City of Lincoln Park v. Lincoln Park Police Officers Ass'n, Docket No. 101257

• Decision Date: 18 May 1989
• Docket Number: Docket No. 101257
• Citation: 176 Mich.App. 1,438 N.W.2d 875
• Parties: CITY OF LINCOLN PARK, Plaintiff-Appellant, Counter-Defendant, v. LINCOLN PARK POLICE OFFICERS ASSOCIATION, Defendant-Appellee, Counter-Plaintiff. 176 Mich.App. 1, 438 N.W.2d 875
• Court: Court of Appeal of Michigan — District of US

Page 875

438 N.W.2d 875

CITY OF LINCOLN PARK, Plaintiff-Appellant, Counter-Defendant, v. LINCOLN PARK POLICE OFFICERS ASSOCIATION,

Defendant-Appellee, Counter-Plaintiff.

Docket No. 101257.

176 Mich.App. 1, 438 N.W.2d 875

Court of Appeals of Michigan.

Submitted Dec. 7, 1988.

Decided March 20, 1989.

Released for Publication May 18, 1989.

[176 MICHAPP 2] Pagnucco & Kruse by Kenneth D. Kruse, Allen Park, for plaintiff-appellant, counter-defendant.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by George H. Kruszewski, Detroit, for defendant-appellee, counter-plaintiff.

Before WAHLS, P.J., and McDONALD and SIMON, ^* JJ.

McDONALD, Judge.

Plaintiff appeals as of right from a May 29, 1987, order granting defendant's motion for summary disposition under MCR 2.116(C)(10) in plaintiff's action seeking to modify or vacate an arbitrator's opinion and award made pursuant to a collective bargaining agreement. We affirm.

On April 22, 1986, Lincoln Park Police Officer Randall Noder was charged with violating four sections of the Lincoln Park Police Department's [176 MICHAPP 3] rules and regulations: Sec. 24A(1), conduct unbecoming an officer; Sec. 31D, truthfulness; Sec. 24A(3), reporting police activities; and Sec. 22E, requiring the recording of each activity in which an officer becomes involved. All four violations were the result of one act in which Officer Noder engaged in an improper consensual act of a sexual nature with the complaining witness after responding to her call for assistance and while on duty. Following the act, Officer Noder failed to note his visit to the complainant's home in his log book and failed to file a report on the incident. When questioned the next day, Officer Noder denied engaging in a sexual act the preceding night. However, on the following day Noder gave another statement in which he admitted he lied in his initial statement and truthfully set forth the events occurring at the complainant's home.

After a full hearing by the Lincoln Park Commission of Public Safety on May 1, 1986, Officer Noder was discharged by the city for violating the various sections of the rules and regulations of the police department. Following his discharge, Officer Noder filed a grievance pursuant to the collective bargaining agreement between the City of Lincoln Park and the Lincoln Park Police Officers Association.

The grievance remained unresolved and was submitted to final and binding arbitration. On January 12, 1987, the arbitrator issued his opinion and award which set aside the dismissal and ordered Noder's one-year suspension without pay or benefits, and one-year probation to commence upon Noder's return to the force.

Plaintiff filed the instant complaint seeking to modify or vacate the arbitrator's opinion and award. Defendant counterclaimed seeking to enforce the arbitrator's award according to its terms. [176 MICHAPP 4] Both parties moved for summary disposition pursuant to MCR 2.116(C)(10). Following hearings on the motions, the trial court entered an order granting defendant's motion for summary disposition. It is from this order plaintiff now appeals.

On appeal plaintiff first claims the trial court erred in enforcing the arbitration award, claiming the award did not draw its essence from the contract. We disagree.

The necessary inquiry for this Court's determination is whether the award was beyond the contractual authority of the arbitrator. Labor arbitration is a product of contract and an arbitrator's authority to resolve a dispute arising out of the appropriate interpretation of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. Port Huron Area School Dist. v. Port Huron Ed. Ass'n, 426 Mich. 143, 393 N.W.2d 811 (1986). It is well settled that judicial review of an arbitrator's decision is limited. A court may not review an arbitrator's factual findings or decision on the merits. Port Huron, supra. Rather, a 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. Port Huron, supra; Ferndale Ed. Ass'n v. School Dist. for City of Ferndale No. 1, 67 Mich.App. 637, 242 N.W.2d 478 (1976).

We believe the instant award "draws its essence" from the contract. Article XVIII(a) of the collective bargaining agreement at issue in the instant case provides:

"No member shall be discharged or otherwise disciplined except for just cause. The claim of any [176 MICHAPP 5] member that he has been unjustly discharged or otherwise disciplined shall be processed as a grievance."

Article XVIII(f), step 4, provides:

"The arbitrator shall limit his decisions strictly to the interpretation, application or enforcement of the specific articles and sections of the agreement, and it shall be without power or authority to make any decisions."

Rule 33J of the department's rules and regulations provides:

"Any member or employee of the Department may be dismissed from the service or suffer such punishment as may be directed by the Commission of Public Safety when such member or employee has been charged with and found guilty of the commission of a felony or misdemeanor under any law or ordinance, or any act or omission contrary to good order or a violation of any of the provisions of the Rules and Regulations of the Department." (Emphasis added.)

It is undisputed that Officer Noder violated the rules and regulations of the department. However, rule 33J makes the penalty of discharge optional. Moreover, article XVIII(f), step 4, defines the arbitrator's scope of authority as limiting his decision to "interpretation, application or enforcement of the specific articles and sections of the agreement." In the absence of clear and unambiguous language to the contrary in the collective bargaining agreement, an arbitrator may determine that, while the employee is guilty of some infraction, the infraction does not amount to just cause for discharge and impose a less severe penalty. Monroe[176 MICHAPP 6] Co. Sheriff v. Fraternal Order of Police, 136 Mich.App. 709, 357 N.W.2d 744 (1984).

Thus, acting pursuant to the agreement, the arbitrator in the instant case was free to determine that Officer Noder's dismissal was not justified. Moreover, as the Supreme Court stated in United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, ---- 108 S.Ct. 364, 371, 98 L.Ed.2d 286, 299 (1987): "Where it...