POAM v.

LEELANAU COUNTY SHERIFF AN OPPORTUNITY MISSED

By E. FRANK CORNELIUS, Ph.D., J.D.
Copyright E. Frank Cornelius 2010 All Rights Reserved

TABLE OF CONTENTS I. II. III. IV. V. A MISGUIDED OPINION ..1 THE ARBITRATION UNDER REVIEW 4 THE APPELLATE COURT IGNORED ESTABLISHED LAW GOVERNING AN ARBITRATORS AUTHORITY TO RETAIN JURISDICTION 5 THE APPELLATE COURT MISCHARACTERIZED THE ARBITRATORS REASONS FOR RETAINING JURISDICTION ...8 THE APPELLATE COURT EXCEEDED ITS AUTHORITY IN FAILING TO UPHOLD THE ARBITRATORS FINDING THAT GRIEVANTS FITNESS WAS AT ISSUE .10 A. THERE WAS AMPLE EVIDENCE TO SUPPORT THE ARBITRATORS FINDING 10 B. THE APPELLATE COURT FAILED TO REALIZE THAT THE FITNESS EXAM WAS REMEDIAL IN NATURE 12 C. THERE IS AMPLE AUTHORITY FOR THE ARBITRATOR TO REQUIRE A FITNESS EXAM, INCLUDING THAT FOUND IN THE LABOR CONTRACT ITSELF 14 THE COURT OF APPEALS BREACHED ITS DUTY TO ORDER ENFORCEMENT OF THE COST-SHARING PROVISIONS OF THE CONTRACT AND FAILED TO FOLLOW ITS OWN PRECEDENT REQUIRING THE AWARD OF INTEREST ON BACK PAY . 16 THE APPELLATE COURTS TREATMENT OF THE ISSUE OF GRIEVANTS REINSTATEMENT TO PATROL DUTY IS CONFUSING AND WRONG .18 THE ROAD NOT TAKEN ...21 I. A MISGUIDED OPINION In an earlier article, The Authority of a Michigan Sheriff To Deny Law Enforcement Powers to a Deputy,1 the author urged the Michigan Court of Appeals in Police Officers Assn

VI.

VII. VIII.

The author received his Ph.D. in Mathematics from the University of Washington and his J.D. from the University of Michigan. His publications are listed on his websites, arbitrator.org and efrankcornelius.com. 1 E. Frank Cornelius, The Authority of a Michigan Sheriff To Deny Law Enforcement Powers to a Deputy, 25 T. M. Cooley L. Rev., 433 (2008), available at http://www.scribd.com/doc/16719170/The-Authority-of-a-MichiganSheriff-to-Deny-Law-Enforcement-Powers-to-a-Deputy.

of Michigan v. Leelanau County and Leelanau County Sheriff,2 to reconsider its holdings on a sheriffs authority to deny law enforcement powers to a deputy. In that article, the author argues that the court of appeals rulings on the subject conflict with the Michigan Supreme Courts holdings in PERA3 cases.4 Instead of addressing that and other serious issues which the case presented, the court of appeals made no mention of the article, appears to have failed to read the material provided to it, and issued an unpublished per curiam opinion fraught with errors of fact and law.5 The court summarized its decision as follows: Plaintiff, Police Officers Association of Michigan, appeals as of right from an order of the trial court granting summary disposition in favor of defendants, Leelanau County and the Leelanau County Sheriff. This action stems from the trial courts review of an arbitrators order in a grievance brought pursuant to the parties collective bargaining agreement. Because the trial courts determination that defendants could not be compelled to return Leelanau Sheriffs Department Deputy Bruce Beeker to actual law enforcement duties was not decided by the arbitrator and was not an issue for the trial court to review, we vacate only that portion of the trial courts order. However, because the trial court did not exceed its mandate to review only the arbitrators contractual authority, did not err in finding that the arbitrator exceeded his contractual authority in retaining jurisdiction over a fitness for duty issue and awarding interest and half the cost of continuing arbitration to plaintiff, we affirm the trial courts order in all other regards. We affirm in part and vacate in part.6 Among the mistakes made by the appellate court are these: The court erred in holding that the only issue presented in the arbitration was whether the grievant deputy sheriff had been terminated for just cause. The courts statement of the issue was incomplete, as it failed to address any
No. 285132, 2009 Mich. App. LEXIS 2344; 2009 WL 3757442 (Mich. Ct. App. Nov. 10, 2009). Public Employment Relations Act, MICH. COMP. LAWS ANN. 423.201-217 (West 2008). 4 Cornelius, supra note 1, at 454-462. 5 2009 Mich. App. LEXIS 2344; 2009 WL 3757442. 6 2009 Mich. App. LEXIS 2344, at *1-2; 2009 WL 3757442, at *1. The underlying arbitration, Police Officers Assn of Michigan and County of Leelanau, Michigan and Its Sheriff, is reported at 07-2 Lab. Arb. Awards (CCH) 3926 (2007) (Cornelius, Arb.) (initial opinion); 07-2 Lab. Arb. Awards (CCH) 3927 (2007) (Cornelius, Arb.) (supplemental opinion). The author was the arbitrator.
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remedial issues. The court erroneously held that the arbitrator had no authority to retain jurisdiction, despite that fact that the very rules under which the arbitration was conducted expressly authorized him to do so. The court also misrepresented the arbitrators reason for retaining jurisdiction, wrongly suggesting that it was for the purpose of reviewing a fitness for duty examination of the grievant. The court ignored its own precedent and wrongly ruled that the arbitrator had no authority to award interest on back pay. The court erred when it decided, Because the trial courts determination that defendants could not be compelled to return Leelanau Sheriffs Department Deputy Bruce Beeker to actual law enforcement duties was not decided by the arbitrator and was not an issue for the trial court to review, we vacate only that portion of the trial courts order. There is much in the opinion to suggest that the court failed to read the material presented to it, such as appellees brief. For example, consider the following statement in the opinion: [W]e do note that because the trial court and the arbitrator here were without authority to decide Beekers employment duties based on the labor agreement as part of this action, if Beeker so chooses, he may file a new grievance challenging the substance of his employment responsibilities.7 In truth, Deputy Beeker had already filed a grievance which effectively challenged his employment responsibilities, a fact pointed out to the court no fewer than seven times in appellees brief.8 In an opinion dated March 6, 2008, arbitrator Kenneth P. Frankland concluded that the issue was not arbitrable, because relief was foreclosed by Natl Union of Police Officers Local 502-M v. Board of Commissioners for the County of Wayne9 and
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2009 Mich. App. LEXIS 2344, at *12; 2009 WL 3757442, at *4. Appellees Brief on Appeal, dated September 23, 2008, at 5, 16, 17, 18, 21, 23, 37, No. 285132, 2009 Mich. App. LEXIS 2344; 2009 WL 3757442 (Mich. Ct. App. Nov. 10, 2009) [hereinafter Appellees Brief]. Arbitrator Franklands opinion was Exhibit 1 of Appellees Brief at vi. A redacted copy of the Frankland opinion can be found at http://www.gvsu.edu/cms3/assets/A710F777-E74C-F8BD-F645CFB2BE41D80C/Mi__Griev__ Awards /Frankland5.pdf. 9 286 N.W.2d 242 (Mich. Ct. App. 1979).

Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger10, two of the county sheriff cases of which the author urges reconsideration in his earlier article. As will be seen, there also is much to suggest that the court did not read the arbitrators opinions. II. THE ARBITRATION UNDER REVIEW According to the court of appeals, grievant was discharged because of inappropriate contacts with a criminal suspect and conduct on [the suspects] behalf [that] showed an appalling disregard for [Beekers] duties and responsibilities as a law enforcement Deputy. This quotation is taken from the sheriffs letter terminating grievant, dated April 19, 2006, and marked as Ex (i.e., Employer Exhibit) 10 at the arbitration hearing.11 The arbitrator concluded that grievants conduct was not substantively different from that held lawful in Sponick v. Detroit Police Dept. and ordered his reinstatement with back pay, subject to passing a fitness for duty examination.12 The arbitrator also ordered grievant to undergo counseling.13 The arbitrator retained jurisdiction to resolve any issues which may arise over implementation of this award.14 When grievant failed his initial fitness exam, which was conducted by the same Ph. D. psychologist who previously had examined and counseled him,15 the sheriff fired grievant a second time.16 That act was a clear violation of the arbitrators directive, that [i]f Grievant finally is determined to be unfit for duty, then he should be treated as terminated as of the date

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333 N.W.2d 73 (Mich. Ct. App. 1983). 2009 Mich. App. LEXIS 2344, at *2; 2009 WL 3757442, at *1. Ex 10 is listed as item 4.m in the Index of Exhibits in Appellees Brief at vi. Ex 10 is mislabeled as Jx 10 in the arbitrators opinion, 07-2 Lab. Arb. Awards (CCH) 3926, at 3212. 12 Cornelius, supra note 1, at 433-435 (citing Sponick v. Detroit Police Dept., 211 N.W.2d 674 (Mich. Ct. App. 1973)). 13 07-2 Lab. Arb. Awards (CCH) 3926, at 3225-3226. 14 2009 Mich. App. LEXIS 2344, at *3; 2009 WL 3757442, at *1. 15 07-2 Lab. Arb. Awards (CCH) 3926, at 3225. 16 2009 Mich. App. LEXIS 2344, at *3; 2009 WL 3757442, at *1.

of that final determination and paid through that date.17 Grievants union appealed to the arbitrator who, after corresponding with counsel, issued a supplemental opinion in which he reiterated what he had stated initially, that any dispute over grievants fitness for duty was to be resolved by medical personnel, as specified in the collective bargaining agreement.18 The arbitrator also ordered that grievant be paid interest on back pay, dating from his second firing,19 and rejected the employers objection to the arbitrators continuing jurisdiction, ruling that they were responsible for half the costs of the continuing arbitration, as the labor contract called for splitting arbitration costs.20 The arbitrator again retained jurisdiction.21 Grievants union sued in Leelanau County Circuit Court to enforce the arbitrators awards. The trial court ruled that the arbitrator did not have authority to retain jurisdiction and refused to enforce the award of interest on back pay or to require the employers to pay half the costs of the supplemental proceedings. The trial courts assertionthat the Arbitrator did not have the authority under the collective bargaining agreement to order the Sheriff to restore [the Deputys] law enforcement powers. Nor does this Court have the authority to enter such an order.formed the subject matter of the authors earlier article.22 This appeal followed.23 III. THE APPELLATE COURT IGNORED ESTABLISHED LAW GOVERNING AN ARBITRATORS AUTHORITY TO RETAIN JURISDICTION In the arbitrators opinions, he cited How Arbitration Works24 no fewer than 12

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07-2 Lab. Arb. Awards (CCH) 3926, at 3226 (emphasis added). 07-2 Lab. Arb. Awards (CCH) 3927, at 3226-3227, 3229-3230, 3233. 19 Id. at 3230, 3233. 20 Id. at 3228, 3233. 21 Id. at 3233. 22 Cornelius, supra note 1, at 433. For that articles summary of the arbitration, see id. at 434-435. 23 Id. at 433 & note 4. 24 FRANK ELKOURI & EDNA A. ELKOURI, HOW ARBITRATION WORKS (6th ed. 2003).

times,25 even describing it as the most authoritative arbitration treatise.26 Had the court of appeals bothered to consult that treatise, it would have found fully four pages devoted to the subject of retained jurisdiction.27 The learned tome explains: The arbitration process does not automatically end in those cases where a grievance has been sustained and where a remedy has been ordered. Questions over the application of a remedy can arise after an arbitration award has been issued, which is why arbitrators may decide, at their discretion, to retain limited jurisdiction to resolve any such remedial issues. One arbitrator maintains that in virtually all cases of grievance arbitration where a remedy is called for, labor arbitrators ought to routinely retain jurisdiction of the award solely for the purpose of resolving any disputes among the parties regarding the meaning, application, and implementation of that remedy. He adds: The retention of power would be sua sponte and not dependent on the express agreement of the parties. Another arbitrator goes further and adds: an arbitrator is derelict in his duty in a discharge or seniority case if he fails to reserve jurisdiction to settle back pay or relative placement issues.28 Moreover, had the court bothered to consult the 2008 Supplement to How Arbitration Works, it would have learned that At the Fifty-Seventh Annual Meeting of the National Academy of Arbitrators, a former president of the Academy recommended that arbitrators retain jurisdiction for the purpose of resolving any disputes that may arise from the meaning, application, or implementation of an award. Retention of jurisdiction over an award is not forbidden by law, as is clear by the fact that courts routinely send awards back to the arbitrator who issued the award, [d]espite the spectre of functus officio. In fact, the Court of Appeals for the Seventh Circuit deemed an arbitrators ability to retain jurisdiction over disputes regarding the implementation of an award so well established that it upheld the issuance of sanctions under Rule 11 of the Federal Rules of Civil Procedure against a party who claimed that the arbitrator was barred by functus officio from retaining jurisdiction to address damage issues.13

07-2 Lab. Arb. Awards (CCH) 3926, at 3214 (twice), 3215 (twice), 3217-3218, 3221, 3222, 3226; 07-2 Lab. Arb. Awards (CCH) 3927, at 3230 (four times). 26 07-2 Lab. Arb. Awards (CCH) 3927, at 3230. 27 ELKOURI & ELKOURI, supra note 24, at 333-337. 28 Id. at 333-334 (footnotes omitted, underlining added).

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For arbitrators, the controversy appears to have been put to rest in a 2007 amendment to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes allowing discretionary retention of remedial jurisdiction unless otherwise prohibited by the parties agreement or applicable law, even if one party objects. ______________________________________________________________
CUNA, 443 F.3d at 564-65 (There is an abundance of case law both in this circuit and other circuits that recognizes the propriety of an arbitrator retaining jurisdiction over the remedy portion of an award. The case law on this issue is clear, and CUNAs counsel should have 29 known that its position is groundless.).
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The full title of the code, as exhibited on the website of the Federal Mediation and Conciliation Service (FMCS), is in fact Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the: National Academy of Arbitrators Federal Mediation and Conciliation Service American Arbitration Association As Amended and Effective May 200730 The Leelanau arbitrator was selected by the parties under FMCS procedures, as expressly required by the collective bargaining agreement,31 and the arbitration was assigned FMCS case No. 06-55815. Nothing in the parties agreement or applicable law prohibited the arbitrator from retaining jurisdiction. Indeed, in the very case upon which the trial court relied most heavily in its opinion,32 the arbitrator there wrote in pertinent part: [J]urisdiction shall be reserved for a period of sixty (60) days in order that the parties, if desired, may consider whether or not under all the facts and circumstances, the Grievant met his duty to mitigate damages.33 Under the FMCS code, appellees objection to the arbitrators continuing jurisdiction was
Id., ALAN MILES RUBEN, ed., 2008 SUPPLEMENT 139-140 (some footnotes omitted, underlining added). http://www.fmcs.gov/assets/files/Arbitration/may07CodeofProfessionalforInternet.doc. 31 AGREEMENT BETWEEN LEELANAU COUNTY & LEELANAU COUNTY SHERIFF & POLICE OFFICERS ASSOCIATION OF MICHIGAN 5.8 (Dec. 11, 2003) (on file with author). 32 Police Officers Assn of Mich. v. County of Livingston, No. 102038 (Mich. Ct. App. June 30, 1988) (per curiam) [hereinafter Livingston County]; see Cornelius, supra note 1, at 435. 33 Livingston County, slip. op. at 2 (emphasis added).
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groundless.34 The court of appeals simply ignored the governing FMCS rules. Even if the appellate court was unfamiliar with the Elkouri treatise and the FMCS code, a simple search of common legal databases would have uncovered numerous cases upholding an arbitrators retention of jurisdiction. In Sterling China Co. v. Glass, Molders, Pottery, Plastics & Allied Workers Local No. 24, the Sixth Circuit enforced an arbitrators supplemental award made years after the initial award, rejecting the claim of the employer, which refused to participate in the supplemental proceedings, that the arbitrator lacked jurisdiction.35 Other cases from within the Sixth Circuit alone include Intl Assn of Machinists and Aerospace Workers v. T.V.A.;36 Nida v. Plant Protection Assn Natl;37 Adamo v. Hotel, Motel, Bartenders, Cooks and Restaurant Workers Union Local 24;38 McIsaac v. Warren General Employees Retirement System;39 and Hauser v. Hauser.40 See also Quick & Reilly, Inc. v. Jacobson, in which the federal district court sanctioned attorneys $25,000 for bringing a groundless suit in failed attempt to upset an arbitration award.41 The court of appeals ruling on the arbitrators retention of jurisdiction was its most egregious error. IV. THE APPELLATE COURT MISCHARACTERIZED THE ARBITRATORS REASONS FOR RETAINING JURISDICTION The court of appeals characterized the arbitrators purpose in retaining jurisdiction as

2009 Mich. App. LEXIS 2344, at *13; 2009 WL 3757442, at *5. 357 F.3d 546, 551, 554 (6th Cir. 2004). 36 155 F.3d 767, 770 (6th Cir. 1998) (The arbitrator also retained jurisdiction over the implementation of the award. The arbitrator again retained jurisdiction over implementation of the award.). 37 7 F.3d 522, 524 (6th Cir. 1993) (The arbitrator retained jurisdiction to resolve any future disputes concerning implementation of the award.). 38 861 F.2d 719; 1988 U.S. App. LEXIS 14697, at *2, *7, *11; 1988 WL 116875, at *1, *3, *5 (6th Cir. 1988) (per curiam) (the arbitrator retained jurisdiction). 39 2005 Mich. App. LEXIS 275, at *1-2; 2005 WL 292717, at *1 (Mich. Ct. App. Feb. 8, 2005) (per curiam) (The arbitrator retained jurisdiction for the purpose of resolving any disputes concerning the back pay award.). 40 1998 Mich. App. LEXIS 788, at *2-3; 1998 WL 1988883, at *1 (per curiam) (the arbitrator retained jurisdiction). 41 126 F.R.D. 24, 27-28 (S.D. N.Y. 1989).
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being over a fitness for duty issue.42 However, the arbitrator gave only two reasons for retaining jurisdiction, neither of which pertained to the fitness for duty exam. Indeed, the arbitrator could not possibly have been involved in any fitness dispute, inasmuch as the collective bargaining agreement itself specified a procedure for resolution of such disputes by medical personnel. In particular, the arbitrator wrote: Any disagreement as to Grievants fitness for duty is to be resolved as provided in 24.1.43 The court therefore was wrong when it stated that the arbitrator retained jurisdiction to preside over the fitness for duty exam. Actually reading the arbitrators opinion would have avoided that mistake. The procedure in the collective bargaining agreement is set forth in the courts opinion, making the courts mistake even more glaring, as the plain language of the contract clearly shows that the arbitrator has no involvement with a fitness exam: The County may require that employees submit to physical and medical tests and examinations by a County appointed doctor when such tests and examinations are considered necessary to the County in maintaining a capable work force, employee health and safety, etc., provided, however, that the County will pay the cost of such tests and examinations. In the event there is a disagreement between the employees physician and the Countys physician concerning the employees ability to do his job or return to his job, at the written request of the employee, the employee will be referred to a mutually agreeable physician for examination whose decision shall govern the matter. The County and the employee shall share the cost of the physician.44 This procedure actually was followed,45 albeit not until the arbitrator had issued a supplemental opinion, reiterating that the parties were to follow the contractual procedure.46
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Police Officers Assn of Mich. v. Leelanau County, No. 285132, 2009 Mich. App. LEXIS 2344, at *2, *14; 2009 WL 3757442, at *1, *5 (Mich. Ct. App. Nov. 10, 2009). 43 07-2 Lab. Arb. Awards (CCH) 3926, at 3225. 44 2009 Mich. App. LEXIS 2344, at *8; 2009 WL 3757442, at *3 (emphasis added). 45 2009 Mich. App. LEXIS 2344, at *3; 2009 WL 3757442, at *1. 46 07-2 Lab. Arb. Awards (CCH) 3927, at 3229-3230.

The arbitrators reasons for retaining jurisdiction were two-fold. Having ordered counseling for grievant, the arbitrator explained one of his reasons for retaining jurisdiction: The counseling plan, including cost estimates and an indication of probable insurance coverage, is to be submitted to the arbitrator for approval, to ensure that it is not unduly expensive. 47 The other reason pertained to the calculation of back pay, the most common reason for retaining jurisdiction: The rules as to mitigation of damages are to be followed. Elkouri & Elkouri, supra, @ 1224-1228. The calculations may be complicated if Grievant was accustomed to moonlighting or otherwise working two jobs. Office of the Sheriff, 107 LA 972, 24 LAIS 3328 (Arb 1996). The parties are urged to be reasonable and agree upon the amount owed Grievant. If they return to the arbitrator on this issue and he finds that one of them has been unreasonable, that party will pay.48 Obviously neither reason had anything to do with the fitness exam, as simply reading the arbitrators opinion would have revealed. V. THE APPELLATE COURT EXCEEDED ITS AUTHORITY IN FAILING TO UPHOLD THE ARBITRATORS FINDING THAT GRIEVANTS FITNESS WAS AT ISSUE V.A. THERE WAS AMPLE EVIDENCE TO SUPPORT THE ARBITRATORS FITNESS FINDING At the arbitration hearing, the sheriff himself testified that he tried to change grievants behavior through counseling and twice sent him to a psychologist, for which treatment the county and its insurer paid. In addition to the testimony of the sheriff and undersheriff, the employers introduced four exhibits bearing upon grievants conduct: Ex 11, documenting a 3-day suspension for conduct unbecoming an officer.49 Ex 12, an order of suspension, directing grievant to make an appointment for a fitness

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07-2 Lab. Arb. Awards (CCH) 3926, at 3226. Id. 49 Exhibit 4.m of Appellees Brief at vi.

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for duty examination.50 Ex 13, a letter of reprimand for conduct prejudicial to the reputation and good name of the Department.51 Ex 14, a letter of reprimand for overly aggressive conduct, ordering Grievant to participate in a coaching/decision making session.52

The arbitrator also relied upon his own observation of grievants demeanor.53 If grievants fitness were not at issue, it is unclear why the employers introduced a record of his previous fitness exam. The employers post-hearing arbitration brief54 was a veritable lament over grievants refusal to accept counseling, and his failure was proffered as a reason for his termination: Due to the severity and the multiplicity of the offenses, along with Grievants prior work record, including the Employers efforts to correct the Grievants poor decision-making through training and counseling, the Sheriff terminated the Grievants employment on April 19, 2006. EX 10.55 [T]he Grievant was sent for psychological counseling at the Employers expense. EX 12.56 It should be noted in the notice of discipline for that incident, EX 12, the Employer instructed the Grievant to advise command staff of anything it could do to assist the Grievant in the performance of his duties. The Grievant also was advised to inform the Sheriff and Undersheriff of any personal or professional needs that could be provided to him by the Employer. The Grievant never has availed himself of those offers.57 [T]he Grievant had been strongly disciplined previously for sex harassment and psychologically counseled, as well.58
Exhibit 4.n of Appellees Brief at vi. Exhibit 4.o of Appellees Brief at vi. 52 Exhibit 4.p of Appellees Brief at vi. 53 07-2 Lab. Arb. Awards (CCH) 3926, at 3225 (In the short time the arbitrator had to observe Grievants demeanor at the hearing, he came across as distant, detached, spacey, not quite all there. His sometimes erratic behavior and inconsistent job performance seem almost bipolar or schizoid (in a colloquial sense, inasmuch as the arbitrator is no clinician.)). 54 Exhibit 3 of Appellees Brief at vi, entitled Employers Post-Hearing Brief and dated February 9, 2007. 55 Employers Post-Hearing Brief at 19-20 (emphasis added). 56 Id. at 6 (emphasis added). 57 Id. (underlining in original, italics added). 58 Id. at 26 (emphasis added).
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[I]t should be remembered that time and time again, the Employer has attempted to work with Grievant, offering counseling, training and other assistance.59 Incredibly, the appellate court ruled that grievants fitness was not an issue, even though a Ph. D. psychologist actually found him to be unfit after an initial examination, and even though the sheriff steadfastly refused to reinstate grievant to patrol duty based upon that initial finding of unfitness. Even the trial court recognized that the sheriff was concerned about grievants fitness: Based on the fact that he received a psychological evaluation in 1999 followed by counseling and was again suspected of having mental health issues not only by the Sheriff but also by the Arbitrator and he was found not fit for duty by the first examiner makes the Sheriffs decision not to assign him law enforcement duties anything but irresponsible, arbitrary or capricious. 60 Moreover, on appeal the fitness issue was moot, inasmuch as the examination process had been completed and grievant ultimately had been found to be fit. The appellate court grievously erred by entangling itself in the fitness issue. V.B. THE APPELLATE COURT FAILED TO REALIZE THAT THE FITNESS EXAM WAS REMEDIAL IN NATURE Although acknowledging that case law is clear that an arbitrator is the sole factfinder in arbitration,61 the court of appeals blithely ignored that tenet and sided with the trial court in ruling that the sole issue presented was the propriety of grievants discharge. There are several obvious defects in the courts reasoning. Because no transcript was made, the court could not possibly discern precisely what issues were raised before the arbitrator at the hearing. In reality, the parties declined the arbitrators invitation to enter into a stipulation
Employers Post-Hearing Brief at 27 (emphasis added). Police Officers Assn of Mich. v. Leelanau County, No. 07-7669-CL, slip op. at 14 note 5 (Leelanau County Cir. Ct. Apr. 14, 2008) (order granting summary disposition) (emphasis added). 61 Police Officers Assn of Mich. v. Leelanau County, No. 285132, 2009 Mich. App. LEXIS 2344, at *11; 2009 WL 3757442, at *4 (Mich. Ct. App. Nov. 10, 2009) (citing Service Employees Int'l Union Local 466M v. Saginaw, 689 N.W.2d 521, 525 (Mich. Ct. App. 2004)).
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of issues, thus leaving to him the task of determining the issues presented.62 Had the court consulted the Elkouri treatise, it would have learned that the same deference is due an arbitrators determination of the issues before him as is his interpretation of the collective bargaining agreement: The parties may not know precisely what the issue is at the outset of the hearing. Even when they have signed a submission stating the issue, it may be ambiguous and in need of clarification. If the issue stated by the parties is not broad enough to encompass the entire dispute, an arbitrator may ask the parties for additional authorization. Formal pleadings are not used in arbitration but, at some point, the issue to be resolved by the arbitrator must be specifically stated. Courts generally give the same deference to an arbitrators interpretation of the statement and scope of the issue submitted as they give to the arbitrators interpretation of the collective bargaining agreement.63 Even if there is but a single ultimate issue in a case, there invariably are numerous subsidiary issues that must be resolved before the ultimate issue can be reached. Further, even if the ultimate issue in Leelanau was whether grievant was terminated for just cause, a complete statement of that issue would be: Whether grievant was terminated for just cause and, if not, what should the remedy be? The court completely overlooked remedial issues. The arbitrators opinion leaves no doubt that the question of grievants fitness for duty was addressed as part of the remedy, as the entire discussion of that question is contained under the heading The Remedy.64

In the authors experience as an arbitrator, parties rarely enter into stipulations of fact, law, or other issues. Regardless, he begins each hearing by inquiring about stipulations. When the parties do stipulate, their stipulations are recited in his opinion. See, e.g., Ludington News Co. and Michigan UFCW/Drug Employers Pension Fund, 9 Employee Benefits Cas. 1913 (Cornelius Arb. 1988); PACE Local 731 and Mead Corp., 105 L.R.P. 50252 (Cornelius Arb. 2001); OPEIU Local No. 268 and UAW Local No. 1853, 04-1 Lab. Arb. Awards (CCH) 382, 32 L.A.I.S. 306, 104 L.R.P. 42690 (Cornelius Arb. 2004); St. Petersburg Assn of Firefighters, Local 747 IAFF and City of St. Petersburg, Florida, 09-1 Lab. Arb. Awards (CCH) 4525, 109 L.R.P. 15362 (Cornelius Arb. 2009); Intl Paper Co., 127 Labor Arb. Rpt. (BNA) 564 (Cornelius Arb. 2010). 63 ELKOURI & ELKOURI, supra note 24, at 297 (footnotes omitted). See also Township of Wyckoff v. PBA Local 261, 976 A.2d 1136, 1143 (N.J. Super. Ct. 2009). 64 07-2 Lab. Arb. Awards (CCH) 3926, at 3225-3226.

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V.C. THERE IS AMPLE AUTHORITY FOR THE ARBITRATOR TO REQUIRE A FITNESS EXAM, INCLUDING THAT FOUND IN THE LABOR CONTRACT ITSELF There can be no doubt that an arbitrator has authority to order a fitness examination. Again, had the appellate court consulted the Elkouri treatise, the arbitration Bible, it would have learned the following: Employees discharged for misconduct somehow connected with physical or psychological disability sometimes have been ordered reinstated on the condition that they be physically and/or mentally fit for the job as determined by physicians or psychiatrists, as the case may be.65 A search of legal databases would have uncovered cases in which fitness evaluations were included as part of the remedy, such as Town of South Windsor v. South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO;66 In re the Matter of a Certain Arbitration Between: Brown County Sheriffs Dept. v. Brown County Sheriffs Dept. NonSupervisory Employees Assn;67 Milas v. Labor Assn of Wis., Inc.;68 Dept. of Corrections v. Penn. State Correction Officers Assn;69 Pelletier v. City of Warwick, Warwick Police Dept.;70 Ohio State Highway Patrol;71 City of Isanti.72 Neither the trial court nor the appellate court had any basis for questioning the arbitrators authority to order a fitness for duty exam.
Elkouri & Elkouri, supra note 24, at 1238 (footnote omitted); see also MARVIN F. HILL, JR. & ANTHONY V. SINICROPI, REMEDIES IN ARBITRATION (2nd ed. 1991) 147-148. 66 770 A.2d 14, 21 (Conn. 2001) ([H]e shall provide a current fitness for duty statement provided by a medical expert of his choice and shall continue counseling as determined by said professional .); 67 533 N.W.2d 766, 766, 768 (Wis. 1995) (stating that the arbitrator reduced deputy sheriffs discipline from termination to 30-day suspension, recommended that sheriff require deputy to seek medical and psychological help, and ordered deputy to obtain certification of fitness for duty prior to his return from suspension). 68 571 N.W.2d 656, 658 (Wis. 1997) (The arbitrator modified the Law Enforcement Committees decision, treating the time following the deputy sheriffs dismissal as unpaid suspension and ordering the deputy sheriff to be returned to work after passing medical and psychological examinations to determine his fitness for duty.). 69 923 A.2d 1212, 1216 (Pa. Commw. Ct. 2007) (The arbitrator reduced [the correction officers] discipline to a five-day suspension and ordered him to submit to a fitness for duty evaluation by a licensed psychiatrist before returning to work.). 70 2008 R.I. Super. LEXIS 4, *8 (hearing committee compelled police sergeant to undergo fitness for duty exam). 71 96 Lab. Arb. Rpt. (BNA) 613 (Bittel Arb. 1991) (officers reinstatement conditioned upon passing fitness for duty exam and undergoing counseling). 72 120 Lab. Arb. Rpt. (BNA) 461 (Daly Arb. 2004) (award of reinstatement included counseling for policeman).
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Michigan law is clear that any reasonable remedy not expressly prohibited is permitted. In Police Officers Assn of Michigan v. County of Manistee, the court of appeals itself wrote: [T]he arbitrator was free under the agreement to conclude that while Bests misconduct served as just cause for discipline, it did not amount to just cause for discharge. The arbitrator was also empowered to fashion an appropriate level of discipline for the violations found. Id. at 603 (observing that the power to fashion a remedy is a necessary part of the arbitrators jurisdiction unless withdrawn from him by specific contractual language between the parties or by a written submission of issues which precludes the fashioning of a remedy).73 The Leelanau court cited, but did not follow, the Manistee court.74 Neither the contractual language nor the parties written submission withdrew from the Leelanau arbitrator the power to fashion a fitness for duty remedy. The Manistee court also recited the universal litmus test for the validity of an arbitrators award, whether it draws its essence from the contract:75 It is well settled that judicial review of an arbitrators decision is limited. A court may not review an arbitrators factual findings or decision on the merits. Rather, a court may only decide whether the arbitrators award draws its essence from the contract.76 The Leelanau court conceded that the arbitrator drew his fitness remedy from the contract itself. After setting out the contracts fitness for duty section, 24.1, the court stated: The arbitrator relied on this section of the agreement in requiring Beeker to have a fitness examination and to receive counseling. Even though the section only refers to physical examinations and testing, defendants agreed at a motion hearing before the trial court that the labor agreement supported the examination process.77
73

645 N.W.2d 713, 717 (Mich. Ct. App. 2002) (citing Bloomington v. Local 2828 of the American Federation of State, Co. & Municipal Employees, 290 N.W.2d 598, 603 (Minn. 1980)). 74 Police Officers Assn of Mich. v. Leelanau County, No. 285132, 2009 Mich. App. LEXIS 2344, at *5, *13; 2009 WL 3757442, at *2, *4 (Mich. Ct. App. Nov. 10, 2009). 75 ELKOURI & ELKOURI, supra note 24, at 114-116. 76 645 N.W.2d at 716. 77 2009 Mich. App. LEXIS 2344, at *8; 2009 WL 3757442, at *3.

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The appellate court further noted that the trial court did not interpret or dispute that 24.1 authorizes a fitness for duty examination.78 Thus, despite the fact that the arbitrator drew his remedy directly from the contract, the appellate court refused to follow established law and order the award enforced. VI. THE COURT OF APPEALS BREACHED ITS DUTY TO ORDER ENFORCEMENT OF THE COST-SHARING PROVISIONS OF THE CONTRACT AND FAILED TO FOLLOW ITS OWN PRECEDENT REQUIRING THE AWARD OF INTEREST ON BACK PAY The correct resolution of the jurisdictional issue would, of course, have correctly resolved the issue of appellees obligation to pay for half the costs of the supplemental arbitration proceedings. Perhaps in an effort to obscure its mistakes, the appellate court misstated the sequence of events: The first fitness for duty examination determined that Beeker was unfit for his duties as a law enforcement officer. Defendants terminated his employment. Beeker objected to the results of this examination and requested a second examination in accord with the provisions of the labor agreement. The second examination found Beeker fit for duty. At defendants request a third examination was performed. The third examination found Beeker fit for duty. Defendant returned Beeker to employment but assigned him to staff a newly created complaint desk rather than return him to road patrol. The arbitrator later issued a supplemental opinion ordering defendants to comply with the third fitness for duty evaluation by reinstating Beeker to the payroll, paying interest on the back pay owed, and paying half the costs of the continuing arbitration.79 In point of fact, the third and tie-breaking exam did not take place until August 4, 2007,80 almost two months after the arbitrator issued his supplemental opinion on June 11, 2007.81 Had he not issued that later opinion, grievant would not have been afforded a third exam, grievants second termination would have remained in effect, and grievant would not
78 79

2009 Mich. App. LEXIS 2344, at *9; 2009 WL 3757442, at *3. 2009 Mich. App. LEXIS 2344, at *3-4; 2009 WL 3757442, at *1. 80 Appellees Brief at vi, Exhibit 20. 81 07-2 Lab. Arb. Awards (CCH) 3927, at 3226.

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have received back pay after his second firing. It is difficult to understand why the employers should not be compelled to pay their share of the costs of the arbitrators supplemental opinion, inasmuch as they followed it, at least in part. The appellate courts failure to reverse the trial courts ruling on interest is equally inexcusable, as grievant was not paid back pay for the period following his second firing on March 23, 2007,82 until he was put back on the payroll on August 27, 2007,83 a period of over 5 months. The purpose of the arbitrators interest award was to compensate grievant for the gap between his second unlawful discharge and his return to the employers payroll, the very purpose for which the remedy of interest is designed. Interest on back pay is addressed in the Elkouri treatise: The modern view is that the award of interest is within the inherent power of an arbitrator, and in fashioning a make-whole remedy it appears that a growing number of arbitrators are willing to exercise the discretion to award interest where appropriate. Thus, one arbitrator, after noting that interest was seldom requested and cautioning that interest should not be used as punishment, concluded that because of the time value of money, the awarding of interest was necessary to make a grievant whole. Interest also has been granted where there are special circumstances such as an employers dilatory conduct on unnecessary delay in the grievance process, or bad faith.84 In the arbitrators initial opinion, he ordered that [g]rievant is to be made whole.85 The arbitrator cited the foregoing discussion from Elkouri in his award of interest, reminding the parties: In concluding his Opinion, the arbitrator cautioned:
82 83

Appellees Brief at 11-12. Id. at 15. 84 ELKOURI & ELKOURI, supra note 24, at 1219-1221 (footnotes omitted, emphasis added); see also Falstaff Brewing Corp. v. Intl Brotherhood of Teamsters, 479 F. Supp. 850, 862 (D.N.J. 1978) (Interest is within the traditional inherent powers of an arbitrator to award in order to make an employee whose rights have been violated reasonably whole.). 85 07-2 Lab. Arb. Awards (CCH) 3926, at 3226.

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The parties are urged to be reasonable and agree upon the amount owed Grievant. If they return to the arbitrator on this issue and he finds that one of them has been unreasonable, that party will pay. Opinion @ 52. Because the arbitrator finds that the Employer has acted unreasonably, Grievant is awarded statutory interest on all back pay, dating from his most recent termination. Elkouri & Elkouri, supra, @ 1219-1221; MCL 438.7 & 438.31.86 In Gilliard v. Michigan Dept. of Social Services, a case in which an arbitrator did not award the discharged employee interest on back pay, the court of appeals reasoned that petitioner should not be forced to bear the burden of subsidizing his employer during the pendency of this litigation. Accordingly, we remand this case to the circuit court with directions to modify the award by adding interest from the date of petitioners discharge.87 Instead of following principle and precedent, the Leelanau court refused to uphold the arbitrators lawful award of interest on back pay. VII. THE APPELLATE COURTS TREATMENT OF THE ISSUE OF GRIEVANTS REINSTATEMENT TO PATROL DUTY IS CONFUSING AND WRONG The court of appeals ignored the provision of the collective bargaining agreement that expressly authorizes an arbitrator to restore a grievant to full duty: [T]he Arbitrator shall be empowered to return an employee to full duty if his decision is to make the employee whole.88 As noted previously, the arbitrator did decide to make grievant whole, provided only that he was fit for duty. In addition, the arbitrator wrote in his supplemental opinion that he had ordered Grievant reinstated with back pay,89 subject to passing a fitness exam. It is difficult to understand how a deputy sheriff, who had law enforcement powers before he was wrongly

07-2 Lab. Arb. Awards (CCH) 3927, at 3230. 354 N.W.2d 263, 267 (Mich. Ct. App. 1982) (footnote omitted). 88 Cornelius, supra note 1, at 436 & note 24. 89 07-2 Lab. Arb. Awards (CCH) 3927, at 3226. For a discussion of the meaning of reinstate, see Cornelius, supra note 1, at 439 note 50.
87

86

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terminated, could be returned to full duty without having those powers restored to him. From an analysis of the language used by the arbitrator, it seems clear that he intended and expected that once grievant passed the fitness exam, he would be restored to his position as patrol officer, and the Michigan Supreme Court has given conditional language such as the arbitrator used its common sense meaning. The arbitrator wrote: If the Sheriff determines that, until a favorable fitness report is received, Grievant should be assigned to a desk job, given special projects, or put on paid leave, Grievant is to obey orders. Grievant is to be made whole, including back pay, benefits, seniority, and any other emoluments of employment which he would have enjoyed had he not been terminated.90 In a deputy sheriff case, the Michigan Supreme Court, when confronted with the meaning of the sentence, As of September 11, 1968, you are hereby suspended until further notice, pending the outcome of the charges for which you were arrested on this date, decided: The clear implication of the notice was that upon determination of plaintiffs guilt of the charges therein referred to, the matter of his discharge or removal or other punishment would be appropriately treated. An equally clear implication is that if plaintiff be determined to be not guilty of those charges he would be reinstated with pay for the period of suspension.91 Similarly, the clear implication of the arbitrators language was that any limitations on grievants duties would cease when he passed the fitness exam. Indeed, ordering a fitness for duty exam and counseling would make little sense except in relation to grievants patrol duties.92 At one point in its opinion, the appellate court appeared to acknowledge that the arbitrator did in fact order grievant to be returned to patrol duty once he was declared fit,
07-2 Lab. Arb. Awards (CCH) 3926, at 3226 (emphasis added). Locke v. County of Macomb, 199 N.W.2d 166, 166, 168 (Mich. 1972) (emphasis added). See the discussion of Locke in Cornelius, supra note 1, at 444-445. 92 A fitness for duty evaluation is a psychological examination of an active police officer to determine whether the officers mental state is impairing the officers ability to perform police duties. Denhof v. City of Grand Rapids, 494 F.3d 534, 537 n.4 (6th Cir. 2007), rehg and rehg en banc denied (emphasis added). See generally CARY D. ROSTOW & ROBERT D. DAVIS, A HANDBOOK FOR PSYCHOLOGICAL EVALUATIONS IN LAW ENFORCEMENT (2004), cited by the arbitrator, 07-2 Lab. Arb. Awards (CCH) 3927, at 3230, 3232.
91 90

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inasmuch as the court wrote that the trial court affirmed the restoration of Beekers employment with the department but reversed the arbitrators order to restore Beeker to law enforcement duties rather than desk duties,93 but the court seemingly went on to contradict itself: Here, the trial court determined that neither it nor the arbitrator could order the sheriff to restore law enforcement powers to Beeker. The trial court said that if the arbitrators award were determined to require defendants to restore law enforcement duties to Beeker, then the trial court would refuse to enforce the award. Presumably, the trial court concluded that compelling the sheriff to confer law enforcement duties or powers was beyond the scope of the arbitrators authority. Thus, for the same reasons as those in Service Employees Intl, the trial court was without jurisdiction to review or decide any aspect of Beekers employment duties. Service Employees Intl, supra at 661-662. We therefore vacate that part of the trial courts order pertaining to restoring Beekers law enforcement powers.94 Since the arbitrator did order that grievant be reinstated to patrol duty and the sheriff refused to do so, the issue was properly before the trial court, and it was error for the appellate court to rule otherwise. The Service Employees case cited by the appellate court is wholly inapposite, as there the employer had fully complied with an arbitrators award before the occurrence of the events subsequently in dispute.95 In its opinion, the court of appeals made statements that are simply illogical: Plaintiff next argues that the trial court erred in declining to enforce the arbitrators award which plaintiff asserts was circumvented when Beeker was assigned to staff the complaint desk. Defendant reinstated Beeker and assigned him to the complaint desk in August 2007. However, the arbitrators supplemental opinion was issued in June 2007. Clearly, the arbitrator did notindeed could notaddress the issue of Beekers assignment to the complaint desk rather than the law enforcement duties he sought to be assigned to, when that action postdated the arbitrators
Police Officers Assn of Mich. v. Leelanau County, No. 285132, 2009 Mich. App. LEXIS 2344, at *4-5; 2009 WL 3757442, at *2 (Mich. Ct. App. Nov. 10, 2009) (emphasis added). 94 Police Officers Assn of Mich. v. Leelanau County, No. 285132, 2009 Mich. App. LEXIS 2344, at *11-12; 2009 WL 3757442, at *4 (Mich. Ct. App. Nov. 10, 2009). 95 Service Employees Int'l Union Local 466M v. City of Saginaw, 689 N.W.2d 521 (Mich. Ct. App. 2004).
93

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decision.96 Having already addressed the issue of grievants reinstatement to patrol duties in his initial opinion of February 23, 2007, it was unnecessary for the arbitrator to anticipate the sheriffs contumacy and address the issue a second time. The court of appeals should have directed the trial court to enforce the arbitrators awards in full. It was clear error not to do so. VIII. THE ROAD NOT TAKEN In addition to erroneously evading the issue of the restoration of grievants law enforcement powers, as the author urged the court of appeals to do in his earlier article, the court failed to address other serious issues to which the arbitrator brought attention in his opinions. One is the unconstitutionality of the oath of office that grievant was charged with violating.97 Another is the sheriffs use of a subpoena in a criminal case to obtain grievants cell phone records for use in the arbitration.98 The arbitrator could find no legal basis for such a procedure99 and pointed out that it gave the employers an unfair advantage in arbitrating against the union, which had no comparable method of obtaining documents.100 Moreover, if the sheriff could do that to grievant, then the sheriff could do it to any citizen of Leelanau County. The conduct merited a judicial rebuke. Yet a third neglected issue was the employers frivolous charge of sexual harassment against grievant101 and the Ph. D. psychologists flawed assessment of it.102 Instead of addressing substance and enlightening the employers and public about settled
96 97

2009 Mich. App. LEXIS 2344, at *10; 2009 WL 3757442, at *4. 07-2 Lab. Arb. Awards (CCH) 3926, at 3213-3214. 98 Id. at 3222-3223. 99 Id. at 3223-3224. 100 Id. at 3224-3225. 101 Id. at 3220-3222. The arbitrator found the charge so silly that he parodied it. 102 07-2 Lab. Arb. Awards (CCH) 3927, at 3230-3233.

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law, the appellate court merely recited some of the trial courts unfounded remarks on the subject, which neither the trial nor appellate court could substantiate.103 Fortunately, the appellate courts unpublished opinion has no precedential value,104 but it still can wreak great harm because it is posted on the Internet105 and is contained in the databases most utilized by legal researchers.106 In particular, it creates the erroneous notion that a court may review an arbitrators determination of the issues presented and may do so even if the parties failed to stipulate those issues and even though no transcript of the arbitration hearing was made for the court to review. Further, it undermines an arbitrators otherwise well established authority to order a fitness for duty examination and to award interest. There is a danger that the opinion could prolong labor disputes by opening arbitral awards to litigation over the issues presented, the very type of result that arbitration seeks to avoid: [T]he fact the arbitrator made erroneous rulings during the hearing, or reached erroneous findings of fact from the evidence, is no ground for setting aside the award, because the parties have agreed that he should be the judge of the facts. Even his erroneous view of the law would be binding, for the parties have agreed to accept his view of the law. Were it otherwise , arbitration would fail in its chief purpose; instead of being a substitute for litigation it would merely be the beginning of litigation.107 The court of appeals may have given the case short shrift because, at the hearing, the parties announced that grievant had resigned, but that should not serve as an excuse for slipshod legal work. Instead of addressing the issues in a skillful and conscientious
103 104

2009 Mich. App. LEXIS 2344, at *6-7; 2009 WL 3757442, at *3. Cornelius, supra note 1, at 435. 105 http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20091110_C285132_33_285132.OPN.PDF. 106 LEXIS and Westlaw, to which citations have been made throughout this article. 107 Frazier v. Ford Motor Co., 112 N.W.2d 80, 85 (Mich. 1961) (Souris, J., dissenting ) (quoting CLARENCE M. UPDEGRAFF & WHITLEY P. MCCOY, ARBITRATION OF LABOR DISPUTES (1946) 126).

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manner, the court cobbled together a collection of errors, thereby leaving unanswered the question of the authority of a Michigan sheriff to deny law enforcement powers to a deputy.

ACKNOWLEDGEMENT The author thanks Rachel L. Glogowski for her kind assistance in editing this article. Mrs. Glogowski was the principal Cooley Law Review editor of the authors earlier article.

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