Rushton v. Meijer, Inc.
Rushton v. Meijer, Inc.
Opinion of the Court
This case is on remand to us from the Michigan Supreme Court, 453 Mich 943 (1996), for reconsideration in light of Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996). We reverse in part and affirm in part.
As we stated in our earlier opinion:
Plaintiff worked as a part-time floor detective for defendant Meijer, Incorporated. When she was hired by Meijer, plaintiff signed an employment form agreeing to abide [by]*160 defendant’s policies and procedures. Plaintiff acknowledged receipt of an associate handbook which included defendant’s termination appeal procedure. This document unambiguously provided that terminated employees were required to exhaust the alternate dispute resolution (adr) procedure. A separate document which plaintiff received indicated that exhaustion of the adr procedure is a condition precedent to litigation, regardless of whether the arbitrator’s final decision is upheld by a trial court.
When defendant terminated plaintiff’s employment, she [plaintiff] invoked the adr procedure. She indicated that she believed she had been discharged without just cause, that she was the victim of gender discrimination, and that she had been retaliated against for complaining about not being given a full-time job. Following an investigation, plaintiff’s discharge was upheld at step one of the adr procedure. Plaintiff chose not to pursue the next step in the procedure, binding arbitration, and instead filed a lawsuit alleging wrongful discharge, gender discrimination, and retaliation. Defendant moved for summary or partial disposition, or for an order enforcing the adr award or procedure. At the hearing on defendant’s motion, plaintiff withdrew her retaliation claim. The court then denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. [Rushton v Meijer, Inc, unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272).]
In our original opinion, we reversed the trial court’s denial of a defense motion for summary disposition of plaintiff’s wrongful discharge and gender discrimination claims because plaintiff had failed to exhaust the remedies available to her pursuant to the ADR procedure that defendant had established to resolve such claims. In reversing the trial court’s denial of defendant’s motion for summary disposition of plaintiff’s gender discrimination claim, we relied on Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994), as controlling precedent
i
The Michigan Supreme Court reversed this Court’s decision in Heurtebise, because the employee handbook contained language demonstrating that the employer did not intend to be bound by its provisions. 452 Mich 414. As the Supreme Court noted, the handbook in Heurtebise contained clauses stating: (1) the policies in the handbook do not create any employment or personal contract, express or implied; (2) the employer had the right to terminate employees’ employment at any time, without notice, for any reason; and (3) the employer reserved the right to make modifications to any or all of the policies in the handbook. Thus, the instrument in Heurtebise expressly disclaiming contract status, yielding the employee no benefit above the minimal required status even to be an employee — namely, at-will status— and having provisions that could be changed unilaterally by the employer was, as might be expected, determined not to be a contract by the Supreme Court.
It is in light of this holding that we are directed to reexamine the Meijer employee handbook. The dissimilarities are marked. Unlike the Heurtebise handbook, the Meijer handbook does not contain language stating that Meijer does not intend to be bound by its provisions. Further, it does not indicate that Meijer considers the policies not to create a contract and, finally, rather than an at-will termination policy, this instrument has consideration running to the employee in the form of an express promise of termination
This argument has some allure, but on serious scrutiny, the problem plaintiff points to is illusory in the factual circumstances found here. It must be recalled that this instrument is an agreement to control an ongoing course of conduct between the employer and its employees. By its clear terms, they are both bound by it unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively. See In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989). Accordingly, because the alleged improper acts by the employer at issue here came before any change was made in the agreement by the employer (in fact, as far as we know, even now no changes have been instituted by the employer), both parties are bound. In particular, the parties are bound to utilize the exclusive ADR procedure for handling their contract dispute. While the reservation language in the handbook will allow Meijer, for example, to change its policy of being a just-cause employer to become an at-will employer, the change would be effective only
Therefore, because the Meijer and Heurtebise handbooks are distinguishable, this plaintiff was bound by the handbook with regard to any contractual claim. The fact that Meijer could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. Accord
H
With regard to plaintiff’s gender discrimination claim, we conclude, in light of Heurtebise, that summary disposition was properly denied by the trial court. To this end, we agree with and adopt as our own the reasoning of Justice Cavanagh in parts m through VI of his opinion in Heurtebise, which addressed, albeit in dicta, the issue “whether private employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum.”
As noted by Justice Cavanagh in Heurtebise, “[u]nlike federal law, Michigan has an unwavering history of faithfully defending an aggrieved individual’s
Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract:
A contract which is contrary to public policy is illegal and void. Federoff v Ewing, 386 Mich 474, 481; 192 NW2d 242 (1971). Public policy has been described as “the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like.” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936). It is expressed in the constitution, statutes, judicial decisions, or customs and conventions of the people, and it concerns the primary principles of equity and justice. Id.*166 [Badon v General Motors Corp, 188 Mich App 430, 439; 470 NW2d 436 (1991).]
Contrary to defendant Meijer’s argument, we do not find the parties’ employment contract to be governed by the federal arbitration act (faa), 9 USC 1 et seq.
The facts of the present case are considerably less compelling than those in Bernhardt. Plaintiff Rushton was employed by Meijer as a floor detective. Her contractual duties did not facilitate, affect, or arise out of interstate or foreign commerce. Thus, even the broadest construction of the statutory phrase “involving commerce” cannot encompass plaintiffs employment contract with Meijer.
Only two of the dissent’s arguments warrant a response. First, the dissent chides us for neglecting this state’s statutory arbitration act,
Second, the dissent asserts that our decision will force “sophisticated employers,” like defendant Meijer, either to abandon its policy of just-cause employment or to simply leave the state for a business-friendly environment. The dissent “cannot help but sense” that we, along with three members of the Supreme Court, have attempted to “str[ike] a blow for the working people of this state.” As members of the judiciary, however, our mandate is to enforce the laws as written by the Legislature. We acknowledge our surprise at our dissenting colleague’s willingness, in this case, to abandon his long-held support for the unambiguous written word of the Legislature. Indeed, it was our dissenting colleague who stated that, “[c]learly, it is for the Legislature, and not the courts,
After examining federal and Michigan civil rights jurisprudence, Justice Cavanagh stated, and we agree:
In conclusion, with respect to equal opportunity in the pursuit of civil liberties, such as employment, I believe that the right to be free from unlawful discrimination is of highest priority and too important to jeopardize. I further believe that the constitutionally guaranteed direct access to a judicial forum is so interwoven with the enforcement of civil rights in Michigan that we cannot separate them without potentially harming substantive civil rights. Accordingly, I would hold that the Michigan Constitution and our longstanding public policy preclude the enforcement of prospective arbitration agreements in employment contracts.
Finally, I would assert that I am not backing away from the public policy favoring alternative means of dispute resolution. For aggrieved individuals seeking to pursue remedies for claims that have already accrued, arbitration may present a quicker and cheaper means of receiving relief, and I fully support the parties’ voluntary intent in those cases. I would limit this opinion to the arbitration agree*170 ments in employment contracts entered into before any claim for unlawful discrimination has accrued. [Heurtebise, 452 Mich 437-438.]
Accordingly, we hold that Meijer cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum. The provision of the parties’ private employment contract requiring plaintiff, a nonunion employee, to exhaust the termination appeal procedure, including binding arbitration, before filing a lawsuit in the circuit court, is void as it relates to her gender discrimination claim under Michigan law.
Reversed in part and affirmed in part. Remanded for further proceedings regarding plaintiff’s gender discrimination claim. We retain no further jurisdiction.
Justices Levin and Mallett concurred with Justice Cavanagh. Justice Boyle, concurring separately, expressed no opinion “whether or when an agreement to arbitrate might be found to be enforceable.” 452 Mich 438. Chief Justice Brickley and Justices Riley and Weaver concurred with Justice Boyle.
The faa provides, in pertinent part:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [9 USC 2.]
“[C]ommerce,” as herein defined, means commerce among the several States or with foreign nations, . . . but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. [9 USC 1.]
Accord Ferro v Ass’n of Catholic Schools, 623 F Supp 1161, 1167 (SD NY, 1985) (teacher’s employment contract did not evidence a transaction involving commerce); Becker v Amoco Pipeline Co, 1989 US Dist LEXIS 11309 (ND Ill, 1989) (agreement involving the laying of pipeline over a local tract of land did not contemplate interstate activity). Cf. Dickstein v DuPont, 320 F Supp 150 (D Mass, 1970), aff’d 443 F2d 783 (CA 1, 1971) (employment contract of an account executive contemplated use of interstate travel or communication facilities and therefore affected commerce); Bleumer v Parkway Ins Co, 277 NJ Super 378; 649 A2d 913 (1994) (day-today management and control activities of the plaintiff, an automobile insurance sales manager, necessarily involved interstate commerce); Bridas Sociedad Anonima Petrolera Indus y Comercial v Int’l Standard Electric Corp, 128 Misc 2d 669; 490 NYS2d 711 (1985) (a shareholders’ agreement was “inextricably intertwined” with a sale of stock in a foreign corporation by an American corporation to another foreign corporation and therefore arose out of foreign commerce).
See MCL 600.5001 et seq.; MSA 27A.5001 et seq.
Given our resolution of this issue, we decline to address the issue whether the provision of the parties’ contract requiring the discharged employee to file an internal complaint within fourteen days constitutes an improper shortening of the applicable statute of limitations. See, e.g., Herweyer v Clark Hwy Services, Inc, 455 Mich 14; 564 NW2d 857 (1997).
Concurring in Part
(concurring in part and dissenting in part). I wholeheartedly concur with part I of the majority opinion; however, I dissent from part n. Thus, I would reverse the lower court’s order denying summary disposition for defendant in its entirety.
The essence of the majority position is that the parties’ contract is valid except for the agreement to
In our jurisprudence, contractual freedom is the axiomatic norm, and to deviate from that norm requires justification.
In our original opinion in this case, we held that defendant was entitled to summary disposition of plaintiff’s gender discrimination claim because she failed to exhaust the remedies available to her pursuant to defendant’s alternative dispute resolution (ADR)
The conclusion of the minority opinion in Heurtebise is premised primarily upon Const 1963, art 5, § 29, which provides: “Nothing contained in this section [establishing the civil rights commission] shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state,” and its statutory counterpart, MCL 37.2803; MSA 3.548(803), which provides: “This [civil rights] act shall not be construed to diminish
Indeed, the Supreme Court has definitively construed these provisions in a controlling opinion in a way that is not harmonious with the minority dicta opinion in Heurtebise or the majority opinion herein. In Nummer v Dep’t of Treasury, 448 Mich 534, 550; 533 NW2d 250 (1995), the Supreme Court said that the above-cited constitutional provision and statute mean that “the Civil Rights Commission does not have exclusive jurisdiction over discrimination claims, but instead has concurrent jurisdiction with the circuit courts.”
The cited statutory language is similarly straightforward. Section 803 states that the Michigan Civil Rights Act itself is not to be construed to diminish the right of a person to direct or immediate legal or equitable remedies in Michigan courts. That is, the Legislature wished to make it clear that the remedies in the Civil Rights Act are cumulative to preexisting common-law and statutory rights. This was necessary because, before passage of the Civil Rights Act, certain civil rights were already guaranteed by the common-law and by statute, and the Legislature wanted to make clear that its broad entry into the field had not abrogated the previously existing common-law and statutory rights. See Marsh v Dep’t of Civil Service, 142 Mich App 557, 563, n 2, 567, n 6; 370 NW2d 613 (1985). See also Heurtebise, supra at 423. Thus, as with the constitutional provision, § 803 simply does not address the issue of the propriety of prospective agreements to arbitrate civil rights claims. Accord Prudential Ins Co v Shammas, 865 F Supp 429, 433 (WD Mich, 1993) (the court rejected the argument that MCL 37.2803; MSA 3.548[803] precluded arbitration under the federal arbitration act of a Michigan civil rights claim).
A statute that does address the issue is Michigan’s statutory arbitration act.
Moreover, reading § 803 to produce the result that the majority reaches here requires one to ignore how explicitly our Legislature speaks when it wants to bar prospective contractual waivers of important rights. For example, in the Employment Security Act, the Legislature provided that no agreement by an individual to waive his right to benefits or any other rights under the act is valid. MCL 421.31; MSA 17.533. Similarly, when enacting the Worker’s Disability Compensation Act, the Legislature provided that no agreement by an employee to waive his rights to compensation under the worker’s compensation act before an injury shall be valid. MCL 418.815; MSA 17.237(815). In contrast, there is no waiver-bar language in either the constitution or § 803 vis-á-vis predispute agreements to arbitrate civil rights claims. This lack of language barring a waiver is inappropriately given no weight by the majority.
In addition, the majority misunderstands, and thus mischaracterizes, the import of the proper construction of the constitution and § 803. Defendant is not asserting that, because of the existence of the Civil Rights Commission section of the constitution or of the Civil Rights Act, plaintiff is precluded from going to the circuit court. Rather, defendant argues that these provisions do not mean one must go to the circuit court, and in no way preclude contracting parties from agreeing to a different forum than a court, to adjudicate their civil rights disputes. I agree with defendant’s argument because this construction leaves the constitution and § 803 with the meaning
Finally, the whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived.
The majority also adopts Justice Cavanagh’s statement that § 803 expressly prohibits an exhaustion of administrative remedies requirement. I agree with this proposition of law, but note that it has no relevance to the question whether parties may enter into predispute agreements to arbitrate civil rights claims.
At this point, then, at least to my satisfaction, the flaws in the majority’s position have been demonstrated. This draws me to the conclusion that the real objection the majority has can be found at the end of the minority opinion in Heurtebise. Id. at 438. There, Justice Cavanagh states that he believes that the right to be free of unlawful discrimination is just “too important” to be left to any dispute resolution process, prospectively agreed upon, other than that available in a court. Id. at 438 (emphasis supplied). While a jurist can, of course, hold this view as a personal matter, I do not know how this gets converted into a rule of law given that any legal basis for this view has been demonstrated to be lacking. In a situation like the case at bar, it is for the Legislature (which as we have seen has spoken concerning this and allowed that which Justice Cavanagh and the majority opinion herein disallows), or for the people directly, through referendum or constitutional amendment, to establish as the public policy. Because the Legislature has acted to establish this public policy in this area, it is inappropriate for the majority to disregard that action.
Further, I respectfully point out that, in my view, Justice Cavanagh’s position also is ill-advised because it can only be reached if one, notwithstanding protests to the contrary, id. at 438, holds the notion that arbitration is a second-rate type of fact-finding and remedy-producing vehicle that is to be discouraged in favor of traditional litigation. That, however, is inconsistent with how the courts view arbitration. Both the Michigan and the federal courts have enunciated
The United States Supreme Court in Gilmer v Interstate/Johnson Lane Corp, 500 US 20, 34, n 5; 111 S Ct 1647; 114 L Ed 2d 26 (1991), stated:
The Court in Alexander v Gardner-Denver Co [415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974)] also expressed the view that arbitration was inferior to the judicial process for resolving statutory claims. 415 US, at 57-58. That “mistrust of the arbitral process,” however, has been undermined by our recent arbitration decisions. [Shearson American Express, Inc v McMahon, 482 US 220, 231-232; 107 S Ct 2332; 96 L Ed 2d 185 (1987)]. “[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution.” Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 626-627 [87 L Ed 2d 444; 105 S Ct 3346] (1985).
Our Michigan courts have said no less. In Huntington Woods v Ajax Paving Industries, Inc, 177 Mich App 351, 356; 441 NW2d 99 (1989), rev’d in part on other grounds on rehearing 179 Mich App 600 (1989), Judge (now Justice) Marilyn Kelly said: “Our courts have long been supportive of arbitration agreements and have discouraged efforts to circumvent their objectives.” Also, in Whispering Pines, supra at 550, the Court stated: “[T]he law favors contractual terms providing for alternate dispute resolution mechanisms.”
One cannot help sensing that the members of the Supreme Court who joined in the Heurtebise minority opinion, as well as the majority here, feel that they have struck a blow for the working people of this state. After all, no arbitration of civil rights claims, and only full dress litigation with all of its protections, sounds at first blush to be protective of civil rights principles. Yet, the cost may well be that just-cause employers, such as Meijer, having had much of the value of their bargain (just-cause employment given in return for a promise to eliminate lengthy, costly civil rights litigation in court) stripped from them by this decision, will simply terminate the whole just-cause regime, as they have reserved the right to do, and return to at-will employment. Moreover, might it not be that, in practice, even just-cause disputes (that would still be subject to arbitration under part I of the majority opinion) will opportunistically be coupled with or pleaded as a civil rights claim,
In short, can it be said with certainty that the majority’s opinion has really advanced the cause of this state’s employees? It can be doubted. The reason is that every worker cares about freedom from arbitrary termination while fewer, fortunately, have any need to worry about, or avail themselves of, civil rights remedies. While this calculus may not be every person’s, it is for that reason it would be wise, especially given the legislative allowance of predispute agreements to arbitrate civil rights claims and no constitutional bar against it, not to impose our preferences on the parties and to allow them instead, as free men and women, to enter or not to enter into employment with these conditions. Were we to have ruled that just-cause employers may prospectively agree with their employees to arbitrate civil rights claims, one could reasonably assume that more at-will employers would seriously consider, and have incentive to become, just-cause employers. It is fortunate that ours may not be the final word on this question and that our Supreme Court, should it grant leave in this case (which I urge), will see this issue, as the Heurtebise majority’s refusal to join the minority opinion may suggest, more clearly than the majority in this Court does.
Because I would find the prospective agreement to arbitrate civil rights claims enforceable under Michigan law, I find it unnecessary to address defendant’s claim that the federal arbitration act preempts a ruling to the contrary. See, e.g., Great Western Mortgage Corp v Peacock, 110 F3d 222 (CA 3, 1997) (in enacting the federal arbitration act, Congress withdrew the power of the states to require a judicial forum for the resolution of claims that the contracting parties agreed to resolve by arbitration), Patterson v Tenet Healthcare, Inc, 113 F3d 832 (CA 8, 1997) (federal arbitration act required the plaintiff to arbitrate a state [Missouri] civil rights claim), O’Neil v Hilton Head Hosp, 115 F3d 272 (CA 4, 1997), and Burns v Olde Discount Corp, 212 Mich App 576, 580; 538
For these reasons I would reverse and remand for entry of a judgment in defendant’s favor.
See, e.g., Dep’t of Navy v Federal Labor Relations Authority, 295 US App DC 239, 248; 962 F 2d 48 (1992) (cited with approval in Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 319; 550 NW2d 228 (1996):
Because of the fundamental policy of freedom of contract, the parties are generally free to agree to whatever specific rules they like, and in most circumstances it is beyond the competence of the Authority, the National Labor Relations Board or the courts to interfere with the parties’ choice.
Plaintiff failed to exhaust a contractual remedy available to her under the termination appeal procedure when she failed to demand arbitration (step two) after the termination of her employment was upheld under step one of the termination appeal procedure.
I note that the majority does not respond to this argument. Indeed, the majority states that only two of my arguments warrant a response. I am unsure what that means but incline to the view that it means that they have no credible response to the positions they have declined to answer.
This is in contrast to the federal system wherein a party must obtain a right to sue letter from the Equal Employment Opportunity Commission (eeoc) before asserting a federal civil rights claim in federal court. See Nummer v Dep’t of Treasury, supra at 548, n 13 (exhaustion rules apply in the federal system); Heurtebise, supra at 419 (title vn requires claimants to exhaust administrative remedies with the eeoc before pursuing judicial relief).
The majority claims that I believe the state arbitration act “overrides” § 803. I do not believe it, nor have I said it. As set forth in my dissent, § 803 and the state arbitration act are not incompatible in any way. Thus I do not contend that either statute overrides the other. The majority’s con
MCL 600.5001(2); MSA 27A.5001(2) states:
A provision in a written contract to settle arbitration under this chapter, a controversy thereafter arising between the parties to the contract, with relation thereto, and in which it is agreed that a judgment of any circuit court may be rendered upon the award made pursuant to such agreement, shall be valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the rescission or revocation of any contract.
Mejjer’s adr procedure contains the necessary language that the decision of the arbitrator is intended to be enforceable in any court of competent jurisdiction.
The majority asserts that my construction of § 803 is inconsistent with my published admonitions encouraging all judges to exercise judicial restraint in deferring to the unambiguous word of the Legislature. It is pleasant, albeit a bit surprising, to see my two colleagues concerned about insufficient deference to the Legislature. But alas, as with most fresh converts, they are having trouble with the application of the doctrine. The problem here is that it is their position, not mine, that requires one to rewrite the statute. To reach the conclusion the majority reaches, one has to rewrite § 803 to state: “Neither this act, nor a private contract, nor the state arbitration act shall be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” (Added language italicized.) This is not what I counseled in my dissent in McDougall v Eliuk, 218 Mich App 501, 516 ff; 554 NW2d 56 (1996), lv pending. The proper thing to do in the case at bar is not to rewrite the statute as the majority has effectively done. Perhaps in future cases my brothers will better grasp the application of the principle, but for now I must take solace in the fact we at least agree with the principle of deferring to the Legislature absent constitutional concerns.
The adr procedure does not waive any of a plaintiff’s civil rights — it only affects the forum that will determine if those rights have been violated. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 184; 405 NW2d 88 (1987); Campbell v St John Hosp, 434 Mich 608, 615; 455 NW2d 695 (1990).
Indeed, constitutional rights are also waived when a person fails to assert them. Also see People v Rodriguez, 192 Mich App 1, 5; 480 NW2d 287 (1991) (constitutional right to appeal a criminal conviction may be waived as a result of a guilty plea).
Cases such as Michigan Professional Employees Society v Dep’t of Natural Resources, 152 Mich App 595, 600; 394 NW2d 786 (1986) (MPES), are readily distinguishable. In MPES, a labor union filed a civil rights complaint in the circuit court on behalf of three of its members. The trial court granted accelerated judgment because the collective bargaining agreement required all contract disputes to be submitted to arbitration. This Court reversed, stating that a classified civil servant (union member) may directly, and in the first instance, file a discrimination lawsuit in the circuit court without the necessity of exhausting rights under a collective bargaining agreement. Little rationale for this holding was given, but we are fortunate to have a parallel case to MPES, Pryner v Tractor Supply Co, 109 F3d 354 (CA 7, 1997), authored by Judge Richard Posner. In Pryner, the court fully considered the virtually identical issue whether a collective bargaining agreement can compel the arbitration of a federal antidiscrimination claim. The Pryner court concluded it could not, and based its analysis on three main points: (1) the plaintiffs’ rights under the collective bargaining agreements were not as extensive as their statutory rights; (2) the arbitration procedure could only be invoked by the union and not the worker; and (3) collective bargaining agreements bind all members of a bargaining unit even if an individual employee opposed the agreement. Obviously, had these factors not been present, the agreement would have been enforceable. To understand this is important because in
As the saying goes, when all you have to work with is a hammer, everything starts to look like a nail.
Moreover, even if I were persuaded, wMch I am not, that it would violate public policy to require just-cause employees to arbitrate civil rights claims, I would still find that defendant was entitled to summary disposition because lawful conditions precedent to the initiating of a circuit court action were not met by plaintiff. Section n of the Meijer termination appeal procedure states that if a court of competent jurisdiction determines that the termination appeal procedure is not the sole and exclusive remedy and forum for some or all of an employee’s claims, exhaustion of the termination appeal procedure is a condition precedent to institution of a legal proceeding. Therefore, even assuming for the sake of the argument that plaintiff could not forever be deprived of litigating her gender discrimination claim in the circuit court through a contractual
Reference
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