Plaintiff brought this action for wrongful discharge against defendant Board of Education of the School District of the City of Detroit (hereinafter referred to as "Board”). She also named Detroit Federation of Teachers, Local 231, as defendants, (hereinafter referred to as "Union”) claiming that the Union had wrongfully refused to process her grievance.
Both defendants responded to the complaint by denying the essential allegations contained therein except to agree that the plaintiffs grievance was without merit.
Both defendants then moved for accelerаted and summary judgment of dismissal for the reasons that (1) plaintiff had failed to state a claim upon which relief could be granted; (2) there was no material dispute of fact and the defendants were entitled to judgment as a matter of law; (3) plaintiffs exclusive remedy was the grievance procedure contained in the collective bargaining agreement; and (4) plaintiff had failed to utilizе and exhaust her internal union remedies.
Following the submission of briefs and after hearing oral argument, Wayne County Circuit Court Judge Thomas J. Foley entered an opinion on August 31, 1976 which granted both defendants’ motions for summary and accelerated judgment and dismissed the plaintiffs complaint for all the reasons set forth by the defendants in their motions.
Plaintiff appeals as of right.
The trial court granted summary judgment based on GCR 1963, 117.2(1), the failure to state a
*743
claim upon which relief can be granted. The standard for review of summary judgment based on that rule is well established. A motion based on sub-section (1) challenges the legal sufficiency of plаintiffs claim and is to be examined and considered by the legal sufficiency of the pleadings alone. Every well-pleaded allegation must be accepted as true. The test is whether plаintiffs claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.
Woodworth v Brenner,
Plaintiff Ruth Jean Merdler was a part-time substitute tеacher; in terms of the contract, an "emergency substitute in regular position”, or "ESRP”.
On September 1, 1972, plaintiff was employed by the Board as an ESRP for the ensuing school year to function in a reliеf capacity three days per week at Lynch Elementary School. The plaintiff served as a relief teacher for tenured and probationary teachers making use of the onе hour of preparation time allowed them each day. On March 12, 1973, the plaintiff received the following notice terminating her services:
"March 12, 1973
"Dear Mrs. Merdler,
"Because of the situation which has occurred, and because the relationships among the teachers are deteriorating rapidly as a result, I feel it would be better if you worked in a different school setting after Wednesday, March 14, 1973.
"Thеrefore, this letter is the required two day notice of termination which is called for by the Personnel rules.
*744 "Thank you for your service to our school this year.
"Sincerely yours,
"Dorothy Irwin
"Principal.”
The collective bargaining agreement Article XII, § G provides, in pertinent part:
"Contract teachers shall receive at least a week’s notice before they are transferred from one regular assignment to another regular assignment unless such transfer is at the teacher’s own request. ESRP’s shall be given at least two days’ notice before an assignment is closed out * * * .’’(Emphasis added.)
The parties to the contract agree that this language refers to the ássignment of the teacher, rather than the job to which that teacher may be assigned. This interpretation is entitled to great weight.
Barrett v Safeway Stores, Inc,
538 F2d 1311 (CA 8, 1976),
Pekar v Local 181, Brewery Workers, AFL-CIO,
311 F2d 628, 636 (CA 6, 1962),
cert den,
In
Detroit Federation of Teachers v Detroit Board of Education,
"The rights and benefits accorded teachers in each category vary.
"An ESRP’s assignment may be 'closed out’ upon two days’ notice. Master Agreemеnt, Art XII, § G. Under the teachers’ tenure act, a probationary teacher is entitled to be 'notified in writing at least 60 days before the close of the school year that his. services will be discontinued’. MCLA 38.83; MSA 15.1983. 'Generally, probationary teachers with less than two years’ seniority will not be transferred.’ Art XII, § G. There is no *745 similar limitation on the discretion of the board .to transfer ESRPs.”396 Mich at 225, n 6 .
The statement of facts in Justice Williams’ opinion noted:
"As a result, many full-time teachers for the 1972-73 academic year were labeled ESRPs, were denied a written contract, and were subject to termination on 48 hours notice. In contrast, probationary teachers had in the past received a written contract which by its terms required sixty days notice before termination.” (Emphasis added; footnote omitted.)396 Mich at 230 .
There is no dispute that plaintiff received two days’ notice before she was discharged. Therefore, the plaintiffs claim that she was wrongfully dismissed must be rejected. In the absence of a contractual provision to the contrary, an employer can discharge an employee at will and without cause.
Carry v Consumers Power Co,
Why defendant Union entered into this contract is not for us to decide 1 and plaintiff as a member of defendant Uniоn worked under this contract of employment.
Defendant Union in its answer to plaintiff’s complaint and in its motion supra stated that while it would prefer to agree with the interpretation of plaintiff, that is simply nоt what the parties bargained for and it is obliged to abide by its agreement.
The complaint against the defendant Union contains the following allegations:
"8. That said Local failed, refused and neglected to *746 take any steps or make any effort to process such grievance on behalf of plaintiff and aid her in obtaining reinstatement and other relief which might be due to her.
"11. That the acts herein referred to were performed by аll of the defendants without just cause or provocation and were done with malicious intent to bring about termination of plaintiff’s employment to her damage as aforesaid. That plaintiff, since the unlawful termination of her employment, has made repeated efforts to obtain employment in a like or kindred capacity but has not been successful in doing so due to the manner in which she was discharged and to the disparagement of her professional integrity caused thereby.”
The pleadings in the present case were framed in conclusional language. No fаcts were pleaded. Therefore, the complaint was insufficient. Plaintiffs citation to
Handwerk v United Steelworkers of America,
In order to properly plead such a breach of duty, the law requires that the complaint must factually allege misconduct. The Court in Carry v Consumers Power Co, supra at 298, concluded:
" '[T]he allegations of a complaint alleging a breach of a union’s duty of fair representation must contain mоre than conclusory statements alleging improper representation; conclusory allegations without specifying supporting facts to show the union’s lack of good faith fail to statе a valid claim. Balowski v International U, United A A & A Imp Wkrs, 372 F2d 829, 835 (CA 6, 1967), Hardcastle v Western Greyhound Lines, 303 F2d 182, 186 (CA 9, 1962), cert den371 US 920 ;83 S Ct 288 ;9 L Ed 2d 229 (1962), Brown v Truck Drivers & Help Loc U No 395, Baltimore, Md,264 F Supp 776 (D Md, 1967). Here, plaintiffs complained of an illegal combina *747 tion between Union and Company in language which was purely conclusory, with no specific factual allegations to support the charges. Since such allegations are insufficient to state a claim of improper representation by the Union or collusion between Union and Company, the lower court could have properly dismissed plaintiffs’ complaint for failure to state a claim.’ Lusk v Eastern Products Corp, 427 F2d 705, 708 (CA 4, 1970).”
See also
Sheremet v Chrysler Corp,
Plaintiff also claims that exhaustion of the grievance procedure is not required because she was frustrated by acts of thе two defendants. Plaintiff, by her own statement, acknowledges that the grievance procedures as set forth in the collective bargaining agreement have not been exhausted. Plaintiff, by that admission, defeats her own claim. It is well established in Michigan that until internal union remedies have been exhausted, there is no access to the courts for disputes involving contractual rights.
In
Knox v Local 900 UAW-CIO,
" 'When he [plаintiff] has exhausted these remedies without avail as he must under the many decisions of the Michigan Supreme Court, he may then seek redress in the courts ***.’”361 Mich at 260 . (Emphasis *748 supplied.) See also, Martin v Favell,344 Mich 215 ;73 NW2d 856 (1955).
Plaintiff cites the language of the master agreement which provides that "[t]he grievance procedures * * * shall be supplementary or cumulative to, rather than exclusive of, any procedures or remedies afforded to any teacher by law”, Art XXI, § F, p 52, in opposition to the trial court’s finding that failure to exhaust internal union remedies precludes relief for her. However, the defendants correctly point out that this language applies only to statutоry or constitutional rights rather than contractual rights.
Cortez v Ford Motor Co, supra, is dispositive. There, three women brought an action for an alleged violation of a labor agreement in their own right and on behalf of 105 women who had been laid off. The plaintiffs also sued their union for failure to process the grievances. The labor contract contained a grievance procedure. The Supremе Court upheld the trial court’s grant of summary judgment for defendants, refusing to intervene in the grievance proceedings until those remedies were exhausted.
In this case, plaintiff’s rights as an ESRP were derived through the labor contract. This contract provided for a grievance procedure. Thus, the trial court was correct as to its finding on exhaustion of remedies. As an exclusively contraсtual right was involved, the plaintiff was required to exhaust her grievance procedures before seeking judicial aid. Thus, as plaintiff has failed to state a claim on which relief can be granted and as plaintiff failed to exhaust pre-judicial remedies, the trial court’s grant of summary relief to defendants manifestly does not constitute an abuse of discretion.
Finding no abuse, we affirm.
Affirmed.
Notes
On oral argument, the Union’s counsel stated that the provision had been modified by subsequent agreements with the Board.