Plаintiff appeals as of right from the trial court’s order granting summary judgment to defendant, plaintiff’s former employer, and dismissing plaintiff’s complaint for breach оf contract.
The complaint alleges that plaintiff gave up a secured position in the production unit of defendant’s Mio plant in return for a mаnagerial position on the condition that plaintiff could return to the production unit upon request. The complaint further alleges that plaintiff was discharged because he requested to return to the production unit. Defendant filed an answer denying most of plaintiff’s allegations but admitting that the reason fоr plaintiff’s discharge was his desire to return to the production unit. The trial court found that plaintiff’s employment in the managerial position was not terminable at will, citing
Ebling v Masco Corp,
In support of its contention that the present dispute should have gone to arbitration, defendant cites this Court’s test of arbitrability, as follows:
"The arbitrability of an issue requires a three-stage inquiry: (1) whether there exists an arbitration agreement in a contract between the parties, (2) whether the dispute is arguably covered by the contract and arbitration clause, and (3) whether the dispute is expressly exempt by the terms of the contract.” Clinton Twp v Contrera,92 Mich App 297 , 304;284 NW2d 787 (1979).
Defendant notes that the collective-bargaining agreement between defendant and the union representing the рroduction unit employees contained certain arbitration provisions. Defendant also notes that article 9, § G of the collective-bargaining agreement contained a provision governing the seniority of employees who transfer out of the production unit to managerial positiоn. According to defendant, since the parties’ dispute concerns plaintiff’s rights to return to the production unit from a managerial position, the dispute is at least "arguably covered by the contract and arbitration clause”, within the meaning of Contrera, supra. Defendant contends that the contract’s arbitration provisions were binding upon plaintiff despite the presence of plaintiff’s individual, oral contract of employment because "the subject mattеr of (plaintiff’s individual) contract has been covered by and superceded [sic] by the collective bargaining agreement”.
We disagree. The trial court found the dispute
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surrounding plaintiffs discharge to be arbitrable without properly applying the test for arbitrability set forth in
Contrera, supra.
Application of that test reveals that the dispute was not arbitrable. The first stage of the inquiry under that test is "whether there exists an аrbitration agreement
in a contract between the parties”.
In referring to the question whether a dispute is "arguably covered” by an arbitration agreement, defendant erroneously refers to the second part of the arbitrability test of Clinton Twp v Contrera, supra. Before addressing the question whether any dispute is "arguably covered” by a contract’s arbitration clause, defendant first must show that there is an arbitration agreement in a contrаct between the parties. Contrera, supra. As noted above, the parties agree that there were no arbitration provisions in plaintiffs individual contract of еmployment.
We note also that the arbitration provisions provide that they were applicable only to disputes which may arise between the employer and employee "concerning the application, interpretation *142 or alleged violation of any of the provisions оf this agreement”. Therefore, by their terms, the arbitration provisions were not applicable to disputes between the company and an employee concerning the application or alleged violation of any other agreements (such as plaintiff’s individual contract of employment).
We also find distinguishable all of the cases cited by defendant for the proposition that collective-bargaining agreements supersedе individual contracts of employment.
J I Case Co v National Labor Relations Board, 321
US 332;
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Similarly distinguishable are those cases cited by defendаnt for the proposition that there is a public policy favoring arbitration. In each of those cases, the party seeking to avoid arbitratiоn was either a party to a contract containing an arbitration clause,
American Fidelity Fire Ins Co v Barry,
We believe that the trial court erred reversibly in granting summary judgment on the basis that plaintiff had failed to exhaust his arbitration remedies.
There is no neеd to address plaintiffs alternative contention that the defense of failure to exhaust arbitration remedies should have been
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raised by way of aсcelerated rather than summary judgment. However, even if this Court were to address this issue, there is no merit to the argument. An incorrectly labeled motion should be considered as if it were correctly labeled, absent prejudice to the other party.
Birch Run Nursery v Jemal, 52
Mich App 23;
Reversed and remanded for trial.