Ferris State College v. Ferris Faculty Ass'n

249 N.W.2d 375, 72 Mich. App. 244, 94 L.R.R.M. (BNA) 2567, 1976 Mich. App. LEXIS 1088

• Court: Michigan Court of Appeals
• Decided: November 9, 1976
• Docket: Docket 26796
• Status: Published

Opinions

R. B. Burns, P. J.

Plaintiff filed a complaint in circuit court seeking an injunction to prohibit defendant from proceeding with the arbitration of a dispute that plaintiff maintained was nonarbitrable. The circuit court granted plaintiff’s motion for summary judgment and issued the permanent injunction from which defendant now appeals.

This case arises from the termination of the employment of Dr. Henry Osowski by Ferris State College, and is concerned with the relationship of this termination to the collective bargaining agreement negotiated by the parties herein.

Dr. Osowski was hired by Ferris State on September 10, 1969 to begin as a full-time faculty member on January 3, 1970. On May 14, 1974, Dr. Osowski was informed by a communication from the president of the college that his "overall performance as a professional faculty member * * * [was] judged not to be satisfactory”, and that he therefore would "not be appointed to a permanent position and [would] not be granted tenure * * * By the same document, however, Dr. Osowski was offered a one year "termination contract” for the 1974-1975 academic year which he subsequently signed after recourse to counsel. This contract also recited that Dr. Osowski would "not be granted tenure”.

On May 28, 1975, Dr. Osowski filed a grievance alleging violation of numerous sections of the collective bargaining agreement. Following a denial of the grievance, defendant herein requested arbitration on Dr. Osowski’s behalf. Plaintiff responded by obtaining the injunction, and this appeal has ensued.

We have concluded that the circuit court committed clear error in granting the injunction. While the question of arbitrability is to be determined by the court, the judicial policy of sharply limiting the scope of the court’s consideration of this question is undisputed.

In Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers’ Association, 393 Mich 583, 592; 227 NW2d 500, 504 (1975), the Supreme Court adopted the language of United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347, 1353; 4 L Ed 2d 1409, 1417-1418 (1960), to guide lower courts in determining whether a dispute should go to arbitration:

" '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’. * * * Absent an 'express provision excluding [a] particular grievance from arbitration’ or the 'most forceful evidence of a purpose to exclude the claim’, * * * the matter should go to arbitration”. (Emphasis supplied by Michigan Supreme Court).

The Kaleva Court further depicted the judicial inquiry as (at 591) "confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract (emphasis in original)”, and portrayed its posture of restraint with unmistakable clarity (at 595):

"[W]here 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.”

The circuit court unavoidably weighed the "pros and cons” in deciding to issue the injunction. Resolution of this case hinges on Dr. Osowski’s status as probationary or tenured under the collective bargaining agreement. Plaintiff asserts the language of § 3.2B of the agreement that "the employment status of probationary employees rests solely with the college and [is] not subject to grievance review”. Defendant counters that the termination contract accepted by Dr. Osowski extended his service beyond the maximum probationary period provided for by § 3.2A (5 years), thus automatically rendering Dr. Osowski tenured and protected from summary dismissal under the "just cause” provision of § 3.1 of the agreement. We think it apparent that this is a squabble which "on its face is governed by the contract”. Kaleva dictates that such disputes involving the interpretation and application of a collective bargaining agreement must be resolved by an arbitrator. Plaintiff has not borne the burden of demonstrating through "most forceful evidence” that the arbitration clause of the collective bargaining agreement intended to exclude Dr. Osowski’s claim. The decision of the circuit court is reversed.

Plaintiff contends further that Dr. Osowski’s grievance is not arbitrable because of certain procedural failures of timeliness. Such an argument was answered by the United States Supreme Court in John Wiley & Sons, Inc v Livingston, 376 US 543, 557; 84 S Ct 909, 918; 11 L Ed 2d 898, 909 (1964):

"Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.”

This Court concurred in Ferndale Education Association v Ferndale School District #1, 67 Mich App 637, 643; 242 NW2d 478, 480 (1976), that "[o]nce substantive arbitrability is determined * * * judicial review effectively ceases”.

The injunction is dissolved and the cause is reversed and remanded for arbitration. Costs to defendant.

T. M. Burns, J., concurred.