*1 98 742 742 RAPIDS EDUCATION ASSOCIATION MALE v GRAND 6, 1980, February Rapids.— at Grand 43290. Submitted Docket No. 22, 1980. applied appeal July Leave to for. Decided Male, Rapids public the Grand tenured teacher with David a brought declaratory judgment system, in action for an school illegal seeking a to declared certain Kent Circuit Court have Rapids by Association made the Grand Education assessment part part dues members and as of the association’s for responsibility Plaintiff was not a fee for nonmembers. financial (GREA), Rapids Education Association member of the Grand agent employed by bargaining the teachers the exclusive kindergarten through Rapids system for Grand school rather, respon- grade; plaintiff payed yearly financial twelfth equivalent sibility dues GREA members. fee GREA 1975, plaintiff for the 1975-1976school In GREA informed responsibility a ten dollar year fee would include his financial mandatory program fund teacher assistance assessment for Fund). (TAP TAP Fund was Because believed strikes, refused intended to aid teachers portion responsibility repre- pay financial fee that his Pursuant collective sented TAP Fund assessment. assessment, employment plaintiff’s could be termi- responsibility pay his nated of his failure financial reason fee in full. seeking the TAP Fund assessment In addition have [3, [1,10] [4] [2] [7] [8] [6] [5] [12] [9] Attorney’s fees Attorney’s fees in class actions. 38 ALR3d 1384. 59 Am Jur 59 Am Jur 11] 59 Am Jur 59 Am Jur 59 Am Jur 73 Am Jur 59 Am Jur Am 59 Am 48A Am Jur Jur Jur 2d, 2d, 2d, 2d, Summary Judgment 2d, 2d, 2d, 2d, References in class actions. 2d, Parties 54 et Parties 85.§ Parties Parties Parties 91. Labor and Labor Relations Parties 54. 2d, Parties § Labor and Labor Relations §§ §§ §§ § § § for Points 63-65, 51 et 58 et seq. seq., 38 ALR3d 1384. 71-74. seq. 91. §§ 1, 26, Headnotes § 27. et seq. 2034. Rapids Male v Grand Ed Ass’n illegal, plaintiff sought declared in his circuit court action GREA, against Michigan Education Association and the City Board of Education for the of Grand to have his *2 discharge employment threatened illegal from declared and to have his action declared purpose to be a class action for the securing the refund of TAP Fund assessment for all those persons required same, pay who were including to the GREA summary judgment members. Cross motions for were filed. The court, Letts, Jr., trial John T. held that the TAP Fund assess- illegal ment furnished illegal to strikes and was thus plaintiff’s discharge and that the nonpayment threatened to illegal. that fund was likewise The circuit court refused to certify plaintiff’s plaintiff’s action as class action and denied requested attorney award of fees. Defendants GREA and the Michigan appeal. cross-appeals. Education Association Plaintiff Held: Fund, by assisting 1. The TAP teachers who were not em- ployed by illegal public strike, reason of an teachers’ consti- illegal Being illegal fund, tutes an plain- strike fund. an strike obligated pay tiff teacher was not the assessment for that discharged employment fund and could not be from his for his nonpayment portion represented of that of his fee that his illegal contribution to the fund. Michigan, may 2. In only class action be maintained when (1) (2) class; is shown that: there is an identifiable the persons large number of in that class is so it would be impracticable bring (3) court; person them all before the seeking represent (4) class; the class is a member of the (5) adequately represented; interests of the rights class are sought (6) several; to be enforced are there is a common question (7) affecting rights; of law or fact the several a com- (8) being sought; mon relief is the maintenance of the case as a class action jus- serves the convenient administration of tice. Plaintiff, 3. to the extent that he seeks the return of the illegal assessments, TAP Fund is a member of the class of all paid assessments, including those who those members of GREA. proof In the contrary, absence of it will be assumed that plaintiff adequately represent would of the class through qualified counsel. question 4. potentially composed Because the class in members, question common, to be resolved is computation any damages for each member of the class is simple recovery small, for each member is a class justice. action serves the convenient administration of The in a class of a class to intervene other members failure of mere being plaintiff disqualify from is no reason action representative. class awardable, fees, normally Attorney are awarda- while not 5. attorney may awarded in class Such fees be in class actions. ble involving union assessment and the return of an actions from the fund created be recovered such award illegal assessments. question be allowed whether should 6. The on action should be determined action as a class maintain his desire to members of the class who of the number of the basis therefore, matter, is remanded to included in the class. granted adequate time shall be where the circuit court opt permit the class to into the action. members of other determine, principles of in accordance with the shall trial court equity, reasonable attor- should be awarded whether fees, depending upon the nature and ney such determination upon intervening conferred of the benefit extent members.
Remanded. *3 C.J., could with the conclusion Danhof, concurs pay discharged employment for his failure to from his not be however, assessment; disputed he would not reach that illegal Fund was an strike on the basis that the TAP conclusion that, fund, Fund is outside since the TAP rather he would hold union, required the TAP Fund assessment is functions of a responsibility proper fee. included in a financial fee to be is not a member further hold that He would and, thus, properly could not GREA members same class as bring on their behalf. a class action
Opinion of the Court Employees — — Associations Public Teacher 1. Labor Relations Illegal Illegal Supporting — — Strikes Assessments Validity — — of Unlawful Union Strikes Enforcement Assessment. purpose an educational association for A fund maintained assisting public tends to teachers are on strike school who of statute, accordingly, which, prohibited; encourage strikes mandatory for such a fund are and teachers assessments discharge pursuant compelled, to a threat of under cannot be bargaining agreement, pay such an assessment collective responsibility mandatory part financial fee. aof Male v Grand Ed Ass’n — — Requirements 2. Actions Class Actions Maintain Class — Action Court Rules. pursuant A class action Michigan be maintained to the court (1) only rules when it is shown that: there is an identifiable (2) class; persons large the number of in that class is so that it impracticable bring (3) court; would be them all before the person seeking represent the class is a member of the (4) class; adequately represented; the interests of the class are (5) (6) rights sought several; to be enforced are there is a (7) question affecting rights; common of law or fact the several (8) sought; a common relief is the maintenance of the case justice as a class action serves the convenient administration of (GCR 1963, 208.1[3]). Membership — — — Adequacy 3. Actions Class Actions Class Representation of Class Interests. join A school teacher who has chosen not to a teacher’s union but pay responsibility is, rather a financial fee in lieu of union dues purpose bringing testing legality for the a class action mandatory payments, strike fund a member of the same class and, joined as the teachers who the union in the absence of proof contrary, adequately represent will be assumed to through qualified of the class counsel. — — 4. Actions Class Actions Convenient Administration Justice. justice A class action serves the convenient administration of members, potentially composed where the class is of 1800 question legality common is the of certain union dues and the computation damages as to each member of the class is simple; particularly a class action is suitable where the recov- ery for each member of the class is small. — — 5. Actions Class Actions Intervention of Other Class Mem- Representation —bers of the Class. The mere failure of other members of a class in a to intervene disqualify person persons class action is no reason to or bringing being representative a class action from the class or representatives. *4 Attorney — — 6. Actions Class Actions Fees. fees, Attorney expressly while not awardable unless authorized rule, by actions; statute or court are awardable in where a class assessments, refunding illegal class of action involves union by attorney an award of reasonable fees from the fund created permissible. those assessments is — — — Members Included the Class 7. Actions Class Actions in Attorney — Fees. the Class Numbers spurious question action be allowed whether a class should of on the basis of the number or dismissed is to be determined class; to who desire be included in the extent members may depends attorney be to which reasonable fees awarded upon upon the and extent of the benefit nature conferred intervening class members. by Danhof, J. in Part and Dissent in Part C. Disputed Judgments Summary Judgments — — Fact. Question 8. improper grant summary judgment holding a that certain It is to against public mandatory assessments made a school teacher illegal on the a teachers’ association are basis illegal a assessments are an strike fund where there was disputed question of fact as for which the to whether fund fact, was, exclusively fund assessments were made a strike (GCR1963,117.2[3]). — — — Required 9. Labor Relations Unions Union Functions Right Support Sup- — of Unions to Financial Extent of port. right organization compel support to is limited to of a labor justiAed by the extent that the made are the costs assessments bargaining, griev- collective contract administration adjustment organization ance services the labor is re- which persons quired provide to all in its unit. — — — 10. Labor Relations Unions Union Assessments Use — Burden of Assessments Proof. Payment public school fund a teacher of an assessment for a employment used to not assist teachers who are without compelled by alleged a teachers’ association where it is association, the fund strike is an fund and the while admitting that the entire is to be assessment used illegal strikes, portion fails show that some measurable applied proper purposes; the fund is to be the burden proving proper mandatory use of a union rests assessment upon organization seeking a labor assess- of an enforcement ment. Membership — — — 11. Actions Actions a Class of Class Inter- Representation — ests of a Class of a Class. person pays A is not a who member of a union but rather responsibility union a is not Anancial fee in lieu union dues proper party bring persons paying union on of all behalf *5 Rapids Male Ed 747 v Grand Ass’n Opinion op the Court assessment, members, including challeng- union a class action assessment, ing validity of the union since there can be no person presumption that a who is not a union member has the same interest in the elimination the assessment as those union; joined person persons a who the interests of who is sufficiently a union member are not similar to the interests respect to with union so as to of union members assessments person adequately represent nonunion the union enable the indeed, action; person’s in a class such a interests members antagonistic may to the interests of the class he seeks to represent. Appropriateness op Representa- — — 12. Actions Class Actions op a tion Class. permit person The class action device not be used to temper of others where there is no benefit person seeking bring the class action. Cummiskey Miller, Johnson, Snell & John G. (by Sarb), P. March and Thomas for plaintiff. Coey, Foster, Swift, Collins & P.C. James A. (by Schneider), Bush White Karen for Grand Rap- Michigan ids Education Association and Education Association. Danhof, C.J., and R. B. and Mac-
Before: Burns kenzie, JJ. Burns, Male, Plaintiff,
B.R. J. David is a certi- Rap- fied tenured teacher the Grand employed by ids In the of his public system. school course financial re- employment, plaintiff pays yearly defendant sponsibility fee which is assessed (GREA).1 De- Rapids Grand Education Association GREA, Michigan fendant an affiliate of defendant (MEA), Association is the exclusive bar- Education employed by for teachers gaining representative kindergarten school system Grand responsibility equivalent of the dues The financial fee is the paid by any join the GREA. teacher who elects not to GREA Opinion of the Court GREA grade. In defendant twelfth through responsibility financial that his informed would include a year 1975-1976 school for the fee teacher mandatory for a assessment ten-dollar Fund). (TAP Because program fund assistance TAP intended Fund was plaintiff believed *6 strikes, illegal engaged aid teachers who to of his financial pay portion refused to the plaintiff the TAP Fund represented fee that responsibility assessment. collective bar- parties’ the terms of the
Under the pay if a teacher fails gaining agreement, employ- fee the teacher’s responsibility financial Board of the defendant by ment will be terminated Rapids. In March of the of Grand City Education charges against plain- filed defendant GREA Education, seeking of Board tiff with the defendant pay for his refusal discharge plaintiff of Education, The Board of TAP Fund assessment. and defendants plaintiff the concurrence MEA, to hold a tenure and resolved GREA TAP Fund assess- of the hearing legality until adjudicated. ment was judgment was declaratory
This action for Circuit Court for a brought County in the Kent the TAP Fund legality on the determination TAP court held that assessment.2 The trial court, plaintiff requested: by As summarized the trial "[0]ne, Declaratory Judgment assessment a the strike fund public employees purpose supporting by strikes made for the illegal discharge pay it; compelled under the threat of and that cannot be discharged refusing pay an or be such assessment two, Judgment Declaratory the strike fund assessment a responsibility properly part mandatory financial fee is not Bargaining Agreement defendants under the Collective between Education, plaintiff cannot be and the Board of and that GREA discharged three, assessment; pay for his refusal ordering Judgment all this defendant GREA to refund to Court Rapids public system school strike teachers in the Grand fund assessments action).” (the collected to date latter is in the role of a Male v Grand Ed Ass’n Opinion of the Court Fund is a strike fund and it, that contributions to discharge, illegal. forced under threat of certify trial court denied a motion the suit as a class action and later held that attorney fees were not awardable. Defendants appeal portion GREA and MEA of the trial judgment declaring court’s the TAP Fund an ille- gal plaintiff cross-appeals fund, strike certify court’s refusal to the suit as a class action attorney and the denial of fees. began inquiry legal-
The trial court its into the ity mandatory by noting TAP Fund assessments purpose the stated of the fund which is: provide "To direct assistance to teachers in the form of financial if the employment has entirely disappeared or is temporarily unavailable either be- cause of the concerted act of employer employ- or ees.” parties stipu- court, As observed have Tap "[t]he lated that Fund be used to assist *7 public engaged against school teachers in strikes public employers their and has in fact been so used”. provides
Based on the fact that
the TAP Fund
engaged
financial assistance to teachers
in strikes
against
public employers,
the trial court held
the fund is
And,
a strike fund.
based on the
by public employees, including
fact
that strikes
public
prohibited
teachers,
school
under Michi-
gan
17.455(2),3
law,
MCL
MSA
the court
423.202;
mandatory
further found that
strike fund are
assessments for this
and
cannot
teachers
compelled
discharge
pay
under threat of
such
3See, Lamphere
Lamphere
Teachers,
Schools v
Federation of
104;
(1977),
Mich
We argument merit in defendants’ find no teachers support only Fund furnishes TAP noted, the trial court As not to strikes. and the fund is a availability existence mere assume that logical to only and it is force powerful there to strike where likely more will be teachers backing. financial strong act, relations Further, employment public 17.455(1) seq., explic- et MSA seq.; 423.201 et MCL per- strikes by the authorization prohibits itly 17.455(3), 423.203; MSA in MCL authority. sons provides part: authority, supervision or exercising any person "No have the public employee shall any over
direction authorize, a strike approve or consent to power to authorize, person shall employees, and such public strike.” to such approve or consent exists, has the GREA presently system As the agreement, the collective under power, discharge Education Board of compel Fund. As the TAP who refuse teachers instigates teacher supports fund itself contributions strikes, mandatory enforcement activi- of such approval the fund is tantamount of the act. in direct contravention ties holding therefore, court, did not err trial assess- mandatory not enforce that GREA could TAP Fund. ments for the payment found
Though the trial court compelled cannot be TAP Fund assessment plain- refused the court discharge, under threat *8 4 applies equally which are to union dues The court’s determination GREA. teacher members of defendant collected from the Male v Grand Ed 751 Ass’n Opinion of the Coukt tiffs request to order the refund all the assess- ments collected GREA. Plaintiffs request was petition made in the form of a to certify the action as a class action. The court’s refusal was based on (1) grounds: two no had affidavits been submitted (2) persons action, joining other before 1975, April contributions to the TAP Fund were made on basis. voluntary The court stated it opinion "hesitates render an in favor of those persons who have protest rendered no particularly on they what on contributed a voluntary basis”. 1963,
Class provided 208, actions are for GCR in part: which states persons constituting ".1 If a class are so numerous as impracticable bring make it them all before the court, them, more, fairly such of one or as will insure adequate representation of all on behalf of all right sought sue or be sued when the character against
to be enforced or the class is "(3) several, question and there is a common of law or affecting fact the several and a common relief is sought.”
In Grigg Bank, v Michigan National 148, 167; (1979), Michigan NW2d Supreme Court delineated requirements which must met be order to maintain a class action 208.1(3): pursuant to GCR "1. class; There must be an identifiable 2. persons The number of in the be class must so would, large impracticable bring be them all court; before the person seeking "3. persons represent or thereof; class must be members "4. adequately The interests of the must represented; *9 98 op Opinion the Court rights sought must be to be enforced right or "5.
several; question of or fact be a common law "6. There must rights, affecting the several sought.” A relief must be "7. common record, the we find that the After a review of criteria, above-noted meets all of the present case that the main- requirement as further as well the action must serve of the case as a class tenance Griggs, of justice”. administration the "convenient supra, 184. action, rights sought be enforced
In this separate claim several, each teacher has is assessment; there a common of his to a refund involved, illegality or legality question of law assessment; sought relief and common is of declaratory petition judgment the form of a for is illegal. that the assessment plaintiff that is a member of undisputed It is represent, how- interest he seeks to class whose ever, argue inap- that a class action is defendants eight or teachers only the seven propriate because GREA paid joining assessment without who members the class. eligible would be GREA, members maintain Defendants 1,813, as- should be numbering approximately the assessment paid sumed have voluntarily voluntary association with GREA. virtue strike We cannot conclude associa- automatically voluntary activities follows GREA, all tion with and therefore we hold that eligible unit teachers in the would be action. also find that join the class We class, no represent as there is adequately will pur- not continue indication will through vigorously sue qualified counsel. Male Ed v Grand Ass’n Opinion of the Court requirement that a class action be in accor-
dance the convenient jus- administration refers chiefly practical tice in- problems in conducting volved an action aas class action. Grigg, See supra, Though 184-189. the number of persons potentially class, in the approximately large is too to be conveniently joined by plaintiff, too large to be managed court, as each member is known to defendants and is easily Moreover, informed of the action. *10 computation of damages simple. Each member (ten will to be entitled twenty dollars5 dollars for years each of the two assess- mandatory ment was every except collected from teacher plaintiff). fact that each class will member to a small only recovery be entitled makes one particularly being action suited for brought as Dist, a class action. Bond v Ann Arbor School 383 (1970). 693; Mich 178 484 NW2d Finally, we note the concern trial which the expressed court no because other members of the class had submitted affidavits and reluctance of the trial court to an render order that required the refund of to assessments GREA who members have not protested the assessments who had voluntarily made TAP payments Fund. These are by concerns met fact a class 208.1(3) brought 1963, action under GCR been has used a permissive joinder device: the basis the foregoing, "On of we concluded that judgment in spurious only class action binds those similarly affirmatively situated who individuals indicate (to in the court their desire to be included in’). 'opt protection rights This insures maximum of the they in the absent class members where cases 5 attorney See infra for the effect that an fees award reasonable might on have this sum. App 742
754 op Opinion the Court not in involved are which need it most—cases common but several and distinct in nature and members is a only between the which the connection Grigg, supra, or 174. question of law fact.” common be as a litigation this would conducted Since the fact that permissive joinder parties, form to keep want to allow GREA some members significant. is not share assessment opt who into Only affirmatively those members And, by this it. as stated action shall bound Treasurer, 71 County v Wayne Adams Court (1976), 285; 248 232 "merely Mich NW2d other members of the class have failed because present disqualify is no reason to intervene representatives”. as class plaintiffs named attorney fees not exception, an Absent statute authorized expressly awardable unless Ins Farm Mutual Automobile State rule. or court (1973). Allen, Co v App 71; NW2d attorney court’s decision not award trial finding its the "common fees based on was in that exception applicable was fund” sought has the forced accumulation prevent having sought protect pool rather than assets *11 we have held that depletion. from Since assets illegal and that a mandatory assessments were an appropriate, is award refund of assessments from TAP Fund is attorney fees reasonable Bond, supra, Supreme Court permissible. In very closely fees awarded in a situation attorney Court resembling Supreme one. present stated: of the fees requiring refund reasons "One paid from can be provide
in a reasonable a fund which this case plaintiffs. attorneys for attorney fee to the Male v Grand Ed Ass’n op Opinion the Court "We are not unmindful of the fact that the fees which were exacted were used defendant or of the Nevertheless, relative smallness of each fee. where the lawsuit, parties here, in arrayed in which both undoubtedly sides conceive proceeding themselves be interest, public in the some balance must be struck so prevailing compelled the side is not to bear the burdensome costs of achieving a favorable decision.” Bond, supra, 704-705.
In Grigg, supra, Supreme recognized Court the trial court allow may or dismiss the class portion of a suit depending upon the number class opt members who in and that this will affect the award of fees. attorney
"The in requested the case at bar only has an award of 'reasonable’ attorney fees. Reasonableness depend of the fees primarily upon would the amount of attorneys spent time the upon on the case and nature and extent of the upon benefit conferred intervening fee, costs, plus members. Such a would payable be proceeds from the judgment prior computation Grigg, for distribution.” supra, 192.
Accordingly, we remand to the trial court with the following instructions:
1) The court shall set a period reasonable time within which class members must opt order be class; included in the
2) The court its discretion order plaintiff, expense, at his issue such notice as the direct; court may
3) whether, The court shall determine according principles equity, should awarded reasonable fees. attorney
Mackenzie, J., concurred. *12 98 by Danhof, C. J. in Part dissenting part, (concurring in in
Danhof, C.J., part). the lead of the has followed The majority concluding that the trial court complaint and unions the defendant the TAP fund maintained my col- Reasoning premise, from this "illegal”. is to declare that trial court have the leagues joined unit may bargaining GREA’s no member of fund and have to the to contribute "compelled” plain- that holding trial court reversed the on behalf all class action maintain tiff opinion apparently unit members. TAP assess- must refund the unions holds that in” to "opts who teacher any ments to finding that made a has majority action. purpose solely maintained TAP fund is districts school against strikes mounting economic proposition factual utilized that and has unions’ TAP condemnation of a broad basis of a product is the that this I believe activities. regard posture oversight with fundamental and thus judgment, the case has come in which colleagues. my join cannot court on in the lower decided This case was brought pur- judgment summary motions for cross 117.2(3). upon The record to GCR suant comprised is were decided those motions which admissions, affidavits, answers pleadings, facts. stipulation interrogatories, insisted has litigation, Throughout fund”, for the held TAP fund is a "strike weather helping teachers purpose of sole stead- equal strikes. With participation fastness, maintained the unions have one of striking only teachers operating its designated purposes fund’s applica- permissible contemplate several guidelines teach- support of the financial tions, notably most Rapids Ed Male Ass’n v Grand by Danhof, C.J. *13 in Part Concurrence by by other lockouts or strikes who are idled ers parties shaped employees. their have so school litigation purpose of TAP and that the destination major them. contested issue between is the dollars suggests strongly the unions’ literature However nothing Program Assistance the Teachers that unrelenting fund, unions’ a strike the than more improper to true makes that this is denial litigation stage that of the conclude at this plaintiffs By uncriti is correct. characterization treating cally TAP fund as a "strike fund” majority in effect resolved the trial court have significant they to be a factual which believe proceeding summary judgment dispute de in a signed merely such a dis determine whether pute Kretschmer, 363; 389 Mich See Rizzo v exists. (1973), Co, 382 v W T Grant 316 Bilicki 207 NW2d (1969). I that a 319; 30 believe Mich proper 170 NW2d plaintiffs motion for of the consideration accept summary judgment un as true the must money TAP has been that while ions’ assertions support striking spent avail it is also teachers Recognizing legal purposes. completely able for majority discipline, join I am unable this resolving uncritical the efficient but this case on "illegal”. premise What is TAP fund is appeal exami more detailed demanded this is a rights disputes of the real involved and nation parties, including the defendant those of of unions. easily rights plaintiff The interest and of the rights employment, recognized: He has in his right membership, right union to decline organization support an his from withhold important In the of these is hostile. face which he rights, easy the fact to overlook it is too individual rights expressions con- of the unions are App 742 758 by Danhop, in Part C.J. public employment their members
ferred on
First Amendment. See MCL
act and the
relations
17.455(9), and Thomas v
423.209;
Collins,
MSA
(1945),
516;
315;
"The cause which
Court
to be the
explained by
is
together”
of a
desire for the services
collective
employees’
bargaining,
con-
in "collective
organization
labor
administration,
grievance
adjustment”.
and
tract
The principles that, personal First employees’ conclusion stake, representa- a rights at labor Amendment support of would-be power compel tive’s only by collective justified "free riders” is grievance administration bargaining, contract provide to all required is adjustment services unit. See International bargaining members of its Street, 740; v 367 US 81 S Ct Ass’n of Machinists (1961). A representative’s 1784; 6 L Ed 2d money extracted purposes to other application is an abuse of the unwilling employee an from power exceeds the that rights and employee’s upon repre- bestow properly government may that eco- plainly declares sentative. Our statute legitimate not a incident nomic strikes public in the sector. MCL collective 17.455(2). It that a labor 423.202; MSA follows compel dissenting public organization may organization member of the who is not a employee activity. support proving part what pleading The burden of applied proper is to be assessment mandatory organization rests with the labor uses to enforce the assessment. See Brother- seeking Clerks, Han- Steamship Freight & Railway hood of Allen, dlers, & Station v Express Employees (1963). 1158; L While 113; 83 S Ct 10 Ed 2d 235 US have not admitted unions in the case at bar used to TAP assessment is to be the entire strikes, at- they neither have *16 Rapids Male Ed Ass’n v Grand by Danhof, Concurrence in Part C.J. part tempted to show that some measured is proper applications. In the for context destined proper case, the it is to assume that entire this plaintiff demanded of the is an TAP assessment for the of teacher strikes. I thus exaction agree plaintiff majority may with the that the compelled pay assessment, TAP be join summary judgment them to affirm the would declaring shop provision agency of the bargaining agreement may not collective be used plaintiff’s TAP to enforce the contribution fund. complaint in this action also
The demanded Rapids declaration that no member of Grand "compelled” to make TAP unit sought to recover of the unions contribution and that have been made. The all the contributions generated thus was to be first "common fund” plaintiff’s attorney applied payment of the presented these demands as a fees. request representative proceed as the of a class comprised From of all Grand teachers. majority, has re- trial court or the provided only relief, ceived all of this that a suffi- potential "opt in” cient number of class members money. to the action for restoration It action issue the resolution of the class majority’s that the tangible "illegal” entity treatment of the TAP fund as a the case
most confounds analysis. placement and disables unions’ TAP in an fund has assessments identifiable plaintiff’s resolution of the confron- aided the own However, tation with them. presents this case otherwise nothing more than the unions’ admitted portion intent purposes to use a of their resources illegal. that are Our real concerns designs for it are not that fund and the unions’ 98 by Danhof, C. J. in Part ensue. exist, might action improper they but event, legality expenditure In such an *17 evaluated, perhaps, if the strikers to whom may are in of an given acting is violation assistance contempt against in proceedings injunction, however, agree, I that a disbursing union. cannot its organization’s possession money, labor own apply with more or less settled intent even ends, is an illegal any in the act future significance. independent legal TAP fund is sim- belief that majority’s "illegal” any led it hold that contributor has ply against plaintiff, it and that obtain relief may on noncontributor, a class action may pursue Bridging gap prem- the narrow from behalf of all. is the that member- ise to conclusion observation not, in any in individual’s ship the union does case, activities”. "support strike imply truth, ignores this notion Despite obvious its so opposed union member any fact membership his policies may relinquish unions’ the haven has join and Abood than of the created for dissenters. More 99% are mem- unit union teachers in this bers, have any and the record does show that of the teacher response defected in the creation putative dissenters program. assistance These are defen- continue to unions —which dants not plaintiffs. action
Meaningful
consideration
class
legal
look at
begin
claim must
with a hard
standing
mem-
potential
associational
of the
unions,
prerequi-
bers and the
for the class action
Bank,
Grigg Michigan
set
National
sites
forth
v
(1979), cannot be
148;
Against
those of their members who would dis
dues, however,
sent by withholding
the unions’
power
is not so limited. My brief
research
has
disclosed that unions
assess
dues and make
govern
members,
rules to
and may enforce
those decisions
by suspension
union privileges,
expulsion, and other sanctions. See Barker Paint
*18
ing
Painters, Decorators,
Co v Brotherhood of
and
America,
Paperhangers
of
App
322;
57 US
DC
23
(1927),
den,
631;
F2d 743
cert
276
324;
US
48 S Ct
(1927),
programs. Even such constitution, not may and we tected statute and lack ignore presumed it for of enthusiasm. Grigg allowing litigant criteria One class is that on behalf proceed "[t]he adequately repre class interests [will] than 148, Mich 167. This means more sented”. 405 enthusiasm, that whether competence mere generated by prom or ideology enthusiasm be fund” wait ise of fees from the "common attorney litigation. It clear to me ing at the end of the "spurious” "permissive joinder” even in a or action, representative must class would-be he the issues personal legal have a interest it appears for the litigate seeks to class. "[W]hen not be the plaintiffs will [representative] action, or of their present future beneficiaries v Grigg Robin being abused.” class action device is Co, 712, App 731; 260 son Furniture (1977). to discern what I am unable NW2d from this attack on benefit will befall and their relationship. between the unions I am also to discover a cause membership. unable successfully Male could assert action that Mr. compel it to dues against modify the union to its give to its members. This money schedule or to Court has held "’a accom that which he cannot plish by representation (as) in individual assert a cause action ” Management Stutelberg v Practical litigation.’ den Co, lv 325, 341; 245 NW2d (1976). 398 Mich 804 *19 has is a majority plaintiff also held that he represent,
member
of the class
seeks
Grigg
action
set forth in
prerequisite
related class
Bank,
Michigan
supra.
v
National
If the TAP fund
might
this
"illegal”
persons,
were
all
simply
Male v Grand
Ed
Ass’n
by Danhof,
C.J.
in Part
However,
be true.
in light legal
issues
involved,
plaintiffs
claim to class membership
less
appears
substantial
to me than it does to my
fact,
colleagues.
In
is seeking
repre-
sent
two classes:
comprised
one
of himself
perhaps
teachers,
other nonunion
and the
comprised
other
of all
who,
those teachers
reasons we should not
evaluate,
examine or
con-
tinue to support
the unions with their member-
ship.
seeks to attack an action of the
organizations
that his would-be class members
continue to
If
support.
litigants
any
this action
may be deemed to hold interests
common to the
members,
class of union
is the unions
them-
Reuther,
(ED
selves. See Gray v
The adequate representation and class member- ship concepts grounded in the same fundamen- tal considerations that deny standing to sue to persons who have suffered no at the hands injury Inglis v Public defendants, Employ- School *20 742 98 Mich
766 by Danhof, C. J. Part Board, 54 10; 131 NW2d ees Retirement 374 as a condi (1964), require dispute” an "actual 1963, 521.1, Shav relief, declaratory GCR tion for General, 554; 267 NW2d Attorney ers v (1978). our courts policy of simply It tamper seeking to persons doors to open to no benefit of their own. others’ with by Const cautiously authorized advisory opinion to the 3, exception only art is our state’s § merely are not be decided principle that cases device of class action precedent. for the sake Cf., principle. avoidance must not allow Korzen, v 1; 289 NE2d Garage, Dee-El Inc 53 Ill 2d (1972). "con- attempt plaintiffs I believe he inter- in which has no money demn” sum comprised almost exclu- est on behalf and who do have an interest persons who sively is an to leave it untouched are satisfied apparently I him deny action device. would of the class abuse Litigation of in that adventure. engage leave their unions should rights against the members’ representative is actu- of a who await advent potential plaintiffs. ally within that class summary judgment only I would affirm personal dispute with respect plaintiffs defendants.