            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



REGISTERED NURSES, REGISTERED                                       UNPUBLISHED
PHARMACISYS UNION, BILLIE JO BUSBY,                                 April 18, 2019
and LEAANN FRANK,

               Plaintiffs-Appellees,

v                                                                   No. 343473
                                                                    Genesee Circuit Court
HURLEY MEDICAL CENTER,                                              LC No. 17-109766-CL

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

PER CURIAM.

         Defendant appeals as of right an order granting summary disposition in favor of plaintiffs
in this action to compel arbitration. We affirm.

                          I. RELEVANT FACTUAL BACKGROUND

        Billie Jo Busby and LeaAnn Frank are members of the Registered Nurses, Registered
Pharmacisys Union (RNRPh), and were employed by defendant. On May 11, 2017, they were
both absent from work. In June 2017, defendant terminated Busby and Frank for allegedly
striking on May 11, 2017, in violation of Article 36 of the collective bargaining agreement
(CBA) between RNRPh and defendant. Thereafter, RNRPh filed grievances challenging the
discharges and requested arbitration of the grievances pursuant to the CBA. Defendant denied
the grievances, as well as the request for arbitration. Plaintiffs filed this action to compel
arbitration of the grievances and alleging breach of the CBA. The trial court granted summary
disposition in favor of plaintiffs, ordering arbitration of the dispute. This appeal followed.

                            II. SUBJECT-MATTER JURISDICTION

       Defendant first argues that the trial court lacked subject-matter jurisdiction because a
public employee’s exclusive mechanism to challenge a strike-related discipline is to request a
hearing under § 6 of the public employment relations act (PERA), MCL 423.201 et seq. We
disagree.


                                                -1-
       The issue of subject-matter jurisdiction may be raised at any point in the proceedings.
Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 527-528;
695 NW2d 508 (2004). Whether the trial court had subject-matter jurisdiction is a question of
law that we review de novo. Id. at 527.

        “Jurisdiction of the subject matter is the right of the court to exercise judicial power over
a class of cases, not the particular case before it; to exercise the abstract power to try a case of
the kind or character of the one pending.” Glen Lake, 264 Mich App at 528 (quotation marks
and citation omitted). “Jurisdiction always depends on the allegations and never upon the facts.”
Workers’ Compensation Agency Dir v MacDonald’s Indus Prods, Inc (On Reconsideration), 305
Mich App 460, 478; 853 NW2d 467 (2014) (quotation marks and citation omitted).

       In this case, plaintiffs’ complaint sought to compel arbitration and alleged breach of the
CBA. The arbitrability of an issue is a question for the court to decide. As stated by this Court
in Burns v Olde Discount Corp, 212 Mich App 576, 580; 538 NW2d 686 (1995):

               The existence of an arbitration contract and the enforceability of its terms
       are judicial questions that cannot be decided by the arbitrator. To ascertain the
       arbitrability of an issue, the court must consider whether there is an arbitration
       provision in the parties’ contract, whether the disputed issue is arguably within
       the arbitration clause, and whether the dispute is expressly exempt from
       arbitration by the terms of the contract. [Citations omitted.]

This was precisely the issue addressed by the trial court in this case.1 Similarly, the issue of
whether a party breached a CBA involves the interpretation of a contract, which is a question of
law that is decided by a court. See Kendzierski v Macomb Co, 319 Mich App 278, 282; 901
NW2d 111 (2017); Butler v Wayne Co, 289 Mich App 664, 671; 798 NW2d 37 (2010).
Accordingly, given the allegations in plaintiffs’ complaint, the circuit court had subject-matter
jurisdiction over this case.

        Given that the trial court had the right to exercise judicial power over this case,
defendant’s claim that PERA prohibits arbitration in this case is not a question of subject-matter
jurisdiction. Rather, it is a question of statutory interpretation, which is also a question of law
that could be decided by the trial court, and that we review de novo. McNeil v Charlevoix Co,
275 Mich App 686, 691; 741 NW2d 27 (2007), aff’d 484 Mich 69 (2009). “When interpreting a
statute, this Court’s goal is to ascertain and give effect to the intent of the Legislature by
applying the plain language of the statute.” Id.2



1
  In its response to plaintiffs’ motion, defendant even acknowledged that whether an issue is
subject to arbitration is an issue of law for the court.
2
  In its response to plaintiffs’ motion for summary disposition, defendant mentioned that its
position was that this case is not subject to arbitration because “it involves a legal dispute within
the exclusive jurisdiction of PERA.” Therefore, defendant’s argument was raised below;
however, it was not expressly decided by the trial court. Nonetheless, defendant’s claim that


                                                -2-
       Section 6 of PERA provides:

              (1) Notwithstanding the provisions of any other law, a public employee
       who, by concerted action with others and without the lawful approval of his or her
       superior, willfully absents himself or herself from his or her position, or abstains
       in whole or in part from the full, faithful and proper performance of his or her
       duties for the purpose of inducing, influencing or coercing a change in
       employment conditions, compensation, or the rights, privileges, or obligations of
       employment, or a public employee employed by a public school employer who
       engages in an action described in this subsection for the purpose of protesting or
       responding to an act alleged or determined to be an unfair labor practice
       committed by the public school employer, shall be considered to be on strike.

               (2) Before a public employer may discipline or discharge a public
       employee for engaging in a strike, the public employee, upon request, is entitled
       to a determination under this section as to whether he or she violated this act.
       The request shall be filed in writing, with the officer or body having power to
       remove or discipline the employee, within 10 days after regular compensation of
       the employee has ceased or other discipline has been imposed. If a request is
       filed, the officer or body, within 5 days after receipt of the request, shall
       commence a proceeding for the determination of whether the public employee has
       violated this act. The proceedings shall be held in accordance with the law and
       regulations appropriate to a proceeding to remove the public employee and shall
       be held without unnecessary delay. The decision of the officer or body shall be
       made within 2 days after the conclusion of the proceeding. If the employee
       involved is found to have violated this act and his or her employment is
       terminated or other discipline is imposed, the employee has the right of review to
       the circuit court having jurisdiction of the parties, within 30 days from the date of
       the decision, for a determination as to whether the decision is supported by
       competent, material, and substantial evidence on the whole record. A public
       employer may consolidate employee hearings under this subsection unless the
       employee demonstrates manifest injustice from the consolidation.                This
       subsection does not apply to a penalty imposed under section 2a. [MCL 423.206
       (emphasis added).]

         In support of its argument, defendant relies on the Michigan Supreme Court’s decision in
Lamphere Sch v Lamphere Federation of Teachers, 400 Mich 104, 114; 252 NW2d 818 (1977),
in which it held, based on the language of § 6, that “the statutorily permitted discipline-discharge
should be the unitary and exclusive remedies available to public employers in dealing with
illegal strikes by public employees in violation of the PERA’s Section 2 strike prohibition.” The



PERA prohibits arbitration in this case is a question of law and the relevant facts are available;
therefore, we may review this issue. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App
513, 519; 773 NW2d 758 (2009).


                                                -3-
Court concluded, therefore, that the plaintiff school district was barred from suing the defendant
teachers’ union for damages under traditional common-law tort theories. Id. at 107.

        Contrary to defendant’s claim that Lamphere stands for the proposition that “a public
employee’s ‘exclusive’ mechanism to challenge strike-related discipline is to request a § 6
hearing under PERA,” Lamphere addressed and expressly referred to the exclusive remedy
available to public employers. Lamphere, 400 Mich at 114. The Court did not discuss the
remedies available to employees or unions and, thus, that decision does not bar plaintiffs’ request
for arbitration in this case. Similarly, the plain language of § 6 provides only that an employee is
entitled to a determination under that section; it does not limit the remedies available to
employees or unions. See MCL 423.206(2).

        Defendant also relies on Rockwell v Bd of Ed of Sch Dist of Crestwood, 393 Mich 616,
628; 227 NW2d 736 (1975), but that case similarly stated that § 6 provides “a specific, unitary
procedure for the discipline of public employees.” It did not discuss the remedies available to
public employees. Accordingly, defendant fails to support its claim that PERA prohibits
arbitration of this matter.

        Finally, defendant cites Kent Co Deputy Sheriffs’ Ass’n v Kent Co Sheriff, 238 Mich App
310, 325; 605 NW2d 363 (1999), aff’d but criticized 463 Mich 353 (2000), in which this Court
stated that “PERA is the exclusive remedy for any unfair labor practice charge, and the
[Michigan Employment Relations Commission] has exclusive jurisdiction to adjudicate such
charges. A plaintiff cannot obtain another remedy by framing the unfair labor practice as a
different species of common-law or statutory claim invoking the jurisdiction of a different
tribunal.” Plaintiffs’ complaint, however, did not expressly allege an unfair labor practice. Nor
has defendant asserted, either below or on appeal, that plaintiffs have alleged an unfair labor
practice. Because defendant has failed to provide any support for its suggestion that this case
involves an unfair labor practice charge, this argument is abandoned. See Peterson Novelties,
Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003).

                                 III. SUMMARY DISPOSITION

        Defendant also argues that the trial court erred by granting plaintiffs’ motion for
summary disposition because plaintiffs failed to state an arbitrable claim under the CBA and
failed to proffer any admissible evidence in support of their motion. Again, we disagree.

        The trial court granted plaintiffs’ motion for summary disposition under MCR
2.116(C)(7), (8), and (10), ruling that the matter was required to go to arbitration. Summary
disposition under MCR 2.116(C)(7) is appropriate where the parties have “entered a valid and
enforceable arbitration agreement.” Galea v FCA US, LLC, 323 Mich App 360, 365; 917 NW2d
694 (2018). Therefore, MCR 2.116(C)(7) was the proper ground for summary disposition in this
case. “We review de novo a trial court’s decision to grant or deny a motion for summary
disposition under MCR 2.116(C)(7).” Id. at 368. “Whether a dispute is arbitrable represents a
question of law for the courts that we review de novo.” Madison Dist Pub Sch v Myers, 247
Mich App 583, 594; 637 NW2d 526 (2001).

       In Madison Dist Pub Sch, 247 Mich App at 595, this Court stated:

                                                -4-
       To ascertain the arbitrability of an issue, the court must consider whether there is
       an arbitration provision in the parties’ contract, whether the disputed issue is
       arguably within the arbitration clause, and whether the dispute is expressly
       exempt from arbitration by the terms of the contract. Any doubts regarding the
       arbitrability of an issue should be resolved in favor of arbitration. [Citations
       omitted.]

See also AFSCME v Hamtramck Housing Comm, 290 Mich App 672, 674; 804 NW2d 120
(2010) (“Where an employer and a union have contractually agreed to arbitration, in the absence
of explicit contractual direction to the contrary, all doubts regarding the proper forum should be
resolved in favor of arbitration[.]”).

      In this case, the relevant provision of the CBA is Article 36, titled “No Strike, No
Lockout,” which provides, in relevant part:

               The Employer shall have the right to discipline or discharge any Employee
       participating in such interferences, and the Organization agrees not to oppose such
       action. It is understood, however, that the Organization shall have recourse to
       the grievance procedure as to matters of fact in the alleged actions of such
       Employees. [Emphasis added.]

        Defendant argues that there is no disputed matter of fact for the arbitrator to resolve,
while plaintiffs argue that there is a question of fact regarding whether Busby and Frank called
off work on May 11, 2017, for an illness or to engage in a strike. Contrary to defendant’s
assertion, however, Article 36 does not require a disputed matter of fact; rather, it provides that
the grievance procedure is available regarding “matters of fact.” Whether Busby and Frank were
striking or were sick, as alleged in plaintiffs’ complaint, is a matter of fact that must be resolved
by the arbitrator pursuant to Article 36 of the CBA. Although defendant may present to the
arbitrator undisputed evidence that plaintiffs were engaged in a strike, the question of fact is for
the arbitrator to decide. Moreover, any doubt regarding whether this question is arbitrable must
be resolved in favor of arbitration. See AFSCME, 290 Mich App at 674; Madison Dist Pub Sch,
247 Mich App at 595. Therefore, the trial court did not err by granting summary disposition in
favor of plaintiffs on the basis that the CBA required arbitration of the issue.

       Affirmed.

                                                              /s/ Kathleen Jansen
                                                              /s/ Patrick M. Meter
                                                              /s/ Elizabeth L. Gleicher




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