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The full case caption appears at the end of this opinion. MURPHY, P.J. In an earlier unpublished opinion in this case, Arslanian v Oakwood UnitedHospitals, Inc, issued October 3, 1997 (Docket No. 189349), slip op, p 2,we held that a previous arbitration proceeding, held pursuant to acollective-bargaining agreement, barred plaintiff’s subsequently filed claimsof defamation, intentional infliction of emotional distress, and interferencewith contract. However, pursuant to Rushton v Meijer, Inc, 225 Mich App156; 570 NW2d 271 (1997), which held that the public policy of this stateentitles a plaintiff to direct and immediate review of civil rights claims incircuit court, we further held that the previous arbitration proceeding did notbar plaintiff’s additional claims of retaliatory discharge and genderdiscrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA3.548(101) et seq. Arslanian, supra, slip op, p 3. Defendants sought leave toappeal this ruling and our Supreme Court, in lieu of granting leave, remandedthe matter for our reconsideration in light of Rembert v Ryan FamilySteakhouse, Inc, 235 Mich App 118; 596 NW2d 208 (1999), a decision of aspecial panel of this Court, which in pertinent part abrogated Rushton. Onreconsideration, we affirm our previous holdings. Plaintiff worked for defendant Oakwood United Hospitals until an allegedassault on defendant McKinzie resulted in his discharge. Pursuant to thecollective-bargaining agreement, plaintiff filed a grievance and an arbitrationhearing was held. The arbitrator denied plaintiff’s grievance, finding thatMcKinzie’s account of the assault was truthful, and that plaintiff waslegitimately discharged based on that assault and his prior disciplinaryrecord. Defendants filed a motion for summary disposition in response toplaintiff’s subsequently initiated circuit court action, arguing that as a resultof the arbitration proceedings, plaintiff’s claims were either barred by resjudicata because they were or could have been brought in the arbitrationproceedings, or were essentially barred by collateral estoppel because thedispositive facts had been determined by the arbitrator. The circuit courtgranted defendant’s motion and as indicated above, on plaintiff’s appeal as ofright we affirmed in part and reversed in part. We are now faced with the question whether Rembert compels a conclusioncontrary to our previous decision allowing plaintiff to proceed with hisCRA-based discrimination and retaliatory discharge claims. We find that itdoes not. In Rembert, the special panel of this Court interpreted an individualemployment agreement and held that predispute agreements to arbitratestatutory claims, including CRA-based claims, are not against public policyand can be enforceable. The special panel indicated that such an agreementwould be valid if: “(1) the parties have agreed to arbitrate the claims (theremust be a valid, binding, contract covering the civil rights claims), (2) thestatute itself does not prohibit such agreements, and (3) the arbitrationagreement does not waive the substantive rights and remedies of the statuteand the arbitration procedures are fair so that the employee may effectivelyvindicate his statutory rights.” Id. at 156-157. Ultimately, the matter wasremanded to the trial court for a determination whether the plaintiff’sagreement was enforceable in light of those requirements. Id. at 166.Notwithstanding this explicit abrogation of Rushton, which also involved anindividual employment contract, a like result is not compelled in this casebecause here we are concerned with an arbitration clause contained in acollective bargaining agreement. In reaching its result, the special panel in Rembert analyzed the tensionbetween two Supreme Court cases dealing with arbitration in the context ofemployment discrimination claims, Alexander v Gardner-Denver Co, 415 US36; 94 S Ct 1011; 39 L Ed 2d 147 (1974) and Gilmer v Interstate/JohnsonLane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). In Alexander,as in the instant case, a union employee exercised the compulsoryarbitration provision contained in a collective bargaining agreement. TheSupreme Court held that the exercise of this provision did not preclude theemployee from subsequently pursuing a Title VII claim in court. Resting itsdecision in part on the then-common view that with respect to statutoryrights arbitration was inferior to traditional litigation, the Court concluded thatthe employee could vindicate contractual rights against discrimination atarbitration and could enforce independent statutory rights through litigation.Alexander, supra at 50-52. Almost two decades later, the Supreme Court’s attitude toward arbitrationwas decidedly different. In Gilmer, the Court held enforceable an agreementto arbitrate statutory claims contained in an individual employment contract.Carefully distinguishing Alexander, the Court reasoned that the factors whichin that case had militated against arbitration of civil rights claims were notapplicable to a case which arose under the Federal Arbitration Act (FAA), 9USC � 1 et seq., and in which an individual employment contract was atissue. Gilmer, supra at 34-35. The Court noted “several importantdistinctions” between the cases: First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” [Id. at 35, quoting Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 625; 105 S Ct 3346; 87 L Ed 2d 444 (1985).] In reaching the decision that public policy supports enforcing valid arbitrationclauses, the special panel of this Court noted that the “critical distinction”between its case and Alexander, was the one made salient by Gilmer, thedifference between arbitration agreements arising in the context of acollective bargaining agreement and those arising out of individualemployment contracts. Rembert, supra at 143. It is that same distinctionwhich compels a contrary conclusion in the instant case. [FOOTNOTE 1] The special panel followed its analysis of Gilmer, by discussing the progenyof that case, stating, “[s]ince the Court’s landmark decision in Gilmer, thevast majority of federal and state courts that have addressed this issue havefollowed Gilmer and held that statutory employment discrimination claimsare subject to predispute compulsory arbitration by way of employmentcontracts.” Rembert, supra at 148-149. The special panel noted, however,that in the context of arbitration clauses found in collective bargainingagreements, a question still exists regarding “whether and to what extent[Alexander] remains viable authority.” Id. at 151, n, 24. Referencing a few ofthe cases in which parties have raised this issue, the special panelconcluded, “[o]ur decision does not turn on the outcome of this controversy,and we express no opinion concerning the proper application of Gilmer togeneral arbitration clauses in collective bargaining agreements.” Id.,(emphasis added). Accordingly, Rembert does not control the outcome ofthis case. Instead, we turn to those cases so addressing the question of thecontinuing viability of Alexander. Though to some degree a split of opinion exists among jurisdictionsaddressing this question, a clear majority of courts have found thatAlexander remains an effective bar to compulsory arbitration of civil rightsclaims in the collective bargaining context. The minority view is representedby the Fourth Circuit Court of Appeals decision in Austin v Owens-BrockwayGlass Container, Inc, 78 F3d 875 (CA 4, 1996). In that case, the court heldthat a binding arbitration clause in a collective bargaining agreement barredan employee from pursuing in a judicial forum claims brought under Title VIIand the Americans with Disabilities Act. Id. at 885-886. The court thusextended Gilmer, noting the difference presented by the fact that a collectivebargaining agreement was at issue, but deeming this difference irrelevant.Id. at 885. A strong dissent was authored by Judge Hall, who stated that”[t]he majority fails to recognize, however, that the only difference makes allthe difference.” Id. at 886. Judge Hall noted that the Supreme Court itselfhad made clear that Alexander was not overruled by Gilmer, [FOOTNOTE 2] and indicatedthat several federal courts recognized that the former decision still governsin the collective bargaining context. Id. at 887. Those courts finding to the contrary of Austin, some explicitly rejecting itsreasoning, are numerous. See, e.g., Penny v United Postal Service, 128F3d 408, 414 (CA 6, 1997) (concluding that “an employee whose onlyobligation to arbitrate is contained in a collective bargaining agreementretains the right to obtain a judicial determination of his rights under astatute such as the ADA); Brisentine v Stone & Webster Engineering Corp,117 F3d 519, 526 (CA 11, 1997) (explicitly rejecting the “result andreasoning of the Fourth Circuit” in Austin, and finding Judge Hall’s dissentmore persuasive); Harrison v Eddy Potash, Inc, 112 F3d 1437, 1453 (CA 10,1997) (adopting “the majority view . . . that Alexander and its progenyremain good law and that statutory employment claims are independent of acollective bargaining agreement’s grievance and arbitration procedures”)(citations and internal quotations omitted); Pryner v Tractor Supply Co, 109F3d 354, 363 (CA 7, 1997) (applying Alexander and holding that “the unioncannot consent for the employee by signing a collective bargainingagreement that consigns the enforcement of statutory rights to theunion-controlled grievance and arbitration machinery created by theagreement”); Varner v National Super Markets, Inc, 94 F3d 1209 (CA 8,1996); Tran v Tran, 54 F3d 115 (CA 2, 1995); Krahel v Owens-BrockwayGlass Container, Inc, 971 F Supp 440 (D Or, 1997); Jackson v QuanexCorp, 889 F Supp 1007 (E D Mich, 1995). As have this vast majority ofcourts addressing the issue, we hold that Alexander still controls in thecircumstances herein presented. The concerns implicated by union-negotiated predispute agreements toarbitrate center on one key issue: the tension presented by the spectre ofcollective representation being the only method of enforcement of distinctlyindividual rights. See Gilmer, supra at 35. A thorough analysis of thepotential problems associated with collective representation in theenforcement of individual rights is found in Pryner, supra at 360-363. There,Chief Judge Posner ultimately posits that: The essential conflict is between majority and minority rights. The collective bargaining agreement is the symbol and reality of a majoritarian conception of workers’ rights. An agreement negotiated by the union elected by a majority of the workers in the bargaining unit binds all the members of the unit, whether they are part of the majority or for that matter even members of the union entitled to vote for union leaders–they need not be. The statutory rights at issue in these two cases are rights given to members of minority groups because of concern about the mistreatment (of which there is a long history in the labor movement, see, e.g., Steele v Louisville & Nashville RR, 323 US 192; 65 S Ct 226; 89 L Ed 173 (1944)) of minorities by majorities. We may assume that the union will not engage in actionable discrimination against minority workers. But we may not assume that it will be highly sensitive to their special interests, which are the interests protected by Title VII and the other discrimination statutes, and will seek to vindicate those interests with maximum vigor. The employers’ position delivers the enforcement of the rights of these minorities into the hands of the majority, and we do not think that this result is consistent with the policy of these statutes or justified by the abstract desirability of allowing unions and employers to cut their own deals. And we are given no reason to believe that the ability of unionized workers to enforce their statutory rights outside of the grievance machinery established by collective bargaining agreements is undermining labor relations. [Id. at 362-363.] We agree with Chief Judge Posner’s excellent summary of the potentiallyconflict-laden relationship that would exist were the presently minority viewof Fourth Circuit in Austin to instead become the majority rule. In Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550NW2d 243 (1996), Justice Cavanagh’s plurality opinion discussed competingpublic policies which, with respect to the adjudication of civil rights claims,on the one hand favor the enforcement of agreements to arbitrate suchclaims, but on the other support the historical right to their determination ina judicial forum. Justice Cavanagh wrote the judicial remedies provision in Const 1963, art 5, � 29, along with the tone of the debates that produced that provision, reveal that an aggrieved individual’s access to judicial remedies is inseparably interwoven with the substantive civil rights and was intended by the people of Michigan to be the lifeblood of keeping those substantive civil rights alive. When the civil liberty at stake is equal opportunity in the pursuit of employment, I believe that the Michigan Constitution prevents us from granting the defendant’s request to surgically sever the constitutional right to a judicial forum. In short, I would find that an aggrieved individual’s access to a judicial forum to remedy violations of his nonnegotiable, constitutionally guaranteed, and legislatively articulated civil rights, is also a nonnegotiable state right. Accordingly, I would find that the people of Michigan and the Legislature intended to preclude prospective waivers of judicial remedies. [Id. at 435-436.] Though the recent special panel decision includes a passage rendering theforce of this reasoning negligible in the context of individual employmentcontracts, Rembert, supra at 131, because of the potential conflicts justalluded to, Justice Cavanagh’s language still resonates in the context ofcollective bargaining agreements. In accord with the vast majority of jurisdictions, therefore, we conclude thatbecause the union asserts control in the labor arbitration process andbecause the interests of the individual in enforcing his or her statutory rightsmay be subordinated to the perceived greater interest of the bargaining unit,mandatory labor arbitration of civil rights claims is inappropriate. SeeJackson, supra at 1011 (citing Alexander, supra at 58, n, 19). Moreover, aswe indicated in our previous decision, the application of collateral estoppeland res judicata to plaintiff’s civil rights claims would effectively contravenethis conclusion. Accordingly, we hold that the trial court erred in grantingsummary disposition on plaintiff’s statutory-based discrimination andretaliatory discharge claims. Were the distinctions between an agreement pursuant to a collectivebargaining agreement and one included in an individual employment contractnot reason enough to support our holding in this case, we note that wewould otherwise rule that plaintiff can still pursue his statutory claimsbecause the instant agreement clearly fails to satisfy one particular factorneeded to meet the requirement of a fair arbitral process. Among otherthings, the arbitration proceedings must include clear notice to theemployee that he is waiving the right to adjudicate discrimination claims in ajudicial forum. Rembert, supra at 161. It was a deficiency in this regard, thelack of a “clear and unmistakable waiver,” which led the Supreme Court inWright v Universal Maritime Service Corp, 525 US 70; 119 S Ct 391; 142 LEd 2d 361 (1998) to recently decline to reach the question whether a waiverprovision contained in a collective bargaining agreement should beenforceable. Id., 119 S Ct 395, 397. There, the Court found that theunion-negotiated arbitration clause at issue was “very general, providing forarbitration of ‘[m]atters under dispute,’ . . . which could be understood tomean matters in dispute under the contract.” Id., 119 S Ct 396. The Courtnoted that the “remainder of the contract contains no explicit incorporationof statutory antidiscrimination requirements.” Id. Similarly, in this case thearbitration clause generally provides that an employee may grieve “analleged violation of a specific article or working condition or section of thisAgreement.” Although the agreement does contain an antidiscriminationprovision, it does not explicitly reference or incorporate statutorydiscrimination claims. [FOOTNOTE 3] Further, it is provided that an arbitrator appointedunder the agreement is “empowered to rule only upon the interpretation andconstruction of the specific provisions of this contract and shall not beempowered to . . . change or modify any provision . . . or introduce any newmaterial.” We additionally find, therefore, that together these provisions donot constitute a clear and unmistakable waiver of the right to bring astatutory discrimination claim in court. Plaintiff was not on notice that bypursuing arbitration with the union he would lose this right. With respect to plaintiff’s claims of defamation, intentional infliction ofemotional distress and interference with contract, we adopt the reasoning ofour previous decision and hold that the trial court appropriately grantedsummary disposition because these claims are barred by virtue of thearbitration proceedings. For the reasons discussed above we additionallyhold, also in agreement with our previous decision, that the trial court erredin granting summary disposition on plaintiff’s statutory-based claims ofretaliatory discharge and gender discrimination. Affirmed in part and reversed in part. Remanded for proceedings consistentwith this opinion. /s/ William B. Murphy /s/ Michael J. Kelly /s/ Roman S. Gribbs :::FOOTNOTES::: FN1 This case ultimately turns on the presence of a collective bargainingagreement and the inherent concerns presented by taking enforcement ofindividual statutory rights out of the individual’s hands. The presence of acollective bargaining agreement, however, is additionally relevant to theweight afforded current policy favoring arbitration. The cases holding thatagreements to arbitrate should be enforced in the context of individualemployment contracts in part relied on the Federal Arbitration Act and theMichigan Arbitration Act. Both acts reflect policy favoring arbitration. SeeGilmer, supra at 35; Rembert, supra at 159. To the extent the policyreflected in the MAA is applicable in this case, we note that the actexpressly exempts collective labor contracts. MCL 600.5001; MSA27A.5001. FN2 The Supreme Court’s recognition of the continuing vitality of Alexander inlight of Gilmer was discussed in Livadas v Bradshaw, 512 US 107, 127, n21; 114 S Ct 2068; 129 L Ed 2d 93 (1994), where the Court noted that thereis no inconsistency between the two cases: In holding that an agreement to arbitrate an Age Discrimination onEmployment Act claim is enforceable under the Federal Arbitration Act,Gilmer emphasized its basic consistency with our unanimous decision inAlexander. FN3 The agreement provides in Section 4.5: DISCRIMINATION – OUHI will not discriminate on the basis of race, color,sex, national origin, religion, marital status, height, weight, union activity,handicap, political beliefs or age.
Arslanian v. Oakwood United Hosps., Inc. STATE OF MICHIGAN COURT OF APPEALS No. 189349 MICHAEL ARSLANIAN, Plaintiff-Appellant v OAKWOOD UNITED HOSPITALS, INC., d/b/a HERITAGE HOSPITAL, CYNTHIA ENGLISH, KAROLINE MCKINZIE, and DONNA LEVALLEY, Defendants-Appellees LC No(s). Wayne Circuit Court 94-427964-NO April 21, 2000 Before: Murphy, P.J., and Michael J. Kelly and Gribbs, JJ.
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