D Michigan Afscme Council 25 v. County of Wayne ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN AFSCME COUNCIL 25 and UNPUBLISHED
AFFILIATED LOCAL 101, April 21, 2022
Plaintiffs-Appellants,
v No. 356320
Wayne Circuit Court
COUNTY OF WAYNE, LC No. 20-007378-CL
Defendant/Third-Party Plaintiff-
Appellee,
and
VICTOR PLESA,
Third-Party Defendant.
MICHIGAN AFSCME COUNCIL 25 and
AFFILIATED LOCAL 101,
Plaintiffs,
v No. 356322
Wayne Circuit Court
COUNTY OF WAYNE, LC No. 20-007378-CL
Defendant/Third-Party Plaintiff-
Appellee,
and
VICTOR PLESA,
Third-Party Defendant-Appellant.
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Before: JANSEN, P.J., and SAWYER and RIORDAN, JJ.
JANSEN, J. (dissenting)
For the reasons that follow, I respectfully dissent. I would reverse the trial court order
which (1) denied plaintiffs’ and Victor Plesa’s motions for summary disposition to confirm the
arbitrator’s award, (2) granted defendant and third-party plaintiff Wayne County summary
disposition, and (3) vacated the arbitrator’s award in favor of Plesa. Because the arbitrator did not
exceed his authority in issuing the award, the trial court erred in its rulings and should have
confirmed the arbitration award in favor of plaintiffs and Plesa.
Plesa was involved in an accident at work that resulted in serious injury to another
employee on November 8, 2018. At the time, Plesa had 20 years of seniority. On November 20,
2018, while disciplinary proceedings were pending, he applied for retirement effective January 1,
2019, which required his assent to a “separation waiver” stating, “You are terminating employment
and do not have any agreement, offer, or promise, oral or written, concerning employment.”
Defendant terminated Plesa’s employment the day after, November 21, 2018. Plesa filed a
grievance under the collective-bargaining agreement (CBA) seeking reinstatement of his
employment on December 3, 2018. And on December 17, 2018, the Wayne County Employees’
Retirement System (WCERS) approved his retirement, allowing him to transfer the entirety of his
retirement account funds into an individual retirement account. The grievance proceeded to
arbitration, which did not take place until May 2019, and the arbitrator determined that defendant
violated the just-cause termination provision of the CBA when it terminated Plesa in an opinion
issued in July 2019. As such, the arbitrator issued an award reducing Plesa’s termination to
suspension, reinstating his employment, and awarding him backpay. Plaintiff filed suit to enforce
the arbitration award, but the trial court concluded that the arbitrator exceeded his authority by
ordering reinstatement contrary to the separation waiver, and vacated the award. This was in error.
We review de novo the trial court’s decision to enforce, vacate, or modify an arbitration
award. Ann Arbor v AFSCME Local 369, 284 Mich App 126, 144; 771 NW2d 843 (2009). “In
general, courts have a limited role in reviewing arbitration awards.” TSP Servs, Inc v National-
Standard, LLC, 329 Mich App 615, 619; 944 NW2d 148 (2019).
A court may not review an arbitrator’s factual findings or decision on the merits.
Likewise, a reviewing court cannot engage in contract interpretation, which is an
issue for the arbitrator to determine. Nor may a court substitute its judgment for
that of the arbitrator. Hence, courts are reluctant to vacate or modify an award
when the arbitration agreement does not expressly limit the arbitrators’ power in
some way. The inquiry for the reviewing court is merely whether the award was
beyond the contractual authority of the arbitrator. If, in granting the award, the
arbitrator did not disregard the terms of his or her employment and the scope of his
or her authority as expressly circumscribed in the contract, judicial review
effectively ceases. Thus, as long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his authority, a court may not
overturn the decision even if convinced that the arbitrator committed a serious error.
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[Ann Arbor, 284 Mich App at 144 (quotation marks, citations, and brackets
omitted).]
Here, there is no indication that the arbitrator acted outside the scope of his contractual
authority or committed an error of law that is clearly apparent on the face of the award. 36th Dist
Court v Mich AFSCME Council 25, Local 917, 295 Mich App 502, 508-509; 815 NW2d 494
(2012), rev’d in part on other grounds 493 Mich 879 (2012). As explained in the majority, the
CBA incorporated a retirement ordinance that prohibited withdrawals from a retirement account
by employed individuals. Plesa signed the separation waiver when he applied for retirement. The
arbitrator correctly found that Plesa was not trying to retire yet maintain employment at the same
time. The award provides:
The point that cannot be overlooked is this: Had the County not violated the
contract on November 21st, the application for retirement would not have been acted
upon on December 17th and the Grievant would not have retired on January 1st. I
am unpersuaded that any of the County’s arguments that the Grievant cannot be
reinstated have merit.
Defendant applied for retirement as a means of support when his disciplinary proceedings were
pending. He would not have completed the retirement process had the grievance been resolved in
his favor before his application was accepted. Understandably, he needed a way to support
himself. This is not prohibited by the CBA, the retirement ordinance, or the retirement application.
Moreover, the language of the waiver makes no reference to reinstatement as a remedy for an
employer’s violation of the just-cause provision. The language is vague, and should not be
construed as a promise that precludes the applicant from seeking future employment.
Defendant argues, however, that the separation waiver precludes reinstatement. I disagree.
The arbitrator determined that because defendant violated the just-cause termination provision of
the CBA when it terminated Plesa’s employment, suspension rather than termination was the
appropriate discipline. The arbitration award states:
Except in the unusual circumstance that a fired employee stays on the
payroll while the case is appealed, termination cases always involve former
employees who want to regain their status as employees. Unlike situations not
involving just cause, an employee claiming he was unjustly terminated has access
to the grievance procedure. Because the Grievant’s failure to rescind the retirement
application before it was approved is directly attributable to the County’s violation
of Article 11.01 [the just-cause provision], his current status as ‘retired’ does not
limit the authority to order his reinstatement. [Emphasis added.]
This was a valid finding. It is not clearly wrong on the face of the award, nor does this finding go
beyond the arbitrator’s authority. Under the trial court’s limited authority to review an arbitration
award, its review should have ended, and the award enforced.
Moreover, the applicability of defenses to arbitration, including waiver, is for the arbitrator
to decide. 36th Dist Court, 295 Mich App at 518 n 6. The only two issues before the arbitrator
where (1) whether Plesa was terminated for just cause, and (2) if not, whether the remedy is limited
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to back pay rather than reinstatement. The separation waiver was raised before the arbitrator as a
defense, but not as a total bar to reinstatement. This issue was not raised by defendant until after
the award was entered and defendant was displeased with the result. Therefore, the arbitrator
properly treated it as an affirmative defense, which he did not find persuasive. Additionally,
defendant’s argument that the arbitration award is illegal or violates public policy because of
possible tax code violations is irrelevant. Neither the Internal Revenue Service nor the county
retirement commission are party to this suit, and any argument about the tax implications of the
award is mere speculation.
I would therefore reverse the trial court order, and remand for entry of summary disposition
in favor of plaintiff and Plesa to confirm and enforce the arbitration award.
/s/ Kathleen Jansen
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