Columns

Elites of yesterday and today exhibit need to be revered

June 20 ,2024

This is the second commentary in a series examining Niccolo Machiavelli’s analysis  of the challenges facing just political institutions, past and present, and his  admonitions regarding the steps needed to preserve their continuity.
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Samuel Damren

This is the second commentary in a series examining Niccolo Machiavelli’s analysis  of the challenges facing just political institutions, past and present, and his  admonitions regarding the steps needed to preserve their continuity.

Machiavelli is a controversial figure from the Italian Renaissance. He combined  political experience in the chancery of Florence with noted scholarship and literary skill. By the end of his life, Machiavelli enjoyed greater recognition across Italy as an accomplished dramatist and poet than for the political works for which he is known today.

One of Machiavelli’s original contributions to political theory, contained in “The Discourses on the Ten Books of Livy,” concerns discord. Contrary to the accepted views of other contemporary historians, Machiavelli contended that “disturbances between nobles and the plebeians … were the primary cause of Roman liberty” in the Golden Age of the empire.

The assertion arose from Machiavelli’s more generalized observation that “in every republic there are two different tendencies, that of the people and that of the upper class, and that all of the laws which are passed in favor of liberty are born from the rift between the two.”

In the ancient Roman republic, that “rift” resulted in the creation of separate consuls and tribunes: one selected by Senate nobles and the other selected by a plebeian assembly. These officials could exercise power in enforcing and proposing laws, but they also could obstruct the powers of one another.  

As a consequence, Machiavelli argued that the “people” and the “upper class” were forced to debate, discuss, and productively negotiate proposed laws to the satisfaction of each other. The process was not simply the product of acknowledged mutual dependency.

To ensure the integrity of the process, tribunes were granted the “power to indict citizens … when they commit any kind of offense against free government” as well as the complementary power “to punish those who make false accusations.”    

These powers were routinely exercised during the period where Machiavelli conceived Rome as the “perfect republic.” Without such institutional powers, factions would be permitted, and encouraged, in Machiavelli’s view, to corrupt forums of government where “wise men” had the opportunity to bring just resolution to political discord.

Machiavelli places significant blame for the erosion of these values and the undermining of critical institutions in ancient Rome on the failure of succeeding emperors to place stewardship of the republic ahead of personal ambition. He is far more caustic in his literary denunciations of the desire of factions in Italy’s 16th century elites to be “worshipped” rather than govern and thereby “become stained with every sort of filth.”

In one of his famous plays, “The Art of War,” Machiavelli directs his protagonist, Fabrizio Colonna, to deride such “princes” –

“They believed it was sufficient to be able to think up a clever riposte … to display wit and quickness in speech; to know how to concoct a scam; to adorn oneself with precious stones and gold; to slumber and dine in greater luxury than anyone else; to keep plentiful lascivious pleasures at hand; to treat one’s subjects with avarice and arrogance; to become enfeebled with indolence; to award military promotions in exchange for favors; to display contempt if anyone showed some praiseworthy way; and to want their words to be accepted as the responses of oracles.”

Similar disturbances in MAGA politics now work to corrupt American political institutions.

The next commentary in this series presents Machiavelli’s views on the Roman office of dictator. And yes, they had such an office in ancient Rome; but no, it is not what you think.

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Samuel Damren is an attorney and author in Ann Arbor.

The Corporate Transparency Act (CTA) and its implementation in 2024 continues to be under scrutiny

June 20 ,2024

Four states, including Michigan, are part of a lawsuit filed against the U.S. Treasury Department challenging the constitutionality of the Corporate Transparency Act of 2020.
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Sharan L. Levine

Four states, including Michigan, are part of a lawsuit filed against the U.S. Treasury Department challenging the constitutionality of the Corporate Transparency Act of 2020.

The Corporate Transparency Act was enacted as part of the National Defense Authorization Act of 2020 in order to address money laundering problems around the world, coming up with anti-money laundering approaches and responding to international requirements. The CTA requires companies to disclose beneficial ownership information (BOI) to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN).

On March 27, Small Business Association of Michigan (SBAM) and others in Michigan filed a lawsuit in the U.S. District Court for the Western District of Michigan against the Treasury Department challenging the constitutionality of the CTA, making this the third CTA lawsuit against the department. Similar litigation involves different litigants in Alabama, Ohio, and Maine.

In Michigan, the challenges to the CTA are based on the following assertions:

• Congress did not have the legislative power to authorize the CTA.

• The provisions of the CTA, which require persons to file personal information, constitute an unreasonable search and seizure violating a citizen’s Fourth Amendment rights. The plaintiffs argue that the information the government is collecting is provided for
the purpose of criminal investigation and/or monitoring without establishing probable cause for the search and seizure of the individual’s personal information. They also argue that the search is a violation of an individual's right to privacy.  

• Finally, the Michigan case argues that the Act is vague in violation of the Fifth Amendment by depriving persons of life, liberty, and property without due process of law because the language is too vague as to what the information will be used for.  

The Michigan plaintiffs asked the court to enjoin the government from enforcing the CTA and requiring plaintiffs to file the required forms. On April 26, the judge in the Western District Court case denied the plaintiffs’ motion seeking the preliminary injunction.

At Levine & Levine, we represent many small business clients who are in single member LLCs or closely held companies with just two or three members/shareholders. Frequently, for estate planning purposes, members/shareholders will assign their interest to their Revocable Trust.  The trustees are also required to file the beneficial ownership information report.

We are closely monitoring the CTA cases circulating in the country to protect our clients’ interests. We are prepared to advise and assist business owners as needed to file the personal information prior to the deadline and as required by law.    

If a company was incorporated prior to 2024, the current deadline for filing is Dec. 31, 2024.  For new companies established with the Secretary of State in 2024, the deadline for filing is 90 days after formation of the new company.

We are here to help business owners understand the complexity of the CTA. For additional information about the CTA, visit the 2024 Levine & Levine Newsletter.

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Sharan Levine is a partner with Levine & Levine Attorneys at Law.

Stopping Detroit’s pension heist: A look back at Estes v. Anderson

June 20 ,2024

Everyone should have a boss like Coletta Estes at least once in their career. During her many years of employment with the City of Detroit, Estes understood, on an almost intuitive level, what employees needed to succeed.
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J.J. Conway

Everyone should have a boss like Coletta Estes at least once in their career. During her many years of employment with the City of Detroit, Estes understood, on an almost intuitive level, what employees needed to succeed. She understood the importance of listening, offering assistance that actually helped, and providing support during challenging times. Estes knew that employees who are heard and feel that someone “has their back” always perform better. When Estes served as manager, good things followed.
Estes was good at her job because she started working as an hourly unionized employee and worked her way up through the ranks to the position of supervisor in the city’s water department, one of its largest departments. Estes understood the concerns of the city’s employees. She brought that unique understanding into her role when she joined management. The city benefited because its unionized employees trusted her, and the usual management-labor tension that undermined productivity was gone.

So, when Estes spotted problems with the management of the city’s pension funds, she knew who would be hurt financially – the average worker who was toiling away day after day in a city job with the promise of one day retiring comfortably. What Estes understood, too, is that a retirement benefit is a form of deferred compensation. An employee works today and part of the payment for that work is paid later. Estes was right. A retirement benefit is like being paid $20 per hour with $4 of each hour put into savings and paid in the future. Busy employees have jobs to do, so they must leave the management of that savings to others – the trustees of the city’s two pension funds.

Historically, Detroit’s pension funds have always been considered a little sketchy. It is not just a Detroit problem. Many public pension funds have questionable practices and they are largely unregulated. When vast sums of money are sitting around, corruption often follows. In the mid-aughts, the city’s pension funds were around $5 billion, and the trustees of those funds were afforded near total discretion as to where those funds would be invested.

There were some modest state rules but, for the most part, the trustees could deploy the pension funds as they pleased. And one area that interested them greatly was known as “Alternative Investments.” Alternative investments are unregulated private investments with little oversight. The trustees of the City of Detroit’s General Retirement System and the Police and Fire System would listen to pitches from investment marketers and then vote to deploy massive sums into these unregulated funds.

Mayor Kwame Kilpatrick knew of this massive amount of cash in the pension funds, and he also knew that he had the power to appoint several of the “ex officio” board seats on both pensions. Kilpatrick took the graft and corruption to another level by stacking the boards with his personal friends and cronies. They, along with other corrupt trustees, started pushing more and more money into schemes and deals that were marketed by their friends and family. The hard-earned pension money was being pushed into untraceable investments in the Cayman Islands, into loans with little or no collateral, and other crazy investment schemes. All the while, the mayor and others were pocketing kickbacks.

While the city’s water workers were literally working in sewers making sure residents had water and sanitation services, many of the trustees were partying it up in exotic locations and fancy restaurants signing away the retirements of these workers. It was, in a word, gross.

So, Estes sued.

Suing trustees of any government pension is tough. Most have qualified immunity as did the city’s trustees. But in this instance, the trustees conduct was so grotesque that Estes’ claims overcame governmental immunity at the trial court and the trial court’s ruling was upheld on appeal in Estes v. Anderson, 2012 WL 5857283(Mich. App. Nov. 15, 2012).

In its ruling on her case, the Court of Appeals analogized her case to the much more commonly litigated ERISA statute and held:

“Like ERISA, the PERSIA requires that fiduciaries of employee pension plans ‘act with the same care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a similar capacity and familiar with those matters would use in the conduct of a similar enterprise with similar aims.’ MCL 38.1133(3)(a); see, also, 29 USC 1104(a)(1)(B). And the PERSIA requires that fiduciaries give appropriate consideration to the facts and circumstances relevant to the particular investment or investment course of action and act accordingly. MCL 38.1133(3)(d). Estes v. Anderson, 2012 WL 5857283, at *3.”

The trial court held that Estes had pled sufficient facts to show that the trustees violated that duty and many others. Following this, the Estes case was certified as a class action along with a companion case, Foy v. Bandemer, which covered participants in the city’s Police and Fire Retirement System.

The case was a textbook example of a fiduciary’s breach of trust. There were multiple bad deals that cost the pension funds millions in losses and contributed to the underfunding crisis which, in turn, contributed to the city’s bankruptcy. (Indeed, one investment decision was so bad that that the trial court granted summary disposition to the plaintiffs finding the deal to be so risky and undercapitalized, that the investment was grossly negligent as a matter of law.)    

Eventually, the trustees settled Estes and Foy and agreed to a settlement class. The trustees of both funds agreed to pay back millions to the funds and agreed to a form of non-monetary relief that was actually greater in value – an independent outside neutral analysis of all non-public investments. As for the trustees, many went to jail ending a difficult chapter in the city’s history. Estes, for her part, cleaned up the funds and put them on a much better footing. In the end, Coletta Estes not only protected her coworkers but the city’s future workers for years to come. Like every other aspect of her career as a manager, she had their backs.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

White paper argues for changes to parole review for those committing crimes as youths

June 13 ,2024

The parole process for people who committed crimes under age 18 should be reformed to account for an evolving understanding of human development, according to a new white paper from the Civil Rights Litigation Clearinghouse.
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By Bob Needham
Michigan Law

The parole process for people who committed crimes under age 18 should be reformed to account for an evolving understanding of human development, according to a new white paper from the Civil Rights Litigation Clearinghouse.

In the 1980s and ’90s, the notion of dangerous young “superpredators” took hold in the public consciousness, leading to the imposition of harsher sentences—often in the adult justice system—for many young people. At the same time, sentencing practices were trending toward longer terms and mandatory penalties.

A better understanding about the cognitive development of young people and falling crime rates, however, discredited the super predator theory.

“What we now know about young people who commit crimes is that they’re much more likely to reform and change, that the crimes are actually often related to features of their youth rather than some inherent intractable criminality,” said Clearinghouse Managing Attorney Tessa Bialek, who authored the white paper. “There actually are meaningful differences between most people who commit crimes under the age of 18 and people who commit crimes as adults, and that should be reflected in sentencing.”

Starting in 2005, the U.S. Supreme Court responded to the evolving understanding of youth crime in several cases that prohibited some of the harshest sentences, including the death penalty and life without the possibility of parole for nonhomicide crimes. And many states have reformed the way that they sentence young people for crimes, Bialek said. Even so, thousands of people across the country continue to serve lifelong sentences for crimes committed when they were under age 18.

Those with parole-eligible sentences often face parole systems designed mainly for adults. Such systems are poorly suited to considering youth at the time of the crime or post-crime maturity and rehabilitation, and they fail to provide a realistic path to release.

“These young people should have a chance for a productive life outside of prison,” Bialek said.

The Civil Rights Litigation Clearinghouse, housed at Michigan Law, collects and presents documents and information from large-scale civil rights cases across the United States.

The new white paper draws on the collection to recommend that the parole process for people sentenced as youth should include the following reforms.

• A meaningful opportunity for release based on demonstrated maturity and rehabilitation

• Evaluation of maturity, rehabilitation, and the mitigating factors of youth

• Access to rehabilitative programming and services

• An in-person parole hearing with counsel

• Access to the court record; ability to contribute to and correct the record

• Board decisions supported by written explanations

• Judicial review of parole denial

• Data collection, annual monitoring, and review of processes by the parole board

• Qualifications and training for parole board members and staff

Bialek sees the recommendations as falling into two buckets.

First is the basis for deciding whether to grant release.

“The release decision should be grounded in how someone has grown and changed since the crime,” Bialek said. “The release decision should look at how someone has changed and grown, how they now reflect on the crime, and the ways that they might be able to make amends for that crime outside of prison, to make positive contributions to their community—both in spite of and in light of the crime that they’ve committed.”

Second is procedural support, which includes policies intended to support in-depth and accurate parole review, like an opportunity to correct the record or permitting live back-and-forth with the parole board.

“For example, counsel can be especially important for this cohort of people,” Bialek said. “Parole boards aren’t necessarily used to seeing parole candidates who committed these kinds of crimes and have been incarcerated for decades. Counsel can help offer context for the crime and grounding in the relevant constitutional and other requirements. Counsel can also be useful in marshaling the evidence that might be required or helping someone with a reentry plan.”

The new white paper is the third in a series called Learning from Civil Rights Lawsuits. The series looks to the tens of thousands of litigation documents in the clearinghouse collection to explore promising practices and develop model policies for criminal justice reform.

The first paper in the series, released in 2022, was “Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People.”

The second, released last year, was “Policies for Expanding Hepatitis C Testing and Treatment in United States Prisons and Jails.”

Machiavelli gave us early sense of hurdles we face

June 13 ,2024

This is the first commentary in a series examining the political observations, analysis and admonitions of Niccolo Machiavelli.
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By Samuel Damren

This is the first commentary in a series examining the political observations, analysis and admonitions of Niccolo Machiavelli.

Machiavelli is a controversial figure of the Italian Renaissance. He is best known as the author of “The Prince,” a work which is routinely vilified as a calculating lesson in amoral politics. In contrast, Machiavelli’s later work, titled “Discourses on the First Ten Books of Livy,” is a scholarly and reflective guide to the pursuit of ideals through applied political theory.

The reason for the difference in direction and tone of the two works is that they were composed with different objectives.

Machiavelli lived in an unstable and violent world where deceit, betrayal, and conspiracy were political currency.  Italian city republics openly vied for power and advantage in episodic military conflict as well as through secret and shifting alliances. The threat of foreign invasions and violent regime change from internal forces were ever-present. A brief chronology proves the point.

By the late 1400s, the Medici, an Italian banking family, had indirectly ruled Machiavelli’s birthplace, Florence, for several decades. A French invasion ousted them from power in 1492. Under the leadership of charismatic monk Girolamo Savonarola, the city re-constituted itself in 1494 as a republic. Four years later, Savonarola was burned at the stake in the city square when the populace turned against him.

Machiavelli, then age 29 and the son of a lawyer, served succeeding authorities in Florence over the next decade and a half. Highly regarded, he travelled to other Italian city-republics as well as France, Germanic provinces, and Switzerland as part of his official duties.

The Medici returned to power in Florence in 1512. Machiavelli sought to retain his position. In 1513, he hastily composed “The Prince” believing its authorship would be evidence of his value. Addressed to “The Magnificent Lorenzo De Medici,” the work was cast as a survival manual fit for the time and place of the new ruler.

Machiavelli’s plan was derailed after a conspiracy against Lorenzo was uncovered.

Machiavelli and others were taken into custody. He was tortured on the rack (spared permanent injury) then declared innocent. As a precaution, however, the Medici directed him to reside outside the city.

Exiled from politics, Machiavelli began to compose “Discourses on the First Ten Books of Livy.” “The Discourses,” which took five years to complete, compares the history of ancient Roman government institutions with the political circumstance of 15th and 16th century Italy.

In “The Discourses,” Machiavelli applied his first-hand knowledge of the fraught, devious and unvarnished workings of the politics of his time to expose and dramatize the competing forces, tensions and ambitions inherent in various forms of government, past and present.   

In the introductory pages, Machiavelli states his agenda: to show the people of Florence and Italy a path to stability, participation, and liberty modeled on a brief period of the ancient Roman Republic when, in Machiavelli’s estimation, government came close to perfection.

“Some who have written about republics declare that in each of them is one of three forms of government, which they call principality, aristocracy and democracy ... Wiser men hold the opinion that there are six kinds of government: three of these are very bad; three others are good in themselves but so easily corruptible that they also come to be pernicious {when they} jump from one form to the other: the principality easily becomes tyrannical; aristocracy quite easily becomes the government of the few; and democracy without difficulty turns to anarchy...,” Machiavelli wrote.

“Let me say, therefore, that all the forms mentioned above are defective, because of the brief duration of the good ones, and because of the evil nature of the bad ones,” he added. “Thus ... men who were prudent in establishing laws recognized this defect ... and chose a form of government that combined them all, judging such a government steadier and more stable, for when in the same city … one keeps watch over the other ...

“And fortune was so favorable to Rome ... since this authority remained mixed, it created a perfect republic.”

If this description of institutional “checks and balances” as the foundation for a “perfect republic” sounds familiar, it should. The Founding Fathers borrowed many of Machiavelli’s lessons in “The Discourses” to model the American “form of  government.”

Government institutions were broken in Machiavelli’s time.  From history and from experience, he knew how that happened. His forewarnings and admonitions on that account will be the focus of commentaries to follow.
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Samuel Damren is an attorney and author in Ann Arbor.

PREMi ADR Spotlight: Michigan Court of Appeals reverses Circuit Court vacatur of public sector labor arbitration award

June 13 ,2024

This article reviews Michigan Dep’t of State Police v Michigan State Police Troopers Ass’n, ___ Mich App ___, COA 363241 (December 28, 2023) (Judges Gleicher, Jansen, and Rick), app lv pdg. In Michigan Dep’t of State Police, the Court of Appeals reversed the Circuit Court vacatur of a public sector labor arbitration award.
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Introduction

This article reviews Michigan Dep’t of State Police v Michigan State Police Troopers Ass’n, ___ Mich App ___, COA 363241 (December 28, 2023) (Judges Gleicher, Jansen, and Rick), app lv pdg. In Michigan Dep’t of State Police, the Court of Appeals reversed the Circuit Court vacatur of a public sector labor arbitration award.

Précis


Defendant Union appealed the Circuit Court’s order denying the Union’s motion to enforce a labor arbitration award and granting the Employer’s motion to vacate the award. The Court of Appeals reversed the Circuit Court and remanded the case for the entry of an order enforcing the award. The issue was whether the award complied with the terms of collective bargaining agreement (CBA) and whether the Circuit Court substituted its own judgment for that of the arbitrator by vacating the award. The CBA indicated the arbitrator had the authority to reinstate an employee, reduce the length of a suspension, and take any other action necessary to make the employee whole after a wrongful discharge or suspension. The CBA did not prohibit the arbitrator from reducing  Grievant’s discipline from discharge to unpaid suspension. The CBA gave the arbitrator the power to determine whether the employee was discharged without just cause. The arbitrator concluded Grievant was discharged without good cause and determined that an unpaid suspension should be imposed. The Court of Appeals held that the Circuit Court erred by vacating the award.    
 
Factual Outline


Grievant was a Michigan State Police trooper. The events leading to her discharge occurred at a Union event. Grievant was intoxicated and allegedly "wedged her fingers into the anal crevice of a co-worker while he was walking next to his wife." A surveillance video showed Grievant trying to grab his genitals and  striking a second male coworker in the genitals. Grievant also was recorded attempting to grab the anal crease and genitals of a third male co-employee.

Criminal charges were brought against Grievant. In exchange for the dismissal of the CSC-IV counts, Grievant pleaded no contest to assault and battery. Grievant was sentenced to 30 days in jail. She was released after 21 days.

The Employer discharged Grievant. The arbitrator ruled there was no just cause for the discharge and reinstated Grievant with a suspension.

The Union argued that the arbitrator had sole authority to determine whether there was just cause for discharging Grievant relying on the CBA language providing that "[t]he arbitrator shall have no authority except to pass upon … a claim of suspension, discharge, or demotion without just cause." Emphasis added.

CBA Article 8, Part A, Section 1, stated:

The Employer will utilize disciplinary action only for just cause toward employees who engage in violations of the Code of Conduct. It is the intention of the Employer to utilize discipline by progression, when appropriate. Emphasis added.

The Award stated:

Essentially, the dispute between the parties is over whether progressive discipline should have been applied rather than termination of employment. ...

The key issue is whether under the totality of the circumstances the Employer had just cause for terminating [Grievant]’s employment. Determining just cause requires weighing a number of factors. A very significant factor, which is explicitly included in the parties’ contract, is a consideration of whether progressive discipline is appropriate. ...

... The parties’ contract calls for progressive discipline when appropriate. It is my conclusion that progressive discipline is appropriate in this case.

The Employer asked the Circuit Court to vacate the award. The Union requested that the award be confirmed.  The Circuit Court vacated the award. The Union appealed to the Court of Appeals.

Court of Appeals decision


The Court of Appeals indicated that a court in an award vacatur action may not substitute its judgment for that of the arbitrator. The court "may only decide whether the arbitrator's award 'draws its essence' from the contract. If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases." Sheriff of Lenawee Co v Police Officers Labor Council, 239 Mich App 111, 118 (1999).

The CBA had provisions discussing the arbitrator’s authority to review discipline and discharge cases. According to the Court of Appeals, “[t]hese provisions directly indicate that the arbitrator has the power to reinstate an employee, reduce the length of a suspension, and take any other action necessary to make an employee whole after wrongful termination or suspension.”

The Employer argued that the CBA limited the arbitrator’s authority to determining whether just cause existed for the discipline, “while leaving the actual method of discipline solely in the [employer]’s hands.”
The Court of Appeals disagreed with the Employer. The Court of Appeals indicated that under CBA Art. 9, Sec. 6:

The arbitrator shall have no authority except to pass upon alleged violations of the expressed written provisions of this Agreement, the unreasonableness or misapplication of a rule or regulation, that a work order was unreasonable and arbitrary or involves discrimination in application, or a claim of suspension, discharge, or demotion without just cause. [Italics in original.]

The Court of Appeals concluded that these portions of the CBA suggest that while the Employer may have authority to suspend or discharge employees, the arbitrator has the power to overturn such decisions if they are made without just cause. According to the Court of Appeals, nothing in the CBA suggests that an arbitrator is only authorized to determine whether just cause existed for the general discipline of an employee, rather than whether just cause existed for discharge. The arbitrator is empowered to determine whether a discharge was without just cause.

 According to the Court of Appeals, the Circuit Court overlooked that the CBA specifically gives the arbitrator the authority to determine whether a discharge was issued without just cause. Logically, if the discharge was without cause, the arbitrator would have the authority to determine, what, if any, discipline should be imposed.

The Employer argued that the award violated public policy. The Circuit Court did not address this issue. The Employer argued that the award was inconsistent with MCL 28.4 which provides that Michigan State Police Officers must be “of good moral character.” The Court of Appeals concluded that this argument lacked merit, indicating “[i]t would be a fairly large leap of logic for this Court to infer that what ultimately amounted to misdemeanant behavior caused by excessive drinking at an after-hours event with coworkers means that the grievant was not of good moral character.”  

Michigan Dep’t of State Police is consistent with the Trilogy


In 1960, the United States Supreme Court issued the Steelworkers Trilogy concerning labor arbitration awards. Steelworkers v Enterprise Wheel Car Corp, 363 US 593 (1960), considered the role of the federal courts in enforcing awards. “The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under” CBAs because the “federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Id. at 596.

Michigan Dep’t of State Police is consistent with Michigan case law


Lichon v Morse, 507 Mich 424 (2021), involved an employee manual agreement to arbitrate. Lichon stated, ... in the context of [CBA]s, we [have] held that it was appropriate to apply United States Supreme Court precedent regarding the National Labor Relations Act (NLRA) ... to contracts entered into under the state’s public employment relations act ... . ... This is not a rule we have adopted outside of the context of collective bargaining agreements, and we decline to do so now [in an employment arbitration case]. Id. at 467-468.

Beck v Park West Galleries, Inc, 499 Mich 40 (2016), considered whether arbitration clauses in invoices applied to disputes arising from prior purchases when the invoices for prior purchases did not refer to arbitration. Beck held the arbitration clause contained in later invoices cannot be applied to disputes arising from prior sales. Beck recognized the policy favoring arbitration of disputes arising under CBAs but said this does not mean an arbitration agreement between parties outside of the collective bargaining context applies to any dispute arising out of any aspect of their relationship. Beck is an example of the Supreme Court treating an arbitration issue within the collective bargaining process differently from outside the collective bargaining process.

In 36th Dist Ct v Mich Am Fed of State Co and Muni Employees, 493 Mich 879 (2012), the Supreme Court held MCR 3.106 does not preclude reinstatement and back pay where the CBA has a just cause standard for discharge.

Kaleva–Norman–Dickson School District No 6 v Kaleva–Norman–Dickson School Teachers’ Ass’n, 393 Mich 583, 591 (1975), stated,

The policy favoring arbitration of disputes arising under [CBA]s, as enunciated by the United States Supreme Court in the Steelworkers’ Trilogy, is appropriate for contracts entered into under the PERA.

Michigan Association of Police v Pontiac, 177 Mich App 752, 759-760 (1989), stated:

It is accepted that an arbitrator, if not specifically limited by the terms of the collective bargaining agreement, is free to fashion a remedy which considers the relative faults of the parties. ... .

Where the CBA is silent as to permissible remedies, an arbitrator does not add to the obligations contractually assumed by the parties by fashioning a remedy which is appropriate under the circumstances.

Wayne Co Bd of Comm'rs v National Union of Police Officers, 75 Mich App 375, 381 (1977), lv den 401 Mich 817 (1977).

Michigan Dep’t of State Police consistent with arbitral authority


The Michigan Dep’t of State Police decision is consistent with the proposition that, “[a]bsent a specific provision establishing that violation of a provision [of the CBA] results in discharge, the arbitrator has broad leeway to determine whether the discipline imposed fits the charge of misconduct." Farrell, "Due Process/Just Cause Issues," References for Labor Arbitrators (American Arbitration Association, 2005), p. 32. Elkouri & Elkouri, How Arbitration Works (8th ed 2016), pp. 18-46 to 18-49.

Conclusion


In conclusion, Michigan Dep’t of State Police is consistent with Michigan Supreme Court decisions, the language of the CBA, and general arbitral authority.
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Lee Hornberger is a member of the National Academy of Arbitrators.

He is former Chair of Alternative Dispute Resolution Section of State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of SBM Representative Assembly, former
President of Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of Traverse City Human Rights Commission.

He is member of Professional Resolution Experts of Michigan (PREMi) and Diplomate Member of The National Academy of Distinguished Neutrals. He is Fellow of American Bar Foundation; and Fellow of Michigan State Bar Foundation.

He has received Distinguished Service Award from SBM ADR Section in recognition of significant contributions to field of dispute resolution and George Bashara Award from ADR Section in recognition of exemplary service. He has received Hero of ADR Awards from ADR Section.

He holds his B.A. and J.D. cum laude from University of Michigan and his LL.M. in Labor Law from Wayne State University.

He can be contacted at leehornberger@leehornberger.com and 231-941-0746. Visit https://www.leehornberger.com/.