Clinton Tp. v. Contrera

Decision Date05 September 1979
Docket NumberDocket No. 78-3688
Citation284 N.W.2d 787,103 L.R.R.M. (BNA) 2464,92 Mich.App. 297
PartiesTOWNSHIP OF CLINTON, Plaintiff-Appellee, v. William CONTRERA, and Police Officers Association of Michigan, Defendants-Appellants. 92 Mich.App. 297, 284 N.W.2d 787, 103 L.R.R.M. (BNA) 2464
CourtCourt of Appeal of Michigan — District of US

[92 MICHAPP 300] Nancy J. Van Lopik, W. Glen Jeakle, II, Detroit, for defendants-appellants.

Fred A. York, Mount Clemens, for plaintiff-appellee.

Before KAUFMAN, P. J., and RILEY and THEILER, * JJ.

RILEY, Judge.

We are presented with another conflict between the Public Employment Relations Act, M.C.L. § 423.201 Et seq.; M.S.A. § 17.455(1) Et seq., (hereinafter PERA), and the Firemen and Policemen Civil Service Act, M.C.L. § 38.501 Et seq.; M.S.A. § 5.3351 Et seq. (hereinafter Act 78).

The PERA prohibits strikes by public employees while permitting such employees to bargain collectively with their employers. Defendant Police Officers Association of Michigan is the exclusive bargaining agent under the PERA for certain law enforcement officers of the Township of Clinton. At the time the collective bargaining agreement at [92 MICHAPP 301] issue was entered into by the parties, Act 78, which provides for a civil service system governing, Inter alia, the appointment, promotion, suspension and discharge of firemen and policemen, was in effect in Clinton Township pursuant to a prior vote by the electorate. M.C.L. § 38.517a; M.S.A. § 5.3368. 1

Article IV of the collective bargaining agreement provides for a grievance and arbitration procedure. A grievance is defined as:

"(A)ny difference that may arise between the parties relative to:

"1. Any matter involving an alleged violation of any other provisions of this agreement or Act 78 of the Public Acts of the State of Michigan of 1935 as amended."

Section A of Article IV sets forth the steps necessary to process a grievance and provides in part as follows:

"Arbitration or an Act 78 Civil Service Hearing: If a satisfactory settlement is not reached in Step Two or Step Three, or if the Township Board does not meet with the Union within the fifteen (15) day limitation or if the written answer is not submitted within the ten (10) day limit as prescribed in Step Three, the moving party can either proceed to binding arbitration as set forth below or petition the Township Civil Service for a hearing; provided, however, that once the election is made by the moving party, they forfeit the right to withdraw that election and proceed on the other remedy."

[92 MICHAPP 302] Section C allows for the opportunity of a civil service hearing. It states in applicable part:

"Any unresolved grievances having not been submitted to the American Arbitration Association may be submitted to the Civil Service Commission. Said Commission will be in compliance with Act No. 78 of the Public Acts of the State of Michigan for 1935, as amended.

"The moving party herein will not be allowed to submit unresolved grievances to both the American Arbitration Association and the Civil Service. The submission of the unresolved grievance to either the American Arbitration Association or the Civil Service Commission will preempt the moving party from submitting the unresolved grievance to the body that the grievance has not been submitted to.

"Grievances affecting a number of employees may be treated as a policy grievance and entered at the second step of grievance procedure by the Association."

Finally, Article V of the agreement contains the following crucial provision:


"The provisions of Act No. 78 of the Public Acts of the State of Michigan for 1935, as amended, are adopted by reference as if fully stated herein."

On two separate occasions, defendant William Contrera was subject to disciplinary action by the Township, the first involving suspension and the second resulting in discharge. A grievance was filed under the collective bargaining agreement, which grievance stated that Contrera had been disciplined without cause in violation of section 14 of Act 78, Infra. The grievance was processed to the point of request for arbitration, which was refused by the Township.

[92 MICHAPP 303] Plaintiff Township then filed a complaint for declaratory judgment and incidental relief, requesting that defendants be permanently enjoined from seeking arbitration. The requested relief was granted by the court below.

Defendants appeal, raising two issues, and first allege that the grievance protesting the Township's disciplinary action was arbitrable within the terms of the collective bargaining agreement. 2

Arbitration is a matter of contract, Kaleva-Norman-Dickson School District No. 6 v. Kaleva-Norman-Dickson School Teachers' Association, 393 Mich. 583, 587, 227 N.W.2d 500 (1975), and while the question of arbitration is for the court, Kaleva, supra; Brown v. Holton Public Schools, 62 Mich.App. 328, 331, 233 N.W.2d 274 (1975), Vacated on other grounds, 397 Mich. 71, 243 N.W.2d 255 (1976), the scope of judicial consideration is sharply limited.

"Public policy in this state favors arbitration in the resolution of disputes. Kaleva-Norman-Dickson School District No. 6 v. Kaleva-Norman-Dickson School Teachers' Association, 393 Mich. 583, 227 N.W.2d 500 (1975). Arbitration clauses contained in contracts are to be liberally construed, Stadel v. Granger Brothers, Inc., 4 Mich.App. 250, 258, 144 N.W.2d 609 (1966), resolving any doubts about the arbitrability of an issue in favor of arbitration. Chippewa Valley Schools v. Hill, 62 Mich.App. 116, 233 N.W.2d 208 (1975), Lv. den., 395 Mich. 806 (1975). If the arbitration clause arguably includes the asserted dispute, then arbitration should be ordered upon proper motion. GCR 1963, 769. Kaleva-Norman-Dickson School District No. 6 v. Kaleva-Norman-Dickson School Teachers' Association, supra, 393 Mich. at 592, 227 N.W.2d 500; Board of Control of Ferris State College v. Ferris Faculty Association, 72 Mich.App. 244, [92 MICHAPP 304] 249 N.W.2d 375 (1976)." Campbell v. Community Service Ins. Co., 73 Mich.App. 416, 419, 251 N.W.2d 609, 610 (1977).

See also American Fidelity Fire Ins. Co. v. Barry, 80 Mich.App. 670, 673-674, 264 N.W.2d 92 (1978), Lv. den. 402 Mich. 915 (1978).

"Absent an 'Express provision excluding (a) particular grievance from arbitration' or the 'Most forceful evidence of a purpose to exclude the claim', (emphasis supplied) the matter should go to arbitration:" Kaleva, supra, 393 Mich. at 592, 227 N.W.2d at 504, quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-585, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

The arbitrability of an issue requires a three-stage inquiry: (1) whether there exists an arbitration agreement in a contract between the parties, (2) whether the dispute is arguably covered by the contract and arbitration clause, and (3) whether the dispute is expressly exempt by the terms of the contract. American Fidelity Fire Ins. Co., supra, at 674-676,264 N.W.2d 92.

Applying the foregoing principles to the case at bar, the collective bargaining agreement plainly contains an arbitration clause. Article IV specifically permits the settlement of grievances by means of binding arbitration at the grievant's option. As noted Supra, Article IV defines a grievance, Inter alia, to include any alleged violation of Act 78. Section 14 of that act provides that "(n)o member of any fire or police department within the terms of this act shall be removed, discharged, * * * suspended or otherwise punished Except for cause, * * * " M.C.L. § 38.514; M.S.A. § 5.3364 (emphasis supplied). Defendants' allegation, that Contrera's suspension and discharge without cause is arguably[92 MICHAPP 305] covered by the arbitration clause, cannot be said to lack merit.

Plaintiff maintains, however, that Article V excludes suspensions and discharges from coverage by the arbitration clause due to its specific reference to Act 78 only. We cannot agree. In our opinion, Article V does not Expressly exclude arbitration of such disciplinary actions since it does not mention arbitration at all. Hence, at best, its meaning is amorphous. In effect, plaintiff invites us to engage in a practice denigrated by the Supreme Court:

"Where a court finds itself weighing the pros and cons of each party's interpretation of substantive provisions of the contract, it is likely that the court has gone astray. The question for the court is not whether one interpretation or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct." Kaleva, supra, 393 Mich. at 595, 227 N.W.2d at 506.

The contract provisions in the case at bar are not unlike those presented in Kaleva where the Court found that the dispute as to whether or not the contract applied was subject to arbitration to determine the meaning and the application of the contract. Accordingly, we hold, on these facts, that whether the collective bargaining agreement provides for an alternative method of review via arbitration of disputes as to disciplinary actions over and beyond the Civil Service provisions is a preliminary question which is subject to arbitration.

However, we must next determine whether the adoption of Act 78 by a public employer precludes the enforcement of a binding arbitration clause [92 MICHAPP 306] regarding disciplinary action negotiated pursuant to the PERA.

There can be no quarrel that the Article IV grievance schedule, as it relates to disciplinary procedures, was a legitimate exercise of collective bargaining. Section 15 of the PERA requires that a public employer bargain collectively "with respect to wages, hours, and other terms and conditions of employment * * * ", M.C.L. § 423.215; M.S.A. § 17.455(15). In Pontiac Police Officers Ass'n v. Pontiac, 397 Mich. 674, 677, 681, 246 N.W.2d 831 (1976), the Supreme...

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4 cases
  • Board of Governors of State Colleges and Universities on Behalf of Northeastern Illinois University (BOG) v. Illinois Educational Labor Relations Bd.
    • United States
    • United States Appellate Court of Illinois
    • 9 Junio 1988
    ...teacher's discipline even if the arbitrator's decision was contrary to the civil service board's decision); Township of Clinton v. Contrera (1979), 92 Mich.App. 297, 284 N.W.2d 787. In AFSCME v. County of Lancaster (1978), 200 Neb. 301, 263 N.W.2d 471, the county refused to bargain about ma......
  • Whitehouse v. Hoskins Mfg. Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • 31 Marzo 1982
    ...and arbitration clause, and (3) whether the dispute is expressly exempt by the terms of the contract." Clinton Twp. v. Contrera, 92 Mich.App. 297, 304, 284 N.W.2d 787 (1979). Defendant notes that the collective bargaining agreement between defendant and the union representing the production......
  • Miller v. Swanson, Docket No. 78-3174
    • United States
    • Court of Appeal of Michigan — District of US
    • 22 Enero 1980
    ...v. Barry, 80 Mich.App. 670, 674-676, 264 N.W.2d 92 (1978), lv. den. 402 Mich. 915 (1978), and again stated in Clinton Twp. v. Contrera, 92 Mich.App. 297, 284 N.W.2d 787 (1979). Also, both parties agree that parts (1) and (3) of the Barry test are met. Thus, the narrow issue before us is whe......
  • Northland Ins. Co. v. Sny
    • United States
    • Court of Appeal of Michigan — District of US
    • 2 Julio 1980
    ...Inter-Insurance Exchange v. Reck, 90 Mich.App. 286, 290, 282 N.W.2d 292 (1979), lv. den., 407 Mich. 870 (1979); Clinton Twp. v. Contrera, 92 Mich.App. 297, 284 N.W.2d 787 (1979). Thus, the dispute is arbitrable and the summary judgment was properly granted. See Lanzo Construction Co. v. Por......

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