By Jim Cline and Stephen Hatton
In Saginaw County Sheriff’s Office, a Michigan arbitrator ruled that the Saginaw County Sheriff’s Office had not violated its CBA by refusing to pay a corrections deputy retroactive pay owed to the police officers in the same bargaining unit.
The arbitrator determined that the deputy, who held several police officer certifications and had attended the police academy, had not engaged in police work for the purposes of the CBA, since he was employed as a corrections sergeant and not a law enforcement sergeant.
The Command Officers Association of Michigan represented both the Law Enforcement Sergeants and the Corrections Sergeants employed by Saginaw County Sheriff’s Office. The parties negotiated a CBA beginning on December 15, 2020, after the party’s earlier contract had expired in September of 2019. The Law Enforcement Sergeants negotiated to receive retroactive pay for the period of October 1, 2019, to December 14, 2020, for anyone who was “312 eligible”, while the Corrections Sergeants negotiated for a signing bonus instead.
The Corrections Officer in the case had graduated from the police academy in Michigan over 20 years prior, had taken the Oath of Office with the Saginaw County Sheriffs, and had held two Michigan State certifications typically held by law enforcement personnel.
The Command Officers Association argued that the Corrections Officer was entitled to receive the retroactive pay as a 312 eligible employee. The Union analogized the Corrections Officer’s certifications to attorneys who had passed the bar exam; since individuals who passed the bar become attorneys, individuals who receive the law enforcement certifications should become 312 eligible.
On the other hand, the County argued that the Corrections Officer was not a 312 eligible employee because Michigan State law required officers to actually work in critical service law enforcement positions to be 312 eligible, and anything short of that was not enough to meet the criteria. Since the officer was working in the Corrections Department in the capacity of corrections officer for his entire career, he was never 312 eligible, and therefore was not entitled to the retroactive pay.
The arbitrator agreed with the County’s arguments, citing Public Act 312 and Michigan cases interpreting the law. The arbitrator determined that the CBA between the parties unambiguously referenced the definition of police officer in Public Act 312. According to the arbitrator, 312 officers must be subject to the hazards of police work, and their employer must be performing a critical-service – neither of which were met here:
Grievant has not been a road deputy. He is not a Law Enforcement Sergeant. He has not been certified to be on the road. He is not 312 eligible, as he is not engaged in police work or subject to the hazards thereof. He is a jail/corrections sergeant. Under the Court of Appeals decisions, jail/corrections sergeants have not been recognized to be 312 eligible, as the duties are of a non-critical nature.
Although the Corrections Officer graduated from the law enforcement academy, and was sworn and certified by the State early in his career, the arbitrator explained that he was not engaged as a police officer for the purposes of the statute at any time during his career while working in the Corrections division The arbitrator also dismissed the Union’s position that it would have specified what “312 eligible” meant in the contract had it known that the County would interpret it strictly according to the statute. According to the arbitrator:
Subjective intent not communicated to the other party cannot pierce the veil of ambiguity in drafting. . . . Uncommunicated understandings do not create bargaining history.
Since the arbitrator found that the County had not violated the CBA by paying the Corrections Officer the signing bonus instead of retroactive pay, the arbitrator dismissed the Union’s grievance.
The arbitrator seems to have overlooked and failed to analyze the key provision at issue — whether the employee was “eligible” for police officer work. He corrected notes that a party’s subjective intent is not pivotal — it’s the objective evidence that matters. But then he fails to explain why the objective term “eligible” wouldn’t have trumped the party’s assignment practices.
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