Opinion
Docket No. 78-5449.
Decided March 17, 1980. Leave to appeal applied for.
Varnum, Riddering, Wierengo Christenson (by Terrance R. Bacon), for plaintiff.
Timothy G. Holland, for defendant.
Before: D.F. WALSH, P.J., and R.B. BURNS and J.H. GILLIS, JJ.
In April 1978, James Hoogerhyde filed suit in the United States District Court or the Western District of Michigan against the City of Grand Rapids, the city's police chief, and Ronnie Stevens, a former police officer for the city. Defendant Stevens asked that the city assume the costs of his defense and indemnify him in the event of any judgment rendered against him for actions taken in the course of his official duties. The city refused Stevens' request.
In May 1978, defendant Fraternal Order of Police, Grand Rapids Lodge No. 97 (FOP), filed a grievance with Chief Robert Anderson claiming that the city's action violated various sections of the parties' collective bargaining agreement. When the grievance was denied at this step, defendant FOP submitted its demand to Joseph Zanea, City Manager. The record on appeal does not disclose any answer at this step but we assume that the grievance was denied and such information given to defendant. On June 19, 1978, defendant FOP filed its demand for arbitration of the grievance with the American Arbitration Association.
Approximately ten days before FOP filed its arbitration demand, defendant Stevens had filed a crossclaim against the city in the Federal court action asking that the city be held responsible for his costs and for satisfaction of any judgment rendered against him. When FOP made its demand for arbitration the city brought this action in the Circuit Court for the County of Kent asking that the arbitration proceedings be enjoined on the ground that since the crossclaim had been initiated the matter was no longer subject to the grievance procedure. The circuit court judge granted the injunction, stating:
"The initiation of a crossclaim in Case No. G 78-148 CA 1, in the United States District Court for the Western District of Michigan, estops defendants from proceeding in the arbitration of the same dispute."
The circuit court relied upon Article VIII, § 3(b) of the collective bargaining agreement which reads:
"If proceedings involving any matter which is or might be alleged as a grievance are instituted in any administrative action before a government board or agency, or in any court, then such administrative or judicial proceedings shall be the sole remedy; and grounds for a grievance under this agreement shall no longer exist. Injunctions, temporary restraining orders, or actions under Veteran's preference shall not be considered part of the grievance procedure."
Arbitration is a matter of contract. Kaleva-Norman-Dickson School District No. 6 v Kaleva-Norman-Dickson School Teachers' Ass'n, 393 Mich. 583; 227 N.W.2d 500 (1975).
In the present case, the parties entered into a collective bargaining agreement under the authority of the public employment relations act (PERA). MCL 423.201 et seq.; MSA 17.455(1) et seq. Article VIII of their contract delineates the grievance procedure to be employed by the parties and it provides for arbitration as the final step of the grievance procedure.
The Michigan Supreme Court has held that arbitration in the resolution of disputes is favored by the public policy of our state, KND School District, supra, and the Court has noted the directive of the United States Supreme Court in United Steelworkers of America v Warrior Gulf Navigation Co, 363 U.S. 574; 80 S.Ct. 1347; 4 L.Ed.2d 1409 (1960), that arbitration clauses should be broadly applied.
The policy favoring arbitration of disputes is appropriate for contracts entered into under the PERA. KND School District, supra, 393 Mich at 591.
"The Court said, `An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' (Emphasis supplied.) 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." KND School District, 393 Mich at 592.
It is apparently undisputed that FOP had the right to initiate the grievance in the present case and, absent any action by defendant Stevens, to pursue the grievance through arbitration. What is at issue is whether, under Article VIII, § 3(b), FOP's right to pursue arbitration was terminated by the decision of its member, defendant Stevens, to seek a judicial determination on the matter. We have read Article VIII and have considered the course of its evolution and we find no forceful evidence of an intent to terminate FOP's right to arbitration where the individual grievant has made an election of remedies.
Under the PERA, defendant FOP is the exclusive representative of all the public employees in its unit. MCL 423.211; MSA 17.455(11). The Michigan Supreme Court has stated that authorized bargaining representatives have great discretion in processing grievances, Cortez v Ford Motor Co, 349 Mich. 108; 84 N.W.2d 523 (1957), and that discretion includes the independent right to bring a grievance. The power of defendant FOP to control the grievance procedures cannot be contingent on the pursuit or outcome of an employee's personal remedies.
In our opinion the FOP, as exclusive bargaining agent for the Grand Rapids Police Department, had a right to pursue a grievance on behalf of Ronnie Stevens and the entire lodge. No action by Ronnie Stevens could affect this right. The FOP had the right to file a grievance and to pursue such grievance through arbitration.
The trial court is reversed and the injunction set aside.
Costs to defendant FOP.
J.H. GILLIS, J., concurred.
I must respectfully dissent. I concur with the trial judge that the plain language of Article VIII, § 3(b), of the collective bargaining agreement expressly provides that this particular grievance is excluded from arbitration. Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers' Ass'n, 393 Mich. 583, 592; 227 N.W.2d 500 (1975). I find no language in Article VIII, § 3(b), which can be interpreted as requiring that the court proceeding must be instituted by the union rather than by the individual aggrieved party.
I would affirm.