BRENDA MERKEL V LINCOLN CONSOLIDATED SCHOOLS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BRENDA MERKEL and LINCOLN
EDUCATION ASSOCIATES ORGANIZATION,
MEA/NEA,
UNPUBLISHED
October 19, 2010
Plaintiffs/Cross-DefendantsAppellants,
v
No. 292795
Washtenaw Circuit Court
LC No. 09-000183-CL
LINCOLN CONSOLIDATED SCHOOLS and
LINCOLN CONSOLIDATED SCHOOLS
BOARD OF EDUCATION,
Defendants/Cross-PlaintiffsAppellees.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
PER CURIAM.
Plaintiffs/Counter-Defendants Brenda Merkel and Lincoln Education Associates
Organization, MEA/NEA, appeal as of right the order denying their motion for summary
disposition, dismissing with prejudice their “Complaint to Vacate Arbitration Award,” granting
defendants’ motion for summary disposition, and enforcing the arbitration award in favor of
defendants. This action stems from the trial court's review of an arbitrator's order in a grievance
brought pursuant to the parties' collective bargaining agreement. (CBA). We affirm.
Defendant Lincoln Consolidated School District and plaintiff Lincoln Education
Associates Organization (LEAO) were parties to a collective bargaining agreement. Plaintiff
Brenda Merkel was an employee of the district, and LEAO was her bargaining agent.
On October 5, 2007, plaintiffs filed a grievance with the school district pursuant to
Article VII of the agreement, asserting that Merkel was entitled to additional health benefits
under the agreement. The grievance procedure in Article VII (B) contains 5 steps. Step 5 states:
If the LEAO is not satisfied with the disposition of the grievance at Step 4,
or if no disposition has been made within the period provided here, the grievance
shall be submitted to arbitration within fifteen (15) working days.
-1-
The district’s disposition of the matter at Step 4 resulted in a denial of Merkel’s grievance on
October 9, 2007. Plaintiffs filed their demand for arbitration pursuant to Step 5 on November 2,
2007 – 18 working days after the disposition of the grievance at Step 4.
Article VII (C) of the agreement states that “powers of the arbitrator are subject to the
following limitation”:
***
2. If either party disputes the arbitrability of any grievance under the terms of this
Agreement, the arbitrator shall first render a decision as to the arbitrability
thereof. Should the grievance be determined nonarbitrable, it shall be returned to
the parties with no opinion on its merits.
Article VII (E) of the agreement states that “the time limits provided in this Article shall
be strictly observed but may be extended by written agreement of the parties.”
An arbitration hearing was held on October 13, 2008.1 Following the hearing, the parties
filed post-hearing arbitration briefs. In a decision dated December 15, 2008, the arbitrator
concluded, “after a thorough review of the evidence submitted by the parties, together with their
helpful post-hearing briefs,” that he did not have jurisdiction to resolve the dispute because
plaintiffs failed to submit the grievance to arbitration within fifteen days of the disposition of the
grievance at Step 4.
In February 2009, plaintiffs filed the present action in circuit court to vacate the
arbitration award. Plaintiffs alleged that defendants failed to raise the issue of the arbitrability of
the grievance during the arbitration hearing, but instead raised the issue for the first time in its
post-hearing brief. Plaintiffs contended that the arbitrator exceeded his authority by considering
evidence not presented at the hearing. In response, on April 3, 2009, defendants filed a
counterclaim for enforcement of the arbitration award in which it asserted that the arbitrator
correctly determined that it did not have authority to decide the grievance and that defendants
were entitled to have the arbitration award confirmed into a judgment.
On May 8, 2009, defendants filed a motion for summary disposition of plaintiffs’
complaint to vacate the arbitration award on the ground that the motion was untimely under
MCL 3.602(J). Plaintiffs thereafter filed a motion for summary disposition on May 20, 2009. In
response, defendants requested an order denying plaintiffs’ motion for summary disposition and
confirming the arbitration award.
At a June 10, 2009, hearing with respect to both parties’ motions for summary
disposition, the trial court denied plaintiffs’ motion for summary disposition and dismissed
plaintiffs’ complaint to vacate the arbitration award. The trial court opined in part:
1
This Court does not have a transcript of the arbitration hearing.
-2-
Plaintiff clearly got her day in -- in arbitration. The arbitrator properly resolved
the issue of arbitrability of the grievance before reaching the merits of the
agreements as the CBA instructs. Plaintiff even points out in her brief that the
CBA requires that “if the grievance is not arbitrable the arbitrator shall render no
decision on the merits.” That is exactly what the arbitrator did here.
The arbitrator obviously had to hear proofs about the filing of the grievance in
order to come to his conclusion concerning arbitrability. The arbitrator found
“after a thorough review of the evidence” that the late filing of the grievance was
a “fatal flaw,” and that “given that finding” he was required to determine that the
grievance is non-arbitrable.
Plaintiffs contend that the trial court erred by granting summary disposition in favor of
defendants. A trial court's decision to enforce, vacate or modify an arbitration award is reviewed
de novo on appeal. Ann Arbor v AFSCME Local 369, 284 Mich App 126, 144; 771 NW2d 843
(2009). Questions of law, including the proper interpretation of a contract, are also reviewed de
novo. Wold Architects & Engineers v Strat, 474 Mich 223, 229; 713 NW2d 750 (2006);
Archambo v Lawyers Title Ins Corp, 466 Mich 402, 408; 646 NW2d 170 (2002).
MCL 423.9d governs arbitration of labor disputes. Serv Employees Internat'l Union
Local 466M v Saginaw, 263 Mich App 656, 660; 689 NW2d 521 (2004). Lenawee County v
Police Officers' Labor Council, 239 Mich App 111, 118; 607 NW2d 742 (1999), citing Lincoln
Park v Lincoln Park Police Officers Ass'n, 176 Mich App 1, 4, 438 NW2d 875 (1989), set forth
the limited review of labor arbitration decisions that this Court must employ:
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. 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. 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. [ (Citations omitted.) ]
An action to enforce or vacate an arbitration award is subject to a six-year limitations period.
Ann Arbor v AFSCME Local 369, 284 Mich App 126, 143; 771 NW2d 843 (2009).
Plaintiffs initially contend that defendants failed to meet their burden of proof “with
respect to their own motion for summary disposition under MCR 3.602(J).” Defendants first
moved for summary disposition of plaintiffs’ complaint to vacate the arbitration award on the
-3-
basis of MCR 3.602(J)2. Plaintiffs thereafter filed a motion for summary disposition.
Defendants filed a reply to plaintiffs’ motion for summary disposition and sought summary
disposition pursuant to MCR 2.116(I)(2) on the ground that plaintiffs failed to comply with Step
5 of the grievance procedure by failing to submit the grievance to arbitration within 15 working
days after the disposition of the grievance at Step 4 – which is the same argument that was raised
by defendants in their counterclaim for enforcement of the arbitration award. The trial court
denied plaintiffs’ motion for summary disposition and granted defendants’ motion for summary
disposition on the ground that the grievance was not arbitrable because plaintiffs failed to submit
the grievance to arbitration within 15 working days after the disposition of the grievance at Step
4 as required by the CBA. A review of the record clearly reveals that summary disposition in
favor of defendants was not granted on the basis of MCR 3.602(J). Thus, plaintiffs’ argument in
this regard is misplaced.
The gist of plaintiffs’ argument is that the arbitrator exceeded the scope of his authority
by considering evidence presented for the first time in defendants’ post-hearing brief.
Defendants contend that both the arbitrator’s decision and the plaintiffs’ own post-hearing brief
illustrate that the issue of arbitrability was raised, and that the CBA expressly provides that “if
either party disputes the arbitrability of any grievance under the terms of this Agreement, the
arbitrator shall first render a decision as to the arbitrability thereof” [Emphasis added].
Procedural matters arising out of an arbitrable dispute are for the arbitrator, and not the
court, to determine. Bennett v Shearson Lehman-American Express, Inc, 168 Mich App 80, 83;
423 NW2d 911 (1987). As such, the timeliness of bringing an arbitration proceeding is a
procedural issue to be determined by the arbitrator rather than the courts. Id.; see also Nielsen v
Barnett, 440 Mich 1, 10, 485 NW2d 666 (1992).
The parties’ CBA in this case provides that (1) the grievance shall be submitted to
arbitration within fifteen (15) working days, (2) if either party disputes the arbitrability of any
grievance under the terms of the agreement, the arbitrator shall first render a decision as to the
arbitrability thereof, and (3) that “the time limits provided in this Article shall be strictly
observed but may be extended by written agreement of the parties.” In his decision, the
arbitrator stated as follows:
After a thorough review of the evidence submitted by the parties, together with
their helpful post-hearing briefs, I find that one of the procedural issues raised by
the District is controlling. . . . The parties’ CBA [collective bargaining
agreement] says that time limits must be strictly adhered to and there is no
question that the appeal to arbitration came beyond the fifteen (15) day time limit.
Therefore, I find that I have no jurisdiction to resolve this dispute. (Emphasis
added.)
Plaintiffs’ post-hearing brief acknowledges that arbitrability was raised:
2
MCR 3.602 is not applicable to arbitration involving labor disputes.
-4-
The Employer through cross-examination of the grievant tried to raise an
arbitrability issue. The employer did ask questions as it related to where the
grievance was initiated. Arbitrator Jason asked the Employer whether he was
raising the issue of arbitrability. The Employer never responded to the question.
The Association contents [sic] arbitrability is not an issue. Again, the Employer
never responded to Arbitrator Jason’s question which leaves the Association with
the opinion that it really is not an issue.
Although plaintiffs contend that they did not believe that arbitrability was an issue, the
arbitrator’s written decision reveals otherwise. As noted by the trial court, “the arbitrator
obviously had to hear proofs about the filing of the grievance in order to come to his conclusion
concerning arbitrability.” The trial court correctly ruled that “The Arbitrator properly resolved
the issue of arbitrability of the grievance before reaching the merits of the agreement as the CBA
instructs,” correctly dismissed plaintiffs’ complaint with prejudice, and properly enforced the
arbitration award.
Affirmed.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
