During some or all of the academic years since 1974-1975, defendants were faculty members at Central Michigan University within the bargaining unit for which plaintiff, Central Michigan University Faculty Association is the exclusive bargaining representative. Defendants refused to join the association or to pay a service fee equivalent to the amount of member dues as required by the bargaining agreement between CMU and the association. On May 7, 1976, the association brought suit against defendant, George L. Stengren, for money damages in the amount of the service fees then allegedly owed and for еquitable enforcement of the service fee obligation. This suit was certified as a class action on January 4, 1977, and the other defendants were joined as parties.
The collective-bargaining agreement between the association and CMU includes a procedure for оbjecting to use of the service fees for political and ideological expenditures. On February 13, 1981, the trial court granted the associаtion’s motion for a stay of proceedings and ordered defendants to exhaust that remedy. Defendants refused to participate in the procedure. In their amended answer and counterclaim to the association’s 1980 first amended complaint, defendants requested a deсlaratory judgment that the procedure violated their First Amendment and due process rights. Their refusal to participate in the proceеdings was based *458 on the contention that forcing them to participate would also deny them those constitutional rights.
The association cоnducted its internal proceedings ex parte. On March 11, 1983, the association’s tribunal, called the Citizens Service Fee Review Committee (CSFRC), issued а decision. The association then filed a motion to affirm the CSFRC’s determination, which was treated as a motion for summary judgment, GCR 1963, 117.2(3). Defendants opрosed that motion and filed a cross-motion pursuant to GCR 1963, 117.2(3) and 521 for summary and declaratory judgment on their affirmative defenses and counterclaims that their constitutional rights were violated. After a hearing, the court ruled that it would grant the association’s motion on the ground that the stay order was never appealed and that defendants’ refusal to participate in the internal procedure "effectively waives their rights to complain about that procedure”.
On January 6, 1984, judgment was entered against each defendant and class member for past and future service fees in accordance with the decision of the CSFRC. The judgment also denied defendants’ cross-motions for summary and declaratory judgment.
Defеndants appeal from the trial judge’s February 17, 1981, order requiring them to participate in the association’s internal proceedings and from the final judgment. Plaintiff association cross-appeals from the trial judge’s determination of the amount of prejudgment interest to which it is entitled.
In
Kempner v Local 2077, AFL-CIO,
Abood
left open the question of whether the procedure provided was constitutionally sufficient.
The procedure provided by the association for *460 dissenting members to challenge the amount of service fees requires the dissenting members to object to political and ideological expenditures to the executive director of the Michigan Education Association. If the dissenting member is dissatisfied with the executive director’s determination, he may appeal to the executive committee of the board of directors of the MEA. If thе employee is still dissatisfied, he may appeal the executive committee’s decision to the CSFRC. Although this Citizens Service Fee Review Committee is composed of disinterested citizens who are not a part of or employed by the MEA or the NEA 1 or its affiliates, this committee is appointed by the president of the MEA with the approval of the board of directors of the MEA.
Because members of the CSFRC are chosen solеly by the MEA, of which plaintiff is an affiliate, the CSFRC is not an impartial tribunal. Accordingly, we find the intraunion procedure provided by plaintiff is constitutionally insufficiеnt to protect defendants’ rights. Due process of law requires that the mediator of a dispute be unbiased.
In re Murchison,
Defendants argue that the servicе fee scheme established by plaintiff permits it to spend monies in violation of defendants’ First Amendment rights. In Ellis, supra, the Supreme Court set forth a test for determining toward which expenditures of a union dissenting members could constitutionally be required to pay. The trial court did not address that question. No evidencе was presented regarding the actual expenditures made by plain *461 tiff. The record is insufficient for us to determine the constitutionality of the exрenditures. Therefore, this question cannot be reviewed at this time. Because the intraunion procedure is constitutionally inadequate, the аmount of service fees payable should be determined by the trial court on remand.
We do affirm the trial court’s method of computation оf the prejudgment interest to which plaintiff was entitled. MCL 600.6013; MSA 27A.6013 provides for prejudgment interest. In accordance with
Foremost Life Ins Co v Waters (On Rem),
Affirmed in part and remanded. Costs to defendants.
Notes
National Education Association.