Michael Pinkerton was hired as a police officer by the city of Oak Park, Michigan in 1996, and was represented by the Oak Park Public Safety Officers Association.
In December of 1997, Pinkerton resigned from his employment with the City and worked at a mortgage banking firm. After a short time, however, Pinkerton became interested in returning to work with the City’s police department. The City’s charter provided that an “employee resigning in good standing may be reinstated to any position in the same class if there is need for his services within two years after the date of resignation.” Pinkerton’s discussions with the director of public safety, George Seifert, left him with the impression that he would be reinstated, that his six months in a different job would be considered a leave of absence from the City, and that he “would have to fall back down to the lowest, as far as seniority goes.” In July 1998, Pinkerton was reinstated by the City to his former position as a public safety officer and was placed at the bottom of the seniority list for purposes of shift bids and vacation selection.
In early 2004, Pinkerton attended a Public Safety Department function that honored employee longevity. The event’s brochure listed Pinkerton as having been employed with the Department for five years. After noticing this, Pinkerton sent a memo to his superior seeking to clarify the length of his employment for seniority and retirement purposes. He wrote: “With the Director retiring soon, I would like to get something in writing from the City that indicates my true hire date. I know this is not a top priority, but I don’t want to end up thinking that I am able to retire and then find out that I am not eligible for a certain amount of time. Yes, I realize this is a long time down the road! The way I am calculating my time, I think that I have seven years and four months on.”
A few months later, the City’s deputy director of finance sent a memo back to Pinkerton, stating: “Your current payroll records reflect a hire date of July 12, 1998, and in viewing your records I show your original hire date as November 1, 1996. I will adjust the payroll records and update your file to show your original hire as November 1, 1996, giving you 7 years and 5 months of service with the City of Oak Park as of today, Thursday, April 1, 2004.” There was no evidence produced at hearing to establish that either memo was provided to the Union.
In July 2021, rumors circulated that Pinkerton was getting ready to retire and enter the City’s Deferred Retirement Option Program (DROP). Eric Sanders, another public safety officer, “doubted that Pinkerton had the necessary 25 years of service credits to enter the DROP because Pinkerton had hired in after Sanders. Sanders testified that he thought the matter involved a ‘pension issue.’ Sanders further testified that, in his experience with the Pension Board from 2010 to 2015, if an individual was employed by the City, left employment, and later returned, the lapse in employment would not have been credited as service time.” On September 30, 2021, Pinkerton retired and, thereafter, entered the DROP. In October 2021, the Union filed a “grievance challenging the validity of Pinkerton’s retirement,” alleging that the City “violated the Public Employment Relations Act by engaging in direct dealing with bargaining unit member Michael Pinkerton in July of 1998.”
The ALJ agreed that the City’s conduct constituted direct dealing and unlawful interference with Union affairs. The City appealed, arguing that the charge had not been timely filed and that they had not engaged in direct dealing.
The Michigan Employment Relations Commission (MERC) affirmed the ruling of the ALJ. The MERC determined that the City’s conduct constituted unlawful direct dealing, finding “(1) that the City communicated with union-represented employees; (2) that the discussion was for the purpose of establishing or changing wages, hours, and terms of employment or undercutting the Union’s role in bargaining; and (3) that such communication was made to the exclusion of the Union.” Speaking with Pinkerton about his leave of absence, even when he was not employed, “satisfy the first and third prongs of the NLRB’s test for direct dealing.” As to (2), the City argued that Seifert’s actions did not constitute direct dealing, “because there was no agreement to modify or alter Pinkerton’s terms of employment.”
MERC found this unavailing: “The collective bargaining agreement contains no language allowing for the retroactive grant of a leave of absence, let alone language providing that a retroactive leave of absence nullifies what would have otherwise been a break in service.” Thus, all three prongs were satisfied.
The City was ordered to cease and desist from interfering with its employees’ exercise of protected rights, and to cease and desist from violating its duty to bargain in good faith with the Union. With respect to Pinkerton, the City was ordered to “reimburse the Public Safety Board the total amount that would have been contributed on behalf of Michael Pinkerton from December 1997 through July 12, 1998, had he not been separated from employment together with interest at the statutory rate from July 12, 1998, through to the present.”
City of Oak Park and Police Officers Association of Michigan, 37 MPER ¶ 25 (Mich. Pub. Rel. Com’n., 2024).