Local 1518, Council 55, American Federation of State Employees v. St. Clair County Sheriff , 77 Mich. App. 145 ( 1977 )

W. F. Hood, J.

Plaintiffs brought this suit for injunctive relief and damages arising out of the alleged unlawful termination of plaintiff Bruin’s employment as a deputy sheriff of St. Clair County. From a judgment in favor of defendants, plaintiffs appeal of right.

Plaintiff Bruin served from January 1, 1957 to December 31, 1972, as a deputy sheriff for the County of St. Clair. Defendant Meharg served as a deputy sheriff from April 13, 1965 until December 31, 1968, after which time he became the sheriff of St. Clair County, a position he has held ever since that time.

In the fall of 1972, Sheriff Meharg was opposed for reelection by plaintiff Bruin, but was reelected to a second term of office scheduled to commence January 1, 1973. At about 6:30 a.m. on December 31, 1972, defendant Meharg notified plaintiff Bruin that he would not be reappointed to serve during the sheriff’s second term of office. Defendants allege that the decision not to reappoint plaintiff Bruin was predicated upon Bruin’s unsatisfactory performance as a deputy sheriff. Shortly thereafter the complaint which initiated the instant litigation was filed.

Plaintiff Bruin maintains that his termination was improper because as a veteran of the armed services he could not be terminated except for good cause shown and after appropriate hearings pursuant to the so-called veterans’ preference act. MCLA 35.401 et seq.; MSA 4.1221 et seq. On this point the Michigan Supreme Court has held squarely contrary to plaintiffs’ position. In the case of Abt v Wilcox, 264 Mich 183; 249 NW 483 (1933), the court held that the veterans’ preference act did not entitle a deputy sheriff to continue to hold office after the term for which he was appointed. Therefore, if the plaintiffs are entitled to relief it will have to be on some other ground.

Plaintiffs further contend that plaintiff Bruin is entitled to the benefits of the collective bargaining agreement entered into between the plaintiff union and defendant board of commissioners; and that such agreement prohibited involuntary termination of employment without subjecting such termination to the grievance procedures set forth in the contract. The defendant sheriff denies that he is bound by the provisions of such contract.

The defendant sheriff relies in part upon MCLA 51.70; MSA 5.863 which provides that the sheriff appoints deputies at his pleasure and that the sheriff may revoke such appointments at any time. The effect of the public employees relations act (PERA), MCLA 423.201 et seq.; MSA 17.455(1) et seq., upon pre-existing statutes dealing with the authority of public employers has been the subject of decision by the Michigan Supreme Court. The case of Wayne County Civil Service Commission v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), dealt with the precedence of the 1965 PERA over a 1941 civil service act, which had placed in a county civil service commission authority over county employees. The Court said at 374:

"We stress it anew and hold that the act of 1965 operates, ’to the extent of the repugnancy/ as a partial repeal of the act of 1941; but no more than that. In short shrift this means that the purposed thrust of the act of 1965, that of prohibiting strikes by public employees and providing collective bargaining, negotiation and enforced mediation of labor disputes arising out of public employment coming within the scope of the act, must be implemented and administered exclusively as provided therein. Hence, the original authority and duty of the plaintiff civil service commission was diminished pro tanto, by the act of 1965, to the extent of free administration of the latter according to its tenor.”

The expressed reason why PERA should take precedence over the county civil service act argues as strongly for PERA’s precedence over the statute on which defendants rely. We hold that a collective bargaining agreement validly adopted under PERA diminishes pro tanto the pre-existing statutory authority of a sheriff over his employees.

The defendants contend that the sheriff is not bound by the collective bargaining agreement in this case because it was negotiated by the plaintiff union with the board of commissioners, not with the sheriff. The sheriff claims that he, and not the board of commissioners, is the employer of his deputies; and that he was not a signatory to the contract and is not bound by it.

While the board of commissioners may be the employer to the extent that it controls the economic factors involved in the employment contract, there is no question but that the sheriff is the employer who has control over the day to day operation of the sheriff’s department. In at least one state, in a similar situation it has been held that the board of commissioners and the sheriff are dual employers for collective bargaining purposes. See County of Ulster v CSEA Unit of Ulster County Sheriff’s Dept, 37 App Div 2d 437; 326 NYS2d 706 (1971).

We note that PERA imposes an absolute duty upon a public employer to bargain collectively with the representatives of its employees. The testimony in this case shows the defendant sheriff was aware that a contract was being negotiated between the representatives of his employees and the board of commissioners. During the period of time in which the contract was being negotiated, the sheriff had some conversation about the contract with the attorney employed by the board of commissioners to be its negotiator. The sheriff made no claim at that time that the representatives of the employees were negotiating with the wrong party. Under the circumstances, failure of the sheriff to intervene and take part in the negotiations prevents him from claiming the negotiations were with the wrong party, and he is bound by the contract.

The plaintiffs claim that as a final step in the grievance procedure the matter should be submitted to binding arbitration. The defendants contend that the collective bargaining agreement in force at the time of this dispute did not provide for compulsory binding arbitration as a final step in the procedure, but rather authorized binding arbitration for a particular grievance only if both parties agreed to such arbitration.

Act 312 of the Public Acts of 1969 (MCLA 423.231 et seq.; MSA 17.455(31) et seq.), which provides for compulsory binding arbitration of disputes involving public police or fire department employees, has been construed to apply to grievance disputes as well as to disputes arising in precontract negotiations. Local 1325, Michigan Council 55, American Federation of State, County, and Municipal Employees, AFL-CIO v McKervey, 62 Mich App 689; 233 NW2d 836 (1975).

While the McKervey case held that the parties to a contract could substitute their own compulsory arbitration procedure for the procedure provided in the statute, this does not mean that the failure of a contract to provide for compulsory arbitration removes the right to compulsory arbitration. The statute itself specifically states that its purpose is to provide, where the right of employees to strike is by law prohibited; an alternate, expeditious, effective and binding procedure for the resolution of disputes. Under this statute, compulsory arbitration can be initiated by either party to the dispute. The statutory procedure is thus available at the instance of either party without the necessity of providing for it in the contract.

We, therefore, hold that the plaintiffs are entitled to submit this grievance dispute to compulsory arbitration, under Act 312.

Reversed and remanded. No costs, a public question being involved.

D. E. Holbrook, P. J., concurred.