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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

WILLIAM SCOTT ZASTROW,

Plaintiff-Appellant,

UNPUBLISHED

September 5, 2017

v No. 331791

Kent Circuit Court

CITY OF WYOMING and CITY OF WYOMING 

ADMINISTRATIVE AND SUPERVISORY 

EMPLOYEES ASSOCIATION,

LC No. 15-006824-CK

Defendants-Appellees.

Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (dissenting).

Plaintiff William Scott Zastrow claims that defendant City of Wyoming Administrative 

and Supervisory Employees Association (the union) violated its obligation to provide him with 

fair representation in response to his termination by defendant City of Wyoming (the city), his 

employer. As there was ample evidence to support this claim, we should reverse the trial court 

and remand for trial as to the union. Accordingly, I respectfully dissent in part.

1

Plaintiff was a supervisor in the municipal garage that repaired and maintained City of 

Wyoming vehicles. On January 26, 2015, another worker in the garage discovered a loaded rifle 

in a police car that had been left for repairs. The gun had been left there by a police officer in 

violation of department policy. Plaintiff took the gun from the other employee, made it safe and 

had the employee place it in a secured locker. Plaintiff had complained several times previously

about officers leaving loaded weapons in vehicles. While holding the weapon plaintiff made a 

statement that the city interpreted as a violation of workplace rules. It then terminated plaintiff’s

employment.

The city’s termination letter indicated that plaintiff was fired because he violated two 

workplace rules: one barring threatening behavior and the other prohibiting theft or dishonesty

including the withholding of information relevant to a city investigation. The city’s letter does 

 1

 I agree with the majority in affirming the trial court’s dismissal of the claim for injunctive 

relief.
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not state why lesser sanctions were inadequate. Plaintiff asked the union to file a grievance on 

his behalf. They refused to do so, and this suit followed.

A UNION’S DUTY TO REPRESENT ITS MEMBERS

When an employee is represented by a union, he may not file a grievance or lawsuit on 

his own behalf against the employer unless the collective bargaining agreement provides for that 

right.

2 Where such a provision is absent, as here, an employee is wholly dependent upon the 

union to file the grievance and act as his or her advocate.

The scope of this duty is defined in two Michigan cases: Lowe v Hotel & Restaurant 

Employees Union, Local 705, 389 Mich 123; 205 NW2d 167 (1973), and Goolsby v Detroit, 419 

Mich 651; 358 NW2d 856 (1984). In my view, the majority fails to afford these cases sufficient 

consideration. Lowe, following the United States’ Supreme Court’s opinion in Vaca v Sipes, 386 

US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967), eloquently set forth the fundamental legal 

principles:

A labor union has a duty fairly to represent its members.

This duty arises from the nature of the relationship between the union and 

its members. The union and its members do not deal at arms [sic] length.

The union speaks for the member. It makes a contract of employment on 

his behalf. The union offers its member solidarity with co-workers, expertise in 

negotiation, and faithful representation. In exchange, the member pays his union 

dues, and gives his support and loyalty to the union.

In many ways, the relationship between a union and its member is a 

fiduciary one. Certainly, it is a relationship of fidelity, of faith, of trust, and of 

confidence.

If the courts have stopped short of declaring the union and member 

relationship a fully fiduciary one, it is because the union, by its nature, has a 

divided loyalty.

It must be faithful to each member, to be sure, but it must be faithful to all 

the members at one and the same time.

The union must be concerned for the common good of the entire 

membership. This is its first duty.

That duty of concern for the good of the total membership may sometimes 

conflict with the needs, desires, even the rights of an individual member.

 2 See Saginaw v Chwala, 170 Mich App 459, 463-464; 428 NW2d 695 (1988).
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When the general good conflicts with the needs or desires of an individual 

member, the discretion of the union to choose the former is paramount.

When the general good conflicts with the legal or civil rights of an 

individual member, the courts will recognize those rights and enforce them as 

against the will of the majority of the union membership.

In the area of grievances, the courts have held that the union has 

considerable discretion to decide which grievances shall be pressed and which 

shall be settled. It has been said that the union has latitude to investigate claimed 

grievances by members against their employers, and has the power to abandon 

frivolous claims. Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967).

It has been held that an individual member does not have the right to 

demand that his grievance be pressed to arbitration, and the union “obviously” is 

not required to carry every grievance to the highest level, but must be permitted to 

assess each with a view to individual merit. Gunkel v Garvey, 45 Misc 2d 435; 

256 NYS2d 953 (1964).

Having regard for the good of the general membership, the union is vested 

with discretion which permits it to weigh the burden upon contractual grievance 

machinery, the amount at stake, the likelihood of success, the cost, even the 

desirability of winning the award, against those considerations which affect the 

membership as a whole. [Lowe, 389 Mich at 145-146.]

Ten years after Lowe was decided, the Supreme Court in Goolsby refined these principles 

into a three part test:

A union’s duty of fair representation is comprised of three distinct 

responsibilities: (1) “to serve the interests of all members without hostility or 

discrimination[,”] (2) “to exercise its discretion with completed good faith and 

honesty[,”] and (3) “to avoid arbitrary conduct.” [Goolsby, 419 Mich at 664

quoting Vaca, 386 US at 177.]

A violation of any of these three responsibilities constitutes a breach of the duty of fair 

representation. Id. at 667. In reviewing the actions of the union, we must view its duty broadly 

given its special relationship with its members. As noted in Goolsby, “for purposes of PERA, we 

do not interpret a union’s responsibility to avoid arbitrary conduct narrowly.[] 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.” Id. at 679.
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FACTS

Plaintiff had an excellent work record. During his previous 16 years of employment with 

the city, he had never been subject to any employee discipline, and he was given a 100% rating 

in the performance review conducted immediately before his termination. On the date in 

question he had just returned to work after several days of bereavement leave following the death 

of his father.

The city’s workplace rules required that when a police car is left at the garage, the 

officers must remove all firearms from the vehicle and the garage and store them properly in the 

police department.3 As noted above, this rule was not always followed, and Zastrow had several 

times brought it to the attention of management.4 The initiating incident began when Randy 

Colvin, a garage worker, started to work on a police car and discovered that the officers had left 

a loaded rifle in the front seat. Colvin removed the rifle as plaintiff walked over. One of them 

immediately made the gun safe though it is not clear whether it was Colvin before plaintiff took 

the gun or plaintiff after he took possession of the rifle. Plaintiff held the rifle with two hands 

across his torso, he and Colvin had a conversation, the contents of which is in dispute, and he 

then directed Colvin to place the rifle in a secure locker until it could be returned to the police 

department.

Certain facts are not in dispute, though they remain obscured by the misplaced, but 

powerful image of workplace violence raised by defendants. First and foremost, plaintiff did not 

bring a weapon to work, and he never did so in the long course of his employment. He was 

wholly un-responsible for the presence of the weapon in the garage. In fact, he had on several 

occasions complained about these occurrences on the grounds of workplace safety. Second, 

plaintiff did not remove the gun from the police car. It is undisputed that the other employee at 

the scene, Colvin, removed the gun and openly held it before plaintiff approached. Third, 

plaintiff did not undertake any dangerous actions with the rifle; he did not point it at anyone or 

even in anyone’s direction. He held it across his body, not directed outwards. Fourth, he saw to 

it that it was unloaded and placed in a safe location. Fifth, he made no threats despite the 

defendants’ attempt to imply the contrary. There was one and only one person who heard what 

plaintiff said, Randy Colvin. When interviewed by the employer and by the union Colvin 

repeatedly confirmed that plaintiff did not threaten him, that he did not feel threatened, that 

plaintiff made no threats directed at others, and that he would feel completely comfortable 

continuing to work with plaintiff. He reported that plaintiff had, while holding the rifle, said 

 3 Since 1986, the Wyoming Police Department manual has stated that long guns “shall be 

removed any time the vehicle is going out for repair” and that the weapons are to be secured in 

the police station armory.

4 Plaintiff was not alone in this concern. In 2012 a police lieutenant made a written complaint 

about police cruisers being left in maintenance with long guns still inside. However, it appears 

that no offending officers, including the officer who left the gun in this case, were ever 

sanctioned for this dangerous conduct.
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something along the lines of, “maybe I could get some respect with this,” and Colvin stated that 

he did not view this as a threat at the time of the incident or later when interviewed.

ANALYSIS

The union asserts that it did not pursue the grievance on behalf of plaintiff for two 

reasons.

First it asserts that it did not do so because it did not want to set a precedent for the 

membership regarding what they might expect to be arbitrated in the future. This claim is at best 

devoid of content, and, at worst, it is clear evidence of arbitrariness. The union’s brief wholly 

fails to articulate how pursuing plaintiff’s grievance to arbitration would leave it subject to 

seeking arbitration for grievances that were without merit. The union’s proffered concern about 

being overwhelmed by the burden of conducting arbitrations on behalf of its members should be 

viewed with substantial skepticism in light of the fact that it has not pursued a single employee 

grievance to arbitration in its entire history at this workplace. If the union refused to represent 

plaintiff in this grievance because it had a policy never to do so then the denial of representation 

is clearly “arbitrary conduct.”

Second, the union states that after considering plaintiff’s request, it concluded that the 

likelihood of prevailing at arbitration was low. The union is entitled to consider this factor, but it 

must do so fairly and in good faith. The mere fact that the union conducts an investigation does 

not settle the issue of good faith.5 If the union, despite substantial evidence to the contrary, 

merely adopts the employer’s view of the facts, then its good faith should not be assumed. Here,

the record readily supports a conclusion that the union was exclusively concerned with whether it 

could convince the employer to unilaterally reverse its decision to fire plaintiff rather than 

whether it could convince a neutral arbitrator to reverse it. As I read the record, the union’s 

assertion that plaintiff’s situation could not be improved at arbitration has little basis. Indeed, 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 

sanction.

 5 There is also evidence that the decision to deny plaintiff’s request for representation was made 

before the union’s investigation was fully concluded. Jaimie Petrovich, a member of the 

Grievance Committee testified that “[f]rom the very beginning when we filed the Notice of 

Intent [March 16, 2015, 5 weeks before the Grievance Committee issued its report] and after we 

made our decision it was communicated all along that there was no intent to file a formal 

grievance.” (Emphasis added). The majority states that “in context” Petrovich’s statement did 

not suggest a premature decision. I disagree with this characterization. As I read the deposition 

and the rest of the record, it seems to me that the decision not to pursue a formal grievance was 

made and communicated to plaintiff early in the process. The union made clear that it filed the 

Notice of Intent to pursue a grievance in order to maintain pressure on the city to compromise, 

but in fact it had determined from the outset that it would not file a grievance.
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The likelihood that a grievance would be successful turns largely on whether an arbitrator 

would agree with the employer’s claim that plaintiff violated the two cited workplace rules, i.e. 

one barring dishonesty and the other barring threatening conduct. The record demonstrates that 

these claims rested on suspect interpretations of weak evidence. First, the termination letter 

stated that plaintiff violated City Rule 2(a) the rule against dishonesty because he was not fully 

truthful during the investigation.6 It asserted that plaintiff had violated this rule by initially 

admitting on January 28, 2015 that he “had said something that [he] should not have said” during 

the incident but later submitted a written statement about the incident in which he stated that he, 

“ ‘did not recall’ making any comments about disrespect among Public Works employees and 

also did not recall saying anything about getting respect while [he was] holding the gun.” 

However, there is no documentary evidence that plaintiff ever stated that he “said something he 

shouldn’t have.” Nor did any employee state that they heard defendant make such a remark. 

The only evidence of this initial statement by plaintiff was the recollections of two managers, 

which were not documented. Thus, the premise of plaintiff’s “dishonesty” rested on a “he saidhe said” claim by management. Moreover, assuming plaintiff had made this admission, it 

contains no specific statements that plaintiff indicated he recalled saying during the incident. It 

appears that his lack of recollection of what he said to Colvin was consistent throughout. The 

union does not state why it believes the undocumented assertions of the managers. Nor does the 

union state why plaintiff’s written statement that he “did not recall” making the comments that 

the managers recollected he made evidences a deliberate lie as opposed to a mere failure of 

memory. Given these facts, a strong case could be made that even if defendant violated this rule, 

a lesser sanction was in order.

The termination letter also cited City Rule #3(e), which according to the letter, 

“prohibit[s] abusive, intimidating, threatening or coercive treatment, physical and/or mental, of 

another employee.” The letter did not refer specifically to any statement or conduct by plaintiff 

as the basis for its finding that he had violated this rule. However, the letter described the 

incident as follows:

[Y]ou were in the Fleet Services area of the Public Works building and observed a 

staff member removing a gun from the trunk of a police vehicle. You asked the 

employee if the gun was loaded and he said it was not. You then took the gun to 

check if it was loaded and it was not. You made comments expressing your 

frustration about guns being in police vehicles when the vehicles are brought to 

Fleet Services for maintenance. During the conversation, your comments 

escalated emotionally and you expressed your frustration about what you 

perceived as a lack of respect among Public Works employees. While holding the 

gun across your body, you made a remark to the effect of, “Maybe now I will get 

some respect.”

 6 The rule “prohibit[s] theft or dishonesty of any kind including lying, falsification of City 

records or reports, and withholding information in a City investigation.”
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Although the letter of termination ends its description of the incident at that point, it is 

undisputed that following his remark, plaintiff handed the gun back to the other employee and 

directed him to place it in the locker used for such purposes. Moreover, there is no dispute that 

at the time the gun was held by the plaintiff it had already been made safe.7 And, as already 

noted, plaintiff was not responsible for the gun’s presence. Under these circumstances, it would 

be quite reasonable for an arbitrator to conclude that plaintiff did not engage in threatening or 

intimidating behavior and that his conduct, even if unwise, did not rise to the level of good cause 

for termination.

CONCLUSION

Lowe instructs that “a union has the power to abandon frivolous [grievance] claims.” 

389 Mich at 146. Plaintiff’s claim was by no means frivolous. He was fired after 16 years of 

excellent performance based upon an incident that occurred because someone else left a gun 

where it did not belong. After the gun was discovered, plaintiff handled it in a manner to protect 

his fellow workers. There is evidence that during the incident he made a statement that was illadvised, but there is no evidence that he ever threatened any or presented a danger to anyone.

Lowe also states that “[w]hen the general good conflicts with the needs or desires of an 

individual member, the discretion of the union to choose the former is paramount.” Id.

However, defendant has abjectly failed to demonstrate beyond a question of fact that the 

“general good” of the union’s membership conflicted with filing a grievance on behalf of 

plaintiff. To the contrary, by failing to file a grievance on plaintiff’s behalf, the union sent a 

clear message to the membership and the employer that even where an employee has a long 

unblemished work record, the union will not come to the assistance of a member who makes a 

single mistake that results in no harm. Because the evidence clearly establishes a question of 

fact whether the union met its duty of fair representation I would reverse the grant of summary 

disposition and remand for trial.

/s/ Douglas B. Shapiro 

 7 In addition, Colvin stated that plaintiff was “not angry,” but instead seemed “tearful” and 

“bummed out,” unsurprising feelings given that plaintiff had just returned from burying his 

father.