American Federation of State, County & Municipal Employees v. Highland Park Board of Education

Weaver, J.

(dissenting). Because I find that equity does not require tolling in this case where the plaintiffs had over five and one-half years to file their *99breach of contract claims, I dissent. I would hold that the Court of Appeals erred in reversing the trial court’s finding that plaintiff’s breach of contract action was time-barred.

i

I would hold that tolling is inappropriate either during the first four steps of the grievance process, or during the last step, nonbinding and permissive arbitration.1

A

The United States Supreme Court acknowledged that the federal rule regarding exhaustion of administrative remedies does not preclude a court suit where the “collective bargaining agreement expressly agreed that arbitration was not the exclusive remedy.” Republic Steel Corp v Maddox, 379 US 650, 657-658; 85 S Ct 614; 13 L Ed 2d 580 (1965). That is the case at hand because I agree with the lead opinion that arbitration, as applied to the facts in this case, is advisory only and nonbinding.2

*100Federal courts have held:

A resolution procedure that does not provide such conclusive and binding resolution is not the type intended to preclude judicial resolution by invoking the exhaustion requirement. Hence, the exhaustion requirement does not impede plaintiff’s ability to demand direct judicial attention to the settlement of their § 301 claim. [Metropolitan Dist Council of Philadelphia v Pomerantz & Co, 149 LRRM 3056, 3057 (1995).][3]

Furthermore, the body of labor law establishing and adhering to the exhaustion requirement derives from the Congressional declaration that “\f\inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 USC 173(d) (emphasis added). There is no “final adjustment” under this agreement because, by its own terms, arbitration is nonbinding.

Moreover, other courts have recognized the relevance of the mandatory or permissive character of a grievance procedure in determining whether or not to toll. Indeed, one court found that

*101common sense suggests that the limitations period should not be tolled during a plaintiffs exercise of optional union remedies. Allowing such a result would involve granting plaintiffs power to control § 301 litigation to a degree not likely contemplated when the statutes were enacted. That is, a plaintiff could opt for an internal procedure insufficient to conclude in complete relief, and dependant [sic] upon the outcome, either relitigate the entire dispute or simply seek a judicial determination of the issue omitted from the union proceeding. Obviously, such a system is contrary to a policy favoring speedy resolution of labor disputes. [Smith v Expert Automation, Inc, 726 F Supp 1080, 1081 (ED Mich, 1988).]

The lead opinion declines to address whether arbitration is mandatory or permissive.4 I find, however, that that issue is relevant when considering whether to toll, in light of the rationale offered in Smith, supra, and that the parties clearly intended for arbitration to be permissive. Indeed, subsection g is distinct and separate from the preceding mandatory four-step grievance process in subsection d and, unlike subsection d, contains the following permissive language: “a grievance may be appealed to advisory arbitration by the Union.” (Emphasis added.) While “may” usually denotes a permissive provision, federal labor law has established that the use of the term “may” in an arbitration agreement is insufficient indicium by itself that the parties negotiated for permissive, rather than mandatory, arbitration. Republic Steel Corp v Mad*102dox, supra at 658-659. However, as seen below, “may” is not “indicium by itself” in this case.5

The agreement terms, such as subsection j, serve as further indicia that the parties intended arbitration to be discretionary.6 Subsection j clarifies that the union or an individual is not required to arbitrate all claims. To interpret the term “may” in the arbitration provision to mean only that the union or individual does not have to arbitrate every grievance would be to render that provision redundant and unnecessary in light of subsection j. Such an interpretation would be contrary to the judiciary’s directive to interpret contractual provisions in a manner that harmonizes and gives effect to all provisions. In light of this directive, I interpret subsection g as providing for discretionary, permissive arbitration.

For these reasons, I would find tolling during this nonbinding and permissive arbitration process at issue to be inappropriate.

n

I would also hold that tolling during the four-step grievance process is similarly unwarranted, regardless of whether that process is mandatory or permissive. While exhaustion is required for mandatory procedures, tolling remains an equitable remedy and a fact-specific inquiry within the discretion of the trial court. Robinson v Central Brass Mfg Co, 987 F2d 1235, 1242 (CA 6, 1993). Therefore, even if the four-*103step grievance process at issue were mandatory, this Court should still balance the equities to determine whether tolling is required in this case.

This Court has repeatedly identified the policies favoring statutes of limitations to be: affording parties a reasonable opportunity in which to bring suit, giving the opposition fair opportunity to defend, relieving the judicial system from stale claims, and protecting defendants from the fear of protracted litigation. Chase v Sabin, 445 Mich 190, 199; 516 NW2d 60 (1994), quoting Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974).

I find that the policy considerations favoring tolling do not apply in the instant case. Therefore, I would hold that the trial court did not abuse its discretion in refusing to toll where the four-step grievance process was completed within roughly three months of the occurrence of the alleged contractual breaches. Indeed, the parties should have been aware, given the plain terms of their agreement, that arbitration was nonbinding and that judicial resort was always an option for whichever party was not fully satisfied by the arbitrator’s decision. They had well over five years, more than a reasonable amount of time, in which to file a court action to preserve whatever claim they might have wanted to pursue in the event they were dissatisfied with the arbitrator’s award. Their delay should not be subsequently excused by this Court in light of the generous six-year period of limitation.7

*104Moreover, with regard to the competing labor policies, the parties in this case were not unreasonably pressured by the limitation period, and, for this reason, there was no real danger of sacrificing employee rights by not tolling. Tolling is not necessary to preserve the parties’ rights or to encourage resort to private resolution mechanisms, particularly where the arbitration process is clearly nonbinding and, by its own terms, affords no final resolution. Moreover, the majority’s holding in this case frustrates the fundamental policy of promoting expeditious resolution of labor disputes.

Accordingly, I would find that a balance of the equities and competing labor policies reveals tolling is not warranted in this case where the plaintiff had ample time, indeed over five and one-half years after exhausting the four-step grievance procedure, to file suit.

m

I find general breach of contract rules apply, and that therefore, the statute of limitations should run from the date when the alleged contractual breach occurred. Harris v City of Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992). In this case, the latest *105possible dates when the alleged breaches occurred would be July 6, 1984, and February 19, 1985, when the union first initiated grievance proceedings on behalf of the plaintiffs. The lead opinion correctly recognizes that the applicable period of limitation for breach of contract actions is six years. MCL 600.5807(8); MSA 27A.5807(8). Therefore, the statutory period expired in July 1990 and February 1991, respectively. I would, therefore, hold that these actions, filed on April 15, 1991, were barred because of the expiration of the statutory limitation period.

I note that where, as here, there is a risk that the statute of limitations would be tolled during the grievance or arbitration process, a party could file a court action, to preserve the claim, and then move to stay such action pending resolution of the grievance procedure or arbitration process.8 Any claim that such a proposal would usher in a flood of potentially unnecessary litigation would be disingenuous and unfounded. First, this Court and the lead opinion in this case recognize that only four percent of all grievance procedures in existence in 1970 similarly culminated in nonbinding arbitration.9 Thus, this case is truly an unusual situation. Second, as the parties to this action admit, it is unusual that it took these parties over six years to move through the grievance process and arbitrate their dispute.

For the foregoing reasons, I dissent. I would reverse the judgment of the Court of Appeals and reinstate the trial court’s ruling that plaintiff’s breach *106of contract action was barred under the applicable six-year period of limitation.

Kelly and Taylor, JJ., took no part in the decision of this case.

The arbitration clause, contained in subsection g, provides in relevant part:

Arbitration — within ten (10) school days after delivery of the Board’s decision, a grievance may be appealed to advisory arbitration by the Union. The arbitrator shall be selected and the arbitration shall be conducted under the rules of the American Arbitration Association. The fees and expenses of the arbitrator and of the American Arbitration Association shall be shared equally by the Board and the Union. The arbitrator’s decision shaU, be advisory only and shall not be binding upon any party except in matters involving wages, discharge or suspension. [Emphasis added.]

The last sentence of the arbitration provision indicates in no uncertain terms that arbitration is final and binding only in a dispute over “wages, discharge or suspension,” which this case is not.

*100Further evidence that the parties did not intend for arbitration to be the exclusive remedy is the preamble to the entire process, which clearly states that the process is only “a means” of resolving labor disputes.

I find the lead opinion’s attempt to distinguish the Pomerantz case unpersuasive. First, I find the lead opinion’s characterization that the “contract specifically provides that the grievance procedure ‘shall’ be exhausted,” ante at 88, to be misleading. Obviously, the term exhaustion appears nowhere in the agreement. Whether or not the process at issue must be exhausted before filing a legal action is a legal conclusion and the very issue before this Court.

Further, because I disagree with the lead opinion’s interpretation of this agreement and application of the law, I find Pomerantz to be relevant and highly instructive.

It seems to me this issue should not be avoided. Indeed, it would be illogical, and contrary to the contractual principle of giving import to each contractual provision, to toll the statute of limitations only during the four-step process if arbitration was the final, mandatory step in the grievance procedure.

Id.

Subsection j provides:

The Union and/or the individual having filed the grievance has the right to withdraw the same without prejudice at any step.

See Int’l Union v Hoosier Cardinal Corp, 383 US 696, 708; 86 S Ct 1107; 16 L Ed 2d 192 (1966) (no tolling of the limitation statute where a union had a full three years to file after the dismissal of the state court action).

*104I would note that, in considering the most applicable limitation period for hybrid § 301 claims against the union and employer, the United States Court of Appeals for the Seventh Circuit considered the problem of delay and found that

the limitation period for seeking to vacate an arbitration award was the most analogous one. The alternatives, such as tort or contract limitations, were simply too long. Many of those alternatives often allowed as long as six years to pass before filing suit. [Frandsen v Brotherhood of Railway, Airline & Steamship Clerks, 782 F2d 674, 680 (CA 7, 1986).]

Under MCR 2.503, a court could adjourn a case pending resolution of the grievance process or arbitration.

Breish v Ring Screw Works, 397 Mich 586, 594; 248 NW2d 526 (1976).