Stephen J. Markman, Chief Justice, Brian K. Zahra, Bridget M.
McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T.
Wilder, Elizabeth T. Clement, Justices
order of the Court, the application for leave to appeal the
September 5, 2017 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
McCormack, J. (dissenting.)
have granted leave to appeal to consider whether the
plaintiff's union breached the duty of fair
representation when it concluded, apparently without
considering the proper legal standard, that the
plaintiff's claim lacked merit.
William Zastrow worked for the defendant city of Wyoming as
the assistant director of the Public Works Department for 13
years. Until he was fired in 2015, Zastrow had never been
disciplined, had a good work record, and received a 100%
rating on his last performance review. Zastrow's
termination occurred after he made comments to a coworker,
Randy Colvin, expressing frustration about police
officers' repeated violations of a city policy that
required them to remove their service weapons from their
vehicles before bringing them to the garage for maintenance.
Colvin had just discovered a semi-automatic rifle left in the
back of a police cruiser he was working on. Colvin gave the
gun to Zastrow, who made the gun safe and gave it back to
Colvin to place in a secure locker. While he was still
holding the gun, Zastrow complained about the frequent
violations of the policy and allegedly said something like
"Maybe now I will get some respect," referencing
the gun. Colvin stated that he did not feel threatened. He
described Zastrow's demeanor as "bummed out"
and "worried." Colvin described the incident to
other city employees, however, and those employees complained
to city management.
matter was eventually referred to the Department of Public
Works for an investigation. After the investigation, Zastrow
was fired. The city cited two grounds for termination: (1)
violating a city rule that prohibited threatening statements
made to another city employee at work, and (2) violating a
city rule that prohibited dishonesty during an investigation.
asked his union to pursue a grievance on his behalf. The
union filed a notice of intent and formed an ad hoc committee
to investigate. The grievance committee report recommended
against pursuing a formal grievance. The union gave two
reasons for not proceeding to arbitration. First, the union
did not want to set a precedent that it would be expected to
arbitrate other cases in the future. And second, the union
concluded that there was a low likelihood that it could
prevail at arbitration.
brought this action claiming, in relevant part, that the
union breached its duty of fair representation when it
dismissed plaintiff's formal grievance without proceeding
to arbitration. The trial court granted defendants'
motions for summary disposition under MCR 2.116(C)(10) and
dismissed the lawsuit. A divided panel of the Court of
Appeals affirmed in an unpublished decision. Zastrow sought
leave to appeal that decision here.
duty of fair representation at least includes the following
three responsibilities: "(1) 'to serve the interests
of all members without hostility or discrimination toward
any', (2) 'to exercise its discretion with complete
good faith and honesty', and (3) 'to avoid arbitrary
conduct'." Goolsby v Detroit, 419 Mich.
651, 664 (1984) (citation omitted). A union has
"considerable discretion to decide which grievances
shall be pressed and which shall be settled." Lowe v
Hotel & Restaurant Employees Union, Local 705, 389
Mich. 123, 146 (1973). "[A]n individual member does not
have the right to demand that his grievance be pressed to
arbitration . . . . When the general good [of the union's
membership] conflicts with the needs or desires of an
individual member, the discretion of the union to choose the
former is paramount." Id.
determination of what constitutes a frivolous grievance is a
matter of the union's discretion. But the duty of fair
representation requires that the union exercise its
discretion in good faith, avoiding conduct that is arbitrary,
unreasoned, or irrational. Here, the Court of Appeals
majority concluded that the union's decision was based on
its determination that the grievance lacked merit and would
not serve the union's best interest, and that Zastrow
thus failed to show that the union's decision was made in
bad faith. The Court of Appeals majority seems to have ruled
that because the union went through the motions of an
investigation, the court must defer to its conclusions. Yet
that is not our standard. "[A] union, through arbitrary
conduct and absent any bad faith, can breach its duty of fair
representation." Goolsby, 419 Mich. at 679.
"In addition to prohibiting impulsive, irrational, or
unreasoned conduct, the duty of fair representation also
proscribes inept conduct undertaken with little care or with
indifference to the interests of those affected."
the committee tasked with evaluating the individual merits of
Zastrow's case did not have any experience with
arbitration, had not been given any instructions, and had not
considered the legal standards under which the case's
merits would be evaluated. As a result, the union appears to
have erroneously focused on whether it could convince the
city to reverse its decision, when the question was
whether it could convince a neutral arbitrator. As the
dissenting judge pointed out,
[A] review of the record leads to the conclusion that any
attorney moderately skilled at litigation who reviewed the
evidence and contractual standards relevant to this grievance
would conclude that there was a strong likelihood of success,
either of prevailing outright or at least in reducing the
Zastrow v City of Wyoming, unpublished per curiam
opinion of the Court of Appeals, issued September 5, 2017
(Docket No. 331791) ...