By Lee Hornberger,
Arbitrator and Mediator
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 by 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.
______________________
About the Author
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. His website is https://www.leehornberger.com/ .
Our Professionals
* Member Emeritus
Case Studies
Kadıköy elektrikçi olarak kadıköy ilçesine yakın bir konumdayız. Hizmetlerimizi en iyi ekipmanlar ile en uygun fiyatlara yapıyoruz Kadıköy Elektrik Ustası. Kadıköy merkez ve kadıköyün bütün mahallerine profosyonel hizmet kalitesi ile hizmet veriyoruz. https://kansabook.com/ustaelektrikci
Beşiktaş tıkalı tuvalet açma Beşiktaş Makinalı Petek Bakımı. Beşiktaş petek temizlik Beşiktaş kombi petek temizleme servisi ile acil şekilde temizlenmesi gereken, pas tutucu https://mamtasindur.com/besiktas-su-tesisati-yenileme/
такси недорого цены https://taxi-novocherkassk.ru
Beşiktaş Sıhhi Tesisat Tamir İşlemleri Beşiktaş Noktasal Su kaçağı Tespiti Beşiktaş Petek Temizleme Beşiktaş Pimaş … Beşiktaş Su Kaçağı Tespiti İşlemleri. Beşiktaş Klozet Sifonu Tamir https://www.ccayef.org/etiler-besiktas-su-kacak-tespiti/
Beşiktaş su kaçağı Petek temizleme hizmetleri, Beşiktaş’deki ev sahiplerinin ve işletmelerin ısınma sistemlerinin ömrünü uzatır ve bakım maliyetlerini azaltır. http://srisriinteriors.in/besiktas-tesisat-firmalari/
Somebody essentially help to make significantly articles I’d state. This is the first time I frequented your web page and up to now? I surprised with the research you made to make this actual post incredible. Fantastic job!
акриловый сайдинг для обшивки купить сайдинг для наружной обшивки
I all the time used to study paragraph in news papers
but now as I am a user of net therefore from now I am
using net for articles, thanks to web.
Ищете способ расслабиться и получить незабываемые впечатления? Мы https://t.me/intim_tmn72 предлагаем эксклюзивные встречи с привлекательными и профессиональными компаньонками. Конфиденциальность, комфорт и безопасность гарантированы. Позвольте себе наслаждение и отдых в приятной компании.
Keto Cut is a popular dietary supplement that is designed to help individuals achieve their weight loss goals through the process of ketosis.
Also visit my blog :: keto Cut Ingredients
мебель купить интернет магазин
https://formomebel.ru/stoliki/iz-mramora
Hello it’s me, I am also visiting this web site regularly, this
web site is in fact nice and the viewers are actually sharing good thoughts.
Great work! This is the type of information that are supposed
to be shared across the internet. Disgrace on the search engines for now not positioning this submit upper!
Come on over and talk over with my web site . Thank you =)
Hello my loved one! I want to say that this post is amazing, great written and come with approximately all
significant infos. I’d like to see extra posts like
this .
This site was… how do you say it? Relevant!! Finally I’ve found something that helped me.
Thanks a lot!
It’s hard to come by well-informed people about this subject, however,
you sound like you know what you’re talking about!
Thanks
fun88 ถอนเง น นาน ไหม เป็นเว็บไซต์ที่ให้บริการการเข้าสู่ระบบทันใจและปลอดภัยสำหรับการเดิมพันกีฬาและคาสิโนสดทุกวันที่ไม่ควรพลาด. ถ้าคุณกำลังมองหาประสบการณ์การเดิมพันที่น่าตื่นเต้นและเพลิดเพลิน ทางเลือกที่ดีที่สุดคือ fun88.
You’re so interesting! I do not suppose I’ve read through a
single thing like that before. So good to find someone with some genuine
thoughts on this subject. Really.. thank you for starting this up.
This website is one thing that is required on the web, someone
with a little originality!
купить квартиру в новостройке от застройщика купить квартиру в новостройке от застройщика
Link exchange is nothing else but it is just placing the other person’s blog link on your page at proper place and other person will also do same in support
of you.
Картинки с добрым утром https://utra-dobrogo.ru/ –
это несложный, но очень эффективный способ поднять
настроение себе и близким с самого утра.
Красочные и положительные изображения с пожеланиями хорошего дня
помогают начать день с улыбки и позитивных мыслей.
Они могут содержать красивые пейзажи, забавные картинки, мотивирующие цитаты или милые животные, которые придают утру
больше радости. Такие картинки
без труда можно отправить друзьям и близким через мобильные
приложения или соцсети, делая их день лучше.
Начав утро с приятного пожелания, весь день может быть более
радостным и продуктивным.
Good response in return of this issue with genuine arguments and telling
all on the topic of that.
Excellent blog you have here.. It’s hard to
find high-quality writing like yours nowadays. I seriously appreciate individuals
like you! Take care!!
This design is steller! You most certainly know how to keep a reader
amused. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Wonderful job.
I really loved what you had to say, and more than that, how you presented it.
Too cool!
My brother suggested I might like this blog.
He was entirely right. This post truly made my day. You can not imagine
just how much time I had spent for this information! Thanks!
You actually make it seem really easy along with your presentation however I to find this matter
to be actually something that I think I’d by no means
understand. It seems too complicated and very wide for me.
I’m taking a look ahead for your subsequent publish, I’ll
attempt to get the cling of it!
Robert Lewandowski https://robertlewandowski.prostoprosport-ar.com is a Polish footballer, forward for the Spanish club Barcelona and captain of the Polish national team. Considered one of the best strikers in the world. Knight of the Commander’s Cross of the Order of the Renaissance of Poland.
Ulus Su Tesisatçısı Banyo Tıkanıklığı Beşiktaş tıkanıklık açma gideri, kırmadan robot kameralı cihazlarla tuvalet klozet lavabo mutfak kanal en ucuz fiyatlarla kesin çözüm https://mpett.com/blogs/551/Be%C5%9Fikta%C5%9F-Tesisat%C3%A7%C4%B1-Su-Tesisat%C3%A7%C4%B1s%C4%B1
This was a very good post. Check out my web page Webemail24 for additional views concerning about Website Traffic.
Impressive posts! My blog Seoranko about Accidents also has a lot of exclusive content I created myself, I am sure you won’t leave empty-handed if you drop by my page.
mexico drug stores pharmacies
http://cmqpharma.com/# buying prescription drugs in mexico
mexican rx online
medication from mexico pharmacy: mexican online pharmacy – mexican mail order pharmacies
I know a lot of folks whom I think would really enjoy your content that covers in depth. I just hope you wouldn’t mind if I share your blog to our community. Thanks, and feel free to surf my website ArticleHome for content about Sports.
This is top-notch! I wonder how much effort and time you have spent to come up with these informative posts. Should you be interested in generating more ideas about Used Car Purchase, take a look at my website Autoprofi
I like how well-written and informative your content is. You have actually given us, your readers, brilliant information and not just filled up your blog with flowery texts like many blogs today do. If you visit my website Articlecity about Infertility Treatments, I’m sure you can also find something for yourself.
mexican pharmaceuticals online: mexico pharmacy – mexican pharmacy
mexico drug stores pharmacies
https://cmqpharma.online/# mexican pharmaceuticals online
buying from online mexican pharmacy
Having read your blog, you obviously know what you are talking about. I’m sure visiting my page Articleworld about Blogging will be worth your time!
Very interesting information!Perfect just what I was looking for!Raise your business
Having read your posts. I believed you have given your readers valuable information. Feel free to visit my website Article Sphere and I hope you get additional insights about Website Design as I did upon stumbling across your site.
I loved as much as youll receive carried out right here The sketch is attractive your authored material stylish nonetheless you command get bought an nervousness over that you wish be delivering the following unwell unquestionably come more formerly again as exactly the same nearly a lot often inside case you shield this hike
indian pharmacies safe: top online pharmacy india – Online medicine home delivery
mexican rx online: mexican border pharmacies shipping to usa – mexican rx online
legitimate canadian pharmacy canadapharmacyonline legit prescription drugs canada buy online
mexican drugstore online: medication from mexico pharmacy – mexico drug stores pharmacies
https://canadapharmast.com/# canadian discount pharmacy
recommended canadian pharmacies: buying drugs from canada – onlinecanadianpharmacy
buy drugs from canada: canadian drugs pharmacy – canadianpharmacyworld com
indian pharmacy online top online pharmacy india best india pharmacy
medicine in mexico pharmacies: mexico pharmacy – mexico pharmacy
http://indiapharmast.com/# indian pharmacy paypal
india online pharmacy: buy prescription drugs from india – Online medicine order
mexican pharmaceuticals online: mexico drug stores pharmacies – mexican online pharmacies prescription drugs
best online canadian pharmacy canadian pharmacy oxycodone prescription drugs canada buy online
world pharmacy india: best india pharmacy – buy prescription drugs from india
canada drugs: reliable canadian pharmacy – reliable canadian online pharmacy
world pharmacy india: buy prescription drugs from india – india pharmacy mail order
https://indiapharmast.com/# top 10 pharmacies in india
mexico pharmacy: best online pharmacies in mexico – buying from online mexican pharmacy
http://clomiddelivery.pro/# cost of cheap clomid without a prescription
http://doxycyclinedelivery.pro/# buy doxycycline monohydrate
buy ciprofloxacin over the counter: cipro for sale – where to buy cipro online
https://amoxildelivery.pro/# amoxicillin pills 500 mg
Its like you read my mind You appear to know a lot about this like you wrote the book in it or something I think that you could do with some pics to drive the message home a little bit but instead of that this is fantastic blog An excellent read I will certainly be back
http://doxycyclinedelivery.pro/# doxycycline buy canada
http://paxloviddelivery.pro/# paxlovid cost without insurance
order cheap clomid no prescription: cost of clomid prices – clomid buy
http://doxycyclinedelivery.pro/# where to buy doxycycline 100mg
https://ciprodelivery.pro/# buy cipro online
price of amoxicillin without insurance: can you buy amoxicillin over the counter – amoxicillin price without insurance
http://paxloviddelivery.pro/# paxlovid pharmacy
paxlovid price: paxlovid cost without insurance – paxlovid pharmacy
http://amoxildelivery.pro/# amoxicillin online pharmacy
paxlovid for sale: п»їpaxlovid – paxlovid covid
Paxlovid buy online: paxlovid cost without insurance – Paxlovid over the counter