TOWNSHIP OF CLAY V HERMAN MONTVILLE
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STATE OF MICHIGAN
COURT OF APPEALS
TOWNSHIP OF CLAY,
UNPUBLISHED
June 17, 2004
Plaintiff/Counter-DefendantAppellant,
v
No. 248293
St. Clair Circuit Court
LC No. 02-001275-AA
HERMAN MONTVILLE,
Defendant-Appellee,
and
MICHIGAN ASSOCIATION OF POLICE,
Defendant/Counter-Plaintiff-
Appellee.
Before: Smolenski, P.J., and White and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the order denying its claim of appeal to set aside an
arbitration award. This case arose when Corporal Montville was demoted after an administrative
investigation determined that on two separate occasions he violated certain policies of the Clay
Township Police Department (the Department).1 We affirm.
Review of arbitration awards is narrowly circumscribed. Lenawee Co Sheriff v Police
Officers Labor Council, 239 Mich App 111, 117; 607 NW2d 742 (1999).
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
1
Specifically, defendant was found to have violed section II of General Order No. 62-1 and
section K of step four of the progressive disciplinary process under Disciplinary Special Order
No. 99-15.
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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 NW2d 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. [Id.] 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. [Id.]; Ferndale Ed Ass’n v School
Dist for City of Ferndale No 1, 67 Mich App 637; 242 NW2d 478 (1976).
[Lincoln Park v Lincoln Park Police Officers Ass’n, 176 Mich App 1, 4; 438
NW2d 875 (1989).]
Here, the arbitrator’s authority was governed by an arbitration provision under the terms
of the parties’ collective bargaining agreement, which limited his decision strictly to the
interpretation, application, or enforcement of the specific articles of the agreement. Under this
grant of authority, the arbitrator first determined that the Department’s progressive disciplinary
guidelines were consistent with a just-cause employment relationship. After reviewing the
policies and facts, the arbitrator then concluded that there was no question that Corporal
Montville violated the Department’s express policy codified in order no. 62-1; however, the
policy had not been followed strictly by all officers in every given situation. Thus, when the
Chief was advised of the first incident, he should have discussed the matter with Corporal
Montville or reaffirmed the written policy. According to the arbitrator, demoting Corporal
Montville because of the accumulation of the two events was unreasonable considering that the
second incident might not have occurred if proper notice had been given after the first incident.
According to plaintiff, the arbitrator’s award in this case is similar to the arbitrator’s
erroneous decision in Lenawee Co Sheriff, supra, where this Court found that the arbitrator
exceeded his authority by sympathizing with the discharged police officer and by finding that
strict application of the sheriff department’s rules caused an unjust result despite the fact that an
express provision of the collective bargaining agreement mandated discharge under the
circumstances. See Monroe Co Sheriff v Fraternal Order of Police, Lodge 113, 136 Mich App
709, 718-719; 357 NW2d 744 (1984) (arbitrators have no authority to impose a less severe
penalty where the agreement clearly reserves to the employer, without being subject to review by
an arbitrator, the power to discharge for the infraction). However, we find that Lenawee, supra,
is distinguishable from the present case because, here, there is no unambiguous language
establishing that demotion was mandatory for the violations at issue.
The present case is more closely analogous to Lincoln Park, supra, where we found that
the arbitrator did not exceed his authority because, although it was undisputed that the officer
violated department regulations, the regulations made it clear that the penalty of discharge was
optional. Thus, this Court found that the arbitrator was free to determine that the officer’s
dismissal was not justified. Id. at 6. Similarly, here, the collective bargaining agreement and the
Department’s progressive disciplinary guidelines do not mandate any particular discipline; they
expressly provide for review of the reasonableness of any disciplinary action, including
discharge, by an arbitrator. In absence of language clearly and unambiguously to the contrary,
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an arbitrator may determine that, while an employee is guilty of some infraction, the infraction
was not just cause for the discipline, and the arbitrator may impose a less severe penalty.
Monroe Co Sheriff, supra at 718.
It cannot be said that the arbitrator exceeded his authority in determining whether there
was reasonable just cause for the discipline imposed. The arbitrator believed that it was
unreasonable to demote Corporal Montville because of both events when Corporal Montville
was working under the presumption that the policy in question was not always strictly enforced
and when the second incident could arguably have been prevented if Chief Eder had taken more
immediate action to ensure that the order was being enforced. Although there was no question
that Corporal Montville was guilty of some infraction, it was within the scope of the arbitrator’s
authority to determine that the infraction did not amount to just cause for demotion and instead
impose some less severe penalty. See Monroe Co Sheriff, supra at 718. Despite plaintiff’s
contentions, we do not agree that the arbitrator strayed from interpretation and application of the
agreement or that he was dispensing “his own brand of industrial justice.” See Major League
Baseball Players Ass’n v Garvey, 532 US 504, 509; 121 S Ct 1724; 149 L Ed 2d 740 (2001).
The arbitrator merely interpreted the relevant disciplinary provisions and drew the essence of his
award from the parties’ collective bargaining agreement.
Plaintiff also argues that reducing Corporal Montville’s punishment to a mere one-day
suspension undermined the important public policy concern regarding vigilant enforcement. We
disagree. There is a limited public policy exception to the general rule of judicial deference to
arbitrator’s awards, Gogebic Medical Care Facility v AFSCME Local 992, AFL-CIO, 209 Mich
App 693, 697; 531 NW2d 728 (1995). But
a court’s refusal to enforce an arbitrator’s interpretation of [a collective
bargaining agreement] is limited to situations where the contract as interpreted
would violate “some explicit public policy” that is “well-defined and dominant,
and is to be ascertained ‘by reference to the laws and legal precedent and not from
general considerations of supposed public interest.’” [Lincoln Park, supra at 6-7;
quoting United Paperworkers International Union, AFL-CIO v Misco, Inc, 484
US 29, 43; 108 S Ct 364; 98 L Ed 2d 286 (1987), quoting W R Grace & Co v
Local 759, International Union of the United Rubber, Cork, Linoleum & Plastic
Workers of America, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983),
quoting Muschany v United States, 324 US 49, 66; 65 S Ct 442; 89 L Ed 744
(1945) (emphasis in United Paperworkers, supra).]
To constitute a violation of public policy, the award must essentially have the effect of
mandating illegal activity or causing an employer to act unlawfully. See Lincoln Park, supra at
7-8 (enforcing arbitrator’s award because there was no legal proscription against reinstating the
officer under the circumstances); cf Gogebic, supra at 697-698 (vacating arbitrator’s award
because it was in direct conflict with a federal regulation); see, generally, Lansing Community
College v Lansing Community Chapter of the Mich Ass’n for Higher Ed, 161 Mich App 321; 409
NW2d 823 (1987), vacated 429 Mich 895, on remand 171 Mich App 172 (1988).
Here, we find that the arbitrator’s decision that Corporal Montville’s conduct did not
warrant a demotion and that a suspension would instead suffice did not violate the public policy
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against drunk driving. Corporal Montville was not himself guilty of engaging in the proscribed
illegal activity; rather, his improper conduct was his failure to strictly adhere to the Department’s
policy. See Police Officers Ass’n of Michigan v Manistee Co, 250 Mich App 339, 347; 645
NW2d 713 (2002) (holding that while maintaining safety at a county jail is an important public
policy, the sheriff’s behavior was not so egregious that reinstatement to his job would undermine
that public policy). The arbitrator determined that, under the circumstances, a one-day
suspension was the appropriate level of discipline to make the point that such conduct was not
condoned. Thus, this Court must give deference to the arbitrator’s interpretation of the parties’
agreement.
Affirmed.
/s/ Michael R. Smolenski
/s/ Helene N. White
/s/ Kirsten Frank Kelly
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