Flint School Dist. v. Service Employees Intern. Union, AFL-CIO, AFL-CI
| Citation | 168 Mich.App. 180,423 N.W.2d 608 |
| Decision Date | 08 June 1988 |
| Docket Number | D,Docket No. 95673,AFL-CI |
| Parties | , 46 Ed. Law Rep. 1219 FLINT SCHOOL DISTRICT, a Michigan public corporation, Plaintiff-Appellee, v. SERVICE EMPLOYEES INTERNATIONAL UNION,efendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
C. Rees Dean, Flint, for plaintiff-appellee.
Howard R. Grossman and Donald H. Robertson, Flint, for defendant-appellant.
Before DANHOF, C.J., and MacKENZIE and JOSLYN, * JJ.
Defendant appeals as of right from an order of the circuit court granting summary disposition to plaintiff and vacating an arbitration award. The arbitration award sustained defendant's grievance that plaintiff had violated a collective bargaining agreement by contracting out normal bargaining unit work. The circuit court vacated the award on the basis that the dispute was not arbitrable and that the arbitrator had exceeded the scope of his authority. We affirm the order of the circuit court on the basis that the arbitrator exceeded the scope of his authority.
Plaintiff (the school district) and defendant (the union) entered into collective bargaining agreements covering the periods July 1, 1982, to June 30, 1984, and July 1, 1984, to June 30, 1987. The agreements contained grievance procedures and provided for binding arbitration. The provisions in both contracts that are at issue in the present case are identical. The agreements will be referred to collectively as the collective bargaining agreement. The school district and the union also entered into a letter of agreement that was designated Appendix G and was attached to the collective bargaining agreement. Appendix G set forth the circumstances under which the school district could contract out normal bargaining unit work.
In 1984 and 1985, the school district employed ten persons who were classified as roofers. The job description of roofers was not contained in the collective bargaining agreement. However, the school district's job description of roofers included the repair of various types of roofs as one of their duties.
The school district determined that many of its buildings needed to have their existing roofs removed and replaced with new roofs. In June and July, 1984, the school district awarded contracts to private roofing contractors to remove and replace the roofs on nine of its school buildings.
The union filed a grievance alleging that the school district had violated the collective bargaining agreement by contracting out normal bargaining unit work. The relief sought by the union was payment of overtime that the bargaining unit employees would have received had the work not been contracted out. The school district asserted that the work was not normal bargaining unit work and that, even if it was, it fell under several of the circumstances in which normal bargaining unit work could be contracted out in accordance with Appendix G of the collective bargaining agreement.
The union narrowed its objection to the contracting out of the roofing work on three of the nine school buildings. The union conceded that the bargaining unit employees could not have completed all three jobs within the time requirements. However, the union contended that bargaining unit employees could have done either the largest project or the two smaller projects.
The grievance proceeded to arbitration. The school district voluntarily participated in arbitration and maintained its position that the work was not normal bargaining unit work and, even if it was, the circumstances in Appendix G applied. The arbitrator found that the work was normal bargaining unit work. The arbitrator reasoned that, although the roofers' job description included the repair of roofs, replacement of a roof was only a matter of degree. In addition, the arbitrator considered whether any of the circumstances in Appendix G applied and determined that they did not. The arbitrator awarded the union damages by using a formula that was based on the difference between the number of hours worked by the outside contractors and the number of hours worked by the bargaining unit employees during the same period.
The school district filed suit in circuit court to vacate the arbitration award. The school district argued that the grievance was not arbitrable and that the arbitrator had exceeded the scope of his authority by deciding matters not subject to arbitration. The union filed a counterclaim seeking enforcement of the arbitration award. Both sides filed motions for summary disposition.
The circuit court granted the school district's motion for summary disposition on the grounds that the grievance was not arbitrable and the arbitrator had exceeded the scope of his authority. The circuit court ruled that it was beyond the arbitrator's authority to decide that this was normal bargaining unit work and that the arbitrator added to the job description of the employees. In addition, the circuit court ruled that the arbitrator was without authority to decide that the work was a reasonable opportunity for overtime for the employees. On appeal, the union argues that the trial court erroneously ruled that the dispute was not arbitrable because the school district waived the issue of arbitrability and that the circuit court erroneously ruled that the arbitrator exceeded the scope of his authority.
First, the union argues that the circuit court erred in ruling that the parties' dispute was not arbitrable because the school district waived that issue. We agree that, by voluntarily participating in arbitration, the school district waived the issue of the arbitrability of the claim. In American Motorists Ins. Co. v. Llanes, 396 Mich. 113, 240 N.W.2d 203 (1976), the plaintiff voluntarily participated in arbitration without raising the issue of whether the claim was arbitrable. Our Supreme Court held that plaintiff could not challenge the unfavorable award in court by complaining for the first time that the issue was excluded from arbitration.
In Arrow Overall Supply Co. v. Peloquin Enterprises, 414 Mich. 95, 323 N.W.2d 1 (1982), defendant did not participate in the arbitration proceedings. Plaintiff filed a circuit court action to confirm the award and defendant argued that there was no valid agreement to arbitrate because the agreement to arbitrate was signed by an employee without authorization. Our Supreme Court held that defendant had not waived the issue of the arbitrability of the claim. The Court distinguished Llanes on the basis that "Llanes stands for the proposition that a party may not participate in an arbitration and adopt a 'wait and see' posture, complaining for the first time only if the ruling on the issue submitted is unfavorable." Arrow Overall Supply Co., supra, pp. 99-100, 323 N.W.2d 1.
In the present case, the school district voluntarily participated in the arbitration proceedings without raising the issue of whether this grievance was, on its face, intended by the parties to be submitted to arbitration. Therefore, the circuit court should not have considered the issue of whether this was a grievance that was arbitrable.
Even though the school district waived the issue of arbitrability, it did not waive the issue of whether the arbitrator exceeded the scope of his authority. In Port Huron Area School Dist. v. Port Huron Ed. Ass'n, 426 Mich. 143, 393 N.W.2d 811 (1986), our Supreme Court explained that the issue of arbitrability involves looking at a claim on its face to determine whether the parties agreed to submit this type of claim to arbitration. However, even if a claim is arbitrable on its face, the arbitrator may exceed the scope of his authority if the "arbitral award reaches beyond the boundaries of the 'submission.' " Port Huron Area School Dist., supra, pp. 161-162. 393 N.W.2d 811. Therefore, even though the school district waived the issue of arbitrability, the circuit court properly considered the issue of whether the arbitrator exceeded the scope of his authority.
In Port Huron Area School Dist., the Court determined that the award was unenforceable because the arbitrator had exceeded his jurisdiction and authority under the collective bargaining agreement. The arbitrator found that a section of the agreement's preamble had been violated. However, the Court noted that the agreement expressly provided that grievances concerning the preamble were not subject to arbitration. The arbitrator also found that a management policy decision was not reasonable or necessary. However, the agreement specifically provided that the arbitrator had no power to substitute his judgment for that of the school district as to the reasonableness of any practice, policy,...
To continue reading
Request your trial
-
Azcon Const. Co., Inc. v. Golden Hills Resort, Inc.
...the arbitration panel it is waived. O'Malley v. Petroleum Maintenance Co., 48 Cal.2d 107, 308 P.2d 9 (1957); Flint Sch. Dist. v. AFL-CIO, 168 Mich.App. 180, 423 N.W.2d 608 (1988) rev'd on other grounds, 431 Mich. 907, 433 N.W.2d 76 (1988); American Motorists Insurance Company v. Llanes, 396......
-
School Dist. of City of Flint v. Service Employees Intern. Union, AFL-CIO Local 591, Unit 100
...No. 83207. 431 Mich. 907, 433 N.W.2d 76, 50 Ed. Law Rep. 1189 Supreme Court of Michigan. Dec. 20, 1988. Prior report: 168 Mich.App. 180, 423 N.W.2d 608. ORDER On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave......