “It’s such a great purpose. There’s so many people going down there to use that as a place to remember and come to some peace. They’re still dealing with the loss of the people they worked with … and family members.” MLEOM Commission Chairperson Lin Emmert’s son, Grand Haven Department of Public Safety Officer Scott Flahive’s name is also on one of those Sentinels. Officer Flahive was 28-years-old when he was shot and killed Dec. 13, 1994 after stopping a vehicle containing an escapee from the Ottawa County Jail. “It looks awesome, particularly at night, as the panels are lit from within,” Emmert said. The monument project began after Gov. Jennifer Granholm signed PA 177 into law in 2004, creating the Michigan Law Enforcement Officers Memorial Monument Fund. In early 2018, Gov. Rick Snyder signed a supplemental appropriation for a $1.18 million grant to build the Memorial Monument, pushing the 14-year fund-raising efforts past the goal needed to begin construction. The first line of duty officer death recognized is Deputy Marshal Charles Ring of Saginaw PD in 1864. Over 200 Detroit Police Officers names are inscribed, including three who died in 2018. Detroit Police Lieutenants and Sergeants Association made a $1,500 donation at the dedication ceremony, where each of the fallen officers’ names were read. Construction is nearly complete with some landscaping and lighting to be finalized, however, donations will continue to be needed for site maintenance. “New names will need to be added, and that is an expensive project because the panels need to be removed with heavy equipment in order to add names,” Emmert said. “We’d also like to have an on-site and/or online way for people to locate their officer(s).”
Photos courtesy of MLEOM Commission
The Michigan Law Enforcement Officers Memorial can be seen day or night.
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The Police Officers Journal
The Commission is also looking into the possibility of an educational/historical component housed in the Library of Michigan across the street from the memorial. d To donate online with a credit card, visit www.mleom.org, then go to DONATE and click on DONATE TODAY or call (517) 241-4083. Make check or money order donations to Michigan Law Enforcement Officers Memorial and mail to: Michigan Dept. Technology, Management, & Budget/Financial Services, Cashiering Unit/Law Enforcement Memorial, P.O. Box 30681, Lansing MI 48909-8181.
Photos courtesy of MLEOM Commission
Honor Guardsmen stood at watch during the dedication ceremony July 27. Below: Lefty, the granddaughter of Michigan State Police (MSU) K9 Gero, sits in front of one of the 10 panels listing fallen officers’ names, which are illuminated at night in different colors. MSU Captain Mary Johnson worked with Gero as a K9 Officer. Lefty posed near Johnson’s brother’s name, fallen Michigan State Police Trooper Rick L. Johnson.
For more information about the memorial monument, visit www.mleom.org.
Photo by Brian Harris
Family members and co-workers look for the names of their fallen officers on the panels.
COMMUNITY HERITAGE Photo courtesy of Owosso Police Officer Kevin Pettigrew
Owosso Police Officers Brian Jenkins (from left) and Mike Olsey, who are represented by the POLC, were among the Owosso Police Officers participating in the Curwood Festival Parade in June. The weekend City heritage festival honors the life of James Oliver Curwood, an American action-adventure writer and conservationist who built an 18th century French chateau style castle in the City of Owosso on the banks of Shiawassee River in 1922. The castle was his studio, which he willed to the City after his death.
Fall Contract Settlements
Lapeer City Police Officers
— As reported by POLC/GELC Labor Representatives
City of Corunna Police
• New five-year agreement expires June 30, 2024. • Wages: 1% effective July 1, 2019. 3% effective July 1, 2020. 3% effective July 1, 2021. 3% effective July 1, 2022. 2% effective July 1, 2023. • Health Care: Established Health Care Savings Plan through MERS effective July 1, 2019. A retroactive lump sum of $1,300 for each year of service starting from their date of hire to July 1, 2019 will be paid by the Employer into the plan. A mandatory $50 contribution to the Health Care Savings Plan by the Employee is matched by the Employer every two-week pay period. • Bargaining Team: Duane Sailor aided by POLC Labor Rep. John Stidham.
® 8 • FALL 2019
• New four-year agreement expires June 30, 2023. • Wages: 3% effective July 1, 2019 for Patrol, Sergeants & Lieutenants. 3% effective July 1, 2020 for Sergeants & Lieutenants. 2.5% effective July 1, 2020 for Patrol. 3% effective July 1, 2021 for Sergeants & Lieutenants. 2% effective July 1, 2021 for Patrol. 2.5% effective July 1, 2022 for Patrol, Sergeants & Lieutenants. *The new wage scale addressed the differential between top paid Patrol Officers and Sergeants and Lieutenants which needed to be increased. *The 6-month probationary starting wage for the Sergeants pay scale was removed, also increasing the Sergeants starting wage. • Fringe Benefits: Remove language allowing only one Officer to take Vacation Time per shift. Increase Vacation Time to 25 days after 20 years of service. Employees receive 20 percent of the first 500 hours of unused Sick Time upon retirement. Shift premium increases from 40 cents per hour to 50 cents per hour. • Health Care: Add language to include retiree health insurance to survive the expiration of the collective bargaining agreement. • Bargaining Team: Jason Miner and A.J. Wetzel aided by POLC Labor Representative Hal Telling. d
Union members re-elect 5 Executive Committee members at conference
ust over half of the POLC/GELC Executive Committee seats were up for election during the Annual POLC/GELC Meeting & Labor Seminar in Traverse City. Five members of the committee were re-elected by the union membership during the Labor Meeting Aug. 28, 2019. They ran unopposed. Re-elected to two-year terms were Steve McInchak of Gibraltar Police Department; Collin Birnie of Flint Police Department; Scott Eager of Battle Creek Police Department; Jeff Gormley of Bloomfield
Hills Public Safety Department; and John Huizdos of Bloomfield Township Police Department. Executive Committee members then re-elected McInchak as Chairman and Brian McNair of Chesterfield Township Police Department as Vice Chairman. The remaining four board membersâ€™ seats will be up for election next year when their two-year terms expire. Only full-time Union employees are eligible to hold elective office. d
Photos by Dave Millar, Photographic Impressions North
Above: POLC/GELC Executive Committee members are: (from left) John Huizdos, Vice Chairman Brian McNair, Chairman Steve McInchak, Mike DeKam, Jennifer Flick, Scott Eager, Kyle Culbertson, Jeff Gormley and Collin Birnie. At left: Re-elected to the Committee for two-year terms are (from left) John Huizdos, Steve McInchak, Scott Eager, Jeff Gormley and Collin Birnie.
State Supreme Court retiree — By POLC Legal Staff Michael Akins
n May 30, 2019, the Michigan Supreme Court issued an unfortunate decision that will result in widespread and potentially disastrous effects for retired public employees throughout the state. In Kendzierski v Macomb County, the Court fundamentally established a bright-line rule whereby public employers are free, following the expiration of an applicable collective bargaining agreement, to alter or discontinue retiree healthcare benefits unless the agreement upon which retirees rely for their benefits contains express terms indicating that such benefits continue, unaltered, beyond the life of the agreement. This rule is a drastic departure from the reality in which collective bargaining agreements in this state were negotiated for decades. In issuing its decision, the Court’s majority ignored not only that longtime reality and the clear intent behind nearly all of the retiree health care provisions contained in the agreements from that era, but also fundamental tenants of public-sector labor law in Michigan and applied a standard that simply did not exist at the time those agreements were executed. The result is an unjust windfall for public employers at the expense of retired public employees. In Kendzierski, a class of retired Macomb County employees filed a breach of contract suit following unilateral changes to their benefits by the County. The case involved multiple, expired collective bargaining agreements pursuant to which the employees retired. The changes were made while new CBAs were in effect from 20082010. The subject retirees alleged they were entitled to lifetime, unalterable retiree healthcare benefits under the terms of the respective agreements. Each of the disputed, expired CBAs in Kendzierski contained general 3-year durational clauses and provided for retiree healthcare benefits “after eight (8) years of service” in the event that the employee “leaves employment because of retirement and is eligible for and receives benefits under the Macomb County Employees’ Retirement Ordinance.” Spouses were also covered until the death of the retired employee but could continue receiving benefits following the death of the retiree so long as the retiree elected that option. Retirees and/or their spouses were also required to apply for Medicare when they reached age 65 and if so awarded, the County’s responsibility would be limited to supplemental coverage. Lastly, retirees and their spouses would have coverage suspended during periods of “gainful employment.” Again, the question before the courts was “whether the CBAs granted plaintiffs vested rights to lifetime and unalterable retirement healthcare benefits.” The trial court concluded retirees were entitled to lifetime healthcare benefits, but the County could make reasonable changes to those benefits. On cross-appeal, the Court of Appeals affirmed in part and reversed in part, holding retirees were entitled to lifetime benefits and the County could not alter the benefits with10 • FALL 2019
out consent of the retirees. Michigan’s Supreme Court then heard oral arguments following the County’s application for leave to appeal. The Court’s majority opinion in Kendzierski, authored by Justice Markman and joined by Justices Zahra, Viviano, and Clement, held retirees were not entitled to lifetime or unalterable retiree healthcare benefits because the right to those benefits expired along with the other terms of the CBAs pursuant to the general 3-year durational clauses. The Court’s holding was based on its finding that the agreements in question did not contain express language indicating benefits were to continue unaltered for life or that benefits were subject to a different expiration date than the remainder of the agreements. Without sufficient evidence of such intent on the face of the CBAs, the unambiguous 3-year durational clause was applicable to retiree healthcare provisions. Thus, retirees’ right to healthcare benefits did not survive expiration of the agreements and the County was free to modify or discontinue the benefits without consequence. In so holding, the Court rejected the Court of Appeals’ analysis and finding the agreements contained ambiguity as to the duration of retiree healthcare benefits and therefore extrinsic evidence could be properly considered to determine the meaning of the contractual language. According to the Court, the Court of Appeals made improper inferences in concluding the terms of the agreements were ambiguous. Had the Court of Appeals applied ordinary principles of contract law, the Court reasoned, it could not have reasonably determined that the retiree healthcare provisions were subject to a different end-date. In other words, when ambiguity is not inferred, the entirety of each of the disputed contracts clearly and unambiguously expired after 3 years. The inferences in question have been the subject of much litigation over the past 5 or so years. Back in a 1983 private-sector case before the U.S. Court of Appeals for the Sixth Circuit, a various set of inferences were employed to hold that retiree healthcare benefits bestowed through a collective bargaining agreement vested for life. See: UAW v Yard-Man, Inc., 716 F 2d 1476 (6th Cir. 1983). The so-called “Yard-Man inferences” presumed lifetime benefits vested unless there was a clear indication otherwise. That legal framework continued unabated for Michigan privatesector workers until 2015, when the inferences were overruled by the U.S. Supreme Court in M&G Polymers USA LLC v Tackett, 574 US (2015). The stated reasoning in Tackett was the question of whether agreements provided for vested lifetime healthcare benefits should be decided through what the Court viewed as ordinary principles of contract interpretation and not judicially-imposed inferences. Under Tackett, vesting of lifetime benefits must be discernable from the text, not presumed unless refuted by the text. The Michigan Supreme Court adopted Tackett’s framework the following year in Arbuckle v Gen. Motors LLC, 499 Mich 521 (2016).
healthcare ruling devastating Just last year, the Supreme Court again struck down a Sixth Circuit decision in which the Appeals Court found contractual language ambiguous with respect to vested retiree healthcare benefits. In CNH Industrial N.V. v Reese, 583 US (2018), the Sixth Circuit found the agreement in question was “silent” as to whether the benefits vested for life. It also determined certain provisions rendered the contract’s general durational clause ambiguous as it pertained to retiree healthcare benefits. Finding ambiguity, the Circuit Court referred to evidence outside the four-corners of the contract, extrinsic evidence, to discern the parties’ intent. It ultimately held the benefits were for life. The Supreme Court reversed the Sixth Circuit in Reese and remanded the case to the trial court for further proceedings. The Court noted that the Appeals Court consciously relied on similar contractual terms as those “used to “infer vesting” under YardMan” on the basis that “[t]here is surely a difference between finding ambiguity from silence and finding vesting from silence.” The Supreme Court concluded any use of such inferences in these cases, even those used to find ambiguity, was precluded by the rule in Tackett that “ordinary contract principles” be applied to the issue of vesting. According to the Court, inferring vesting or ambiguity that is not supported by the text is “not a valid way to read a contract.” Thus, the general durational clause is controlling unless there is clear evidence to the contrary. Significantly, the majority in Reese indicated the Sixth Circuit erred by failing to “point to any explicit terms, implied terms, or industry practice ...” as evidence the disputed contract “vested health care benefits for life.” The Court’s statement, however muddied by the bulk of the opinion, suggests evidence of this nature could be properly considered and applied to find ambiguity and the Sixth Circuit merely failed to do so in that case. It was within this changing legal landscape that the Michigan Supreme Court considered the lower courts’ rulings in Kendzierski. Although it was not required to do so, the Court’s majority indicated it was following the decision in Reese “because it is fully consistent with Michigan’s own principles of contract law.” Despite its declaration, the Court seemingly ignored the possibility left open by the Court in Reese that implied terms and/or industry practice could lead to a proper finding of ambiguity. Certainly, the Court of Appeals engaged in such analysis when it read the retiree healthcare stipulations as suggesting the benefits extended beyond the life of the agreements, thereby resulting in more than one plausible meaning. Regardless, the Court’s majority rejected that notion on the outlandish basis that all threshold events, i.e. reaching Medicare age, spousal benefits upon death of the retiree, and periods of retiree reemployment, could conceivably occur within the 3-year
duration of the agreement. On that basis, it held the language was unambiguous with respect to expiration of benefits. For its part, the dissenting opinion, authored by Justice McCormack and joined by Justice Bernstein, concurred with the majority’s understanding of the legal framework, but rejected its application. Instead of issuing a ruling for either the retirees or the County, the dissent would have seen fit to send the question of vesting to the jury, which would untangle the ambiguous language with the help of extrinsic evidence. Contrary to the majority, the dissent distinguished the agreement in Reese on the basis that it “included language that specifically tied the promise of retiree healthcare to the agreement’s general durational clause.” Without that express correlation, the dissent would have turned to “implied terms” or “industry practice” to discern whether the parties may have “intended those benefits to extend beyond the contract’s general durational period.” Further, the dissent rightfully pointed out that ambiguity might arise where the agreement “links eligibility ... to an event that would almost certainly occur after the expiration of the agreement ...” or “by reason of inconsistency, obscurity or an inherent uncertainty of the language adopted.” And whereas both Tackett and Reese “left open the possibility a CBA’s promise of retiree healthcare might be ambiguous notwithstanding the presence of a general durational clause,” the dissent surmised it is unlikely the majority’s hardline opinion “leaves open that possibility of ambiguity.” To the dissent’s points, the majority offered some guidance. Specifically, the majority indicated a CBA with a general durational clause could be found ambiguous if the agreement also contained language that “tied benefits to an event that could only occur or would almost certainly not occur until after the expiration of the CBA.” For example, the majority referenced with approval Quesenberry v Volvo Trucks, 651 F 3d 437 (4th Cir. 2011), which found ambiguity fundamentally on the basis the subject VEBA could not possibly run out of money during the life of the applicable CBA. The majority rejected the dissent’s characterization that its ruling conditions “a finding of ambiguity on whether the agreement contained language expressly disclaiming application of the general durational clause to the promise of retiree healthcare,” or requires “express language in the CBAs providing a different duration for retiree healthcare.” Instead, according to the majority, the ruling requires “something more than a provision that ties benefits to an event that could conceivably occur after the expiration of the CBA in order to counter a general durational clause.” It should be noted the majority grossly misstated longstanding public-sector labor law in this state when it declared “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.” The truth is PERA demands terms and conditions of employment continue post-expiration unless and until Continued on page 13
Member News Arbitration As reported by POLC/GELC Legal Staff
SUSPENSION REDUCED TO WRITTEN REPRIMAND
A Berrien County Sheriff’s Department Corrections Officer’s twoday suspension was reduced to a written reprimand after the POLC filed a grievance on his behalf. The Employer issued the two-day suspension because the Officer failed to leg shackle an inmate he was guarding Aug. 14, 2018. That inmate attempted to flee from a hospital after treatment. The Officer testified the arrestee, who had ingested a packet of methamphetamines, appeared lethargic, complied with directions and showed no aggression while at the hospital. As he was being discharged, the arrestee was handcuffed in front. Staff pushed his wheelchair while the Corrections Officer and another Deputy walked nearby. The inmate bolted from the wheelchair and the Corrections Officer quickly apprehended the inmate without incident. The Arbitrator noted policy requires inmates to be leg shackled while outside a secure area if they are felons, but that the Officer had no knowledge of the arrestee’s criminal history. Policy also requires the use of leg shackles if the inmate poses a danger to officers or the public. The Arbitrator concluded deputies have discretion to use leg shackles when assessing whether inmates pose a threat to safety. However, because the Corrections Officer’s decision led to the inmate fleeing and being quickly apprehended, the Arbitrator imposed the written warning instead of the two-day suspension. d
SUSPENSION REDUCED TO WARNING WITH BACK PAY
A Macomb County Sheriff’s Department Corrections Officer’s fiveday suspension was reduced to a written warning with back pay for time lost after the POLC filed a grievance on his behalf. The Employer issued the suspension Sept. 26, 2018 for policy violations stemming from the delayed release of an inmate. The Corrections Officer had received a written warning or reprimand for unrelated reasons during the 2 years prior to the events in question, but otherwise no prior discipline of note. Another Deputy, who was assigned to inmate release duties in a separate part of the Jail Office, was issued a written reprimand for his involvement. The Corrections Officer worked as the Writ Officer in the Jail Office processing transports to/from court, medical appointments, and mental health facilities. Release-side deputies retrieve court dispositions and match them to inmate files to determine what needs to be done next. The County’s investigation focused solely on the two deputies. 12 • FALL 2019
Each were issued suspensions, but the ReleaseSide Deputy’s suspension was reduced to a written reprimand by the County. The inmate had been in and out of Macomb Jail and Caro mental health facility over the course of a year. In February 2018, a court disposition arrived suggesting the inmate had been again committed to Caro. Although it was not truly a court order, the Release-Side Deputy incorrectly changed the inmate’s status in the computer to reflect he had been formerly committed to psych. In March 2018, a new disposition arrived indicating the inmate was to be released on time-served. The Release-Side Deputy wrote “commit to psych” on the new court disposition and does not recall what he did with the file. He believes that he could not locate the file and made the notation so he could remember to discuss it with the Writ Side Deputy. Neither deputy believes that conversation ever took place. The inmate remained in the jail’s psych ward until the end of July 2018 when someone discovered his release had been ordered in March. He attempted repeatedly to convince deputies assigned to the ward that he should have been released. A Deputy assigned to afternoons testified he called the Jail Office several times for a status update and was assured the inmate was waiting for a bed in Caro. Eventually, the inmate convinced another deputy working nights to check his file again and someone in the office reviewed the computer files to uncover the release order. The file was found in the writ-side filing cabinet, where commitments to psych files should be kept. An arbitration hearing was held March 6, 2019. The County’s case was based fundamentally on the file being found on the writ-side of the office and incorrect conclusions made by the Sergeant who wrote the report. The Union argued the Employer violated the WritSide Deputy’s due process rights by failing to conduct a full and fair investigation and failing to present his accusers for cross-examination. The Union also argued the Employer did not meet its burden of proving the Writ-Side Deputy violated its policies or that the penalty was appropriate under the circumstances. The Arbitrator acknowledged the Union’s due process argument and credited the Union’s evidence wherever it conflicted with the County’s hearsay evidence. She concluded a rule violation occurred, but without evidence warranting a five-day suspension. The Arbitrator held there was not sufficient evidence the rule violation contributed significantly to the delayed release. She concluded the Employer did not prove just cause for the suspension and reduced it to a written warning with back pay for the lost time. d
New Units Baraga County Sheriff’s Deputies, Corrections Officers dissatisfied with status quo service — By Jennifer Gomori, POJ Editor
araga County Deputy Sheriff’s and Corrections Officers were concerned their old union was a little too comfortable with status quo. As the time for contract talks drew near, they decided to move forward with the Police Officers Labor Council leading the way. “We’ve been with POAM as long as I’ve been here, which is 15 years,” said Deputy Joe Brogan. “Things had run their course. We weren’t really satisfied with the representation we were getting.” Brogan said the Deputy Sheriff’s Association and the County Corrections Association were contacted by Lloyd Whetstone, POLC Membership Services representative, earlier in the year asking how they liked their existing representation. “We kind of kicked it around for a few months then reached out and set up a meeting,” Brogan said. “We weren’t really pleased with how things were going when we had a meeting with (POLC Labor Rep.) Hal (Telling) and Lloyd. I guess the rest is history.” Both units brought in the POLC by unanimous vote in July with their contracts set to expire Sept. 30, 2019. “They seemed they were eager and motivated and they were confident in their union,” Brogan said of POLC representatives. “The
things we felt were lacking with our old union seemed like strong points with the POLC. The guys in our unit said we need somebody who’s going to be a little more aggressive when it comes to bargaining.” ® “There was too much comfort level with where we were at,” Brogan said of POAM representation. “There wasn’t an eagerness for them to bargain. It was kind of like ‘this is what the county says they have, and that is what we’re going to do.’ There wasn’t a lot of fight left.” Brogan said the units will be seeking wage increases and would like to bridge contract language gaps. “There was a discrepancy between the Deputies’ contract and the Corrections’ contract in which the CO’s had the ability to comp their overtime and Deputies don’t,” Brogan said. “We want to get everyone on the same page.” Another language issue the groups would like to address is retiree health care insurance. Currently, retirees are provided health insurance between ages 59 and 62. Employees would like to see that coverage language effective from the date of retirement, which could be earlier than age 59. d
Supreme Court Ruling continued from page 11
amended through negotiations for a subsequent agreement or impasse is reached. For that reason, employees who retiree between contracts should be subject to the terms of the expired agreement and retiree healthcare benefits should not be altered while negotiations are ongoing. At this time, it is unclear whether the decision in Kendzierski will undermine that axiom of Michigan’s public-sector labor law, but it is the POLC’s current position these benefits cannot be changed during ongoing negotiations for a subsequent agreement without violating PERA. Unfortunately, the rights and benefits of existing retirees is not a mandatory subject of bargaining under PERA. It is a permissive subject over which public employers and unions must agree to bargain. While the terms of an expired CBA continue post-expiration, once the new CBA is in effect those terms are null and void unless otherwise vested. As such, if the benefits are not vested through the expired agreement, and if the parties do not agree on terms in a subsequent contract that somehow extend those benefits past the expiration date of the prior agreement, the existing retirees’ rights and benefits will hinge exclusively on the language of the expired CBA. Where does that leave thousands of existing retirees affected by the Kendzierski ruling? It depends on the language of the CBAs under which they retired, as well as any subsequent CBAs that include
provisions covering retirees already in existence at the time the contract was executed. If the CBA’s terms clearly grant lifetime and unalterable retiree healthcare benefits, those benefits are vested for life. If the CBA contains a general durational clause but is silent about whether particular benefits extend beyond expiration, the agreement must be analyzed in light of Kendzierski. If the agreement cannot be factually distinguished from the agreements considered in that case, then benefits can be modified or discontinued by the employer. The POLC intends to continue its longtime fight for the rights of working people in Michigan. To that end, the POLC will work with its active membership to bargain for vested retiree health care benefits for future retirees. For those expired agreements synonymous with the contracts in Kendzierski, while the POLC cannot insist on bargaining over the issue, it will explore any and all legal measures to convince public employers to engage also in bargaining over the rights and benefits of existing retirees. For instance, pressure from constituents, such as the retirees affected by the Supreme Court’s upheaval of Michigan’s legal landscape, could very well be the key to convincing elected officials this matter is best addressed at bargaining. Moreover, the POLC will work with organizations, such as the Michigan Association of Police Organizations (MAPO), to enact legislative changes to protect retiree healthcare in this state. The POLC stands with the public-sector retirees of Michigan! d
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