*1 Bd Ed White Cloud 1980] WHITE ASSOCIATIONv WHITE CLOUD CLOUD EDUCATION BOARD OF EDUCATION 45898, 1980, 2, April Lansing. at Docket Nos. Submitted 46178. 4, Decided November 1980. brought Newaygo Education Association suit seeking compel Circuit Court Board of Education of the discharge Jibson, White Cloud Public Schools to William teacher, for tenured failure either to become a member of the or, alternative, Association equivalent required by to the dues Association’s as the collec- bargaining agreement tive between the Association and the court, employment. a condition of continued The trial Thomas, J., granted summary R. judgment Terrence for the appeal. Association Board and Jibson Held: act, Michigan 1. The teacher tenure which states that a discharged only just teacher tenured reasonable notice, only charges, hearing cause and after such and determi- occurred, superseded by nation thereof have has been public employment (PERA), act relations which authorizes the collection fees from members of a nonunion Thus, bargaining group. provisions collective the teacher applicable dispute. are not tenure act to the instant hearing nonpayment 2. hold Failure the Board to on the prior terminating employment of the fees Jibson’s did not constitute reversible error because Jibson admitted he had refused to the fees. denying request 3. trial court did not err in Jibson’s [1, [8] [4-6] [2] [7] 48A Am Jur Union Union 3, 48A Am Jur 48A Am Jur 66 Am Jur 1102. 1142. 48 Am Jur 48 Am security agreements organization 2d, Jur 2d, References 2d, 2d, 2d, Restitution and Labor and 2d, Labor and Labor Labor Labor and Labor Relations and activities of and Labor Relations 1764. and Labor Relations 48.§ for Points in Headnotes Labor Labor state Implied Relations Relations public employment. public employees. Contracts §§ § § § 1765. 1765. §§ 1190. 24. 3 ALR2d ALR3d pending disputed placed a determina- in escrow have the applicable to tion the amount contract administration. Affirmed. *2 Kelly, J., clarify in J. but wrote to the M. concurred making payment provision the of an contract absence of a employment, agency or where a union does condition of fee a hearing, procedure there is a want initiate a dismissal to possible civil for the union to institute a suit under it is which quantum recovery meruit nonpaying against a teacher provided. for services
Opinion the of Court Employment — — Relations Act Public 1. Labor Relations —Act Statutes. Teachers’ Tenure public employment provision act which the relations The of supersedes payment agency shop fees both the the authorizes protections procedural embodied in teach- and substantive (MCL 423.210; seq., et MSA 15.1971 et tenure act 38.71 ers’ seq., 17.455[10]). Shop Validity Agency — —Fees 2. and Enforce- Labor Relations ability. provides bargaining agreement for the collective which dis- A charge employee any a who refuses to become member or, alternative, agency shop pay is to fees valid union and enforceable. Employment — —
3. Labor Rela- Due Process Public Relations Agency Shop Nonpayment — — — Fees Act Clause tions Notice. act, agency shop public employment relations clause of the process, requires satisfy procedural nonpay- to due that a order ing given employee nonpayment notice of of fees pretermination hearing wherein the sole issue is whether the employee paid there fees unless is recalcitrant payment nonpay- dispute to or no factual be resolved to ment the fees. Employees — — — 4. Law Labor Relations Public Constitutional Agency Shop Fees. rights public guarantee that Fundamental First Amendment employees compelled to fees cannot be which support ideological to will be to unrelated collec- used activities bargaining. tive Bd of Ed Declaratory — Judg- — 5. Constitutional Law Labor Relations Agency Shop — — ments Fees Court Rules. public employee subject provision A to the of the public employment required relations act can be disputed agency shop fee to his exclusive collective representative pending portion a determination of what of the bargaining, fee is used for collective contract administration grievance adjustment the First because Amendment employee compelled pay agency shop not to be support ideological which will be used to activities unrelated to bargaining, employee objects, and to which the can be adequately safeguarded disputed if the fee is to the bar- gaining representative employee immediately suit files declaratory judgment portion for a to determine what of the fee employee compelled pay; procedure can be this allows rights to vindicate his constitutional while at the allowing portion same time the union access of the fee bargaining, which will be used for collective contract adminis- (GCR 521). grievance adjustment tration and Agency Shop Proportion — — 6. Labor Relations Fees of Fees Bargaining — — *3 Used For Collective Burden of Proof Court Rules. bargaining representative, declaratory judgment
A collective in a proportion agency shop action to determine what anof fee is ideological dedicated to activities unrelated to collective bar- gaining, establishing proportion has the burden of because possesses proportion it the facts and records from which such (GCR 521). 1963, can be determined by Kelly,
Concurrence M. J. J. Employees — — — 7. Labor Relations Unions Nonunion Election — of Remedies Meruit. Quantum against nonpaying employee quantum A civil action for a recovery brought meruit for services rendered provision making union where there is an absence of a contract employment an fee a condition of or where bargaining collective unit does not want to initiate a dismissal hearing. Bargaining — — 8. Labor Relations Collective Em- Nonunion ployees Legislative — Intent. Legislature has manifested a clear intent to eliminate "free receiving acquired bargain- riders” from beneñts in collective Opinion op Court help pay persons ing; do not are those who "free riders" support. cost of union Foster, Swift, James A. Coey, Collins & P.C. (by Schmedlen), J. for the and Michael White Association. Cloud Education Hof, Howlett, Snell & Vana Schmidt, Van’t (by Paul), Cloud Board of H. Edward for the White Education. Massie, Timmer,
Allaben, Weyden & Vander LaJeunesse, Jr., Raymond J. and Bruce N. and Cameron, for William Jibson. Kelly Bashara, P.J., M. J. and D. R.
Before: Freeman,* JJ. Freeman, J. as of appeal
D. R. Defendants granting summary the trial order from court’s June which plaintiff on judgment defendant Board of Education dis- provided that for failure to charge intervenor-defendant Jibson shop provided fee for in mandatory agency pay bargaining agreement between the the collective parties. entered into a plaintiff
Defendant 1977-1978 for the requiring and 1978-1979 school teachers years, become the union or members union dues a condition of equivalent intervenor-defen- employment. continued When teacher, Jibson, dant a tenured refused become fee, a member of union or *4 the union the Board to a tenure hear- asked hold upon ing dicharge Michigan and him. Based the ("TTA”), PA 216 as teachers’ tenure act sitting Appeals assignment. judge, on of * Circuit the Court op Ed Bdv Ass’n Opinion of the Court amended, MCL et seq.; 38.71 MSA 15.1971 seq., et the refused to honor the request. union’s The union brought this suit demanding that in- tervenor-defendant Jibson discharged be for failure to pay fee.
The critical issue in this case involves a conflict TTA, between and public employment ("PERA”), relations act amended, 1947 PA 17.455(1) seq.; MCL 423.201 et MSA et seq. MCL 38.101; MSA 15.2001 provides that of a discharge tenured teacher "may only made for reasonable cause, and just only notice, after charges, such hearing, thereof, and determination as are herein- after provided”. argues Jibson that nonpayment an agency shop fee is not "reasonable and just for teacher, cause” of a discharge tenured and that protected he is thus from discharge failing the fee. In conflict with Jibson’s argument is section 10 PERA, which provides as follows: further, "Provided nothing any this act inor [t]hat preclude law of this public state shall employer from making bargaining with an exclusive representative as defined in section [eleven] [footnote require as a of employment condition omitted] all employees bargaining unit exclu- sive representative equivalent a service fee required to the amount of uniformly dues of members representative.” exclusive bargaining MCL 17.455(10)(l)(c). 423.210(l)(c); MSA Section 10 provides further that: the purpose amendatory "It is of this act to reaffirm continuing public policy the ity state stabil- public this that the effectiveness labor relations in the require, requirement negotiated sector if such is with public employer, bargain- employees all in the *5 101 309 314 Mich Opinion the of Court support in financial fairly the ing shall share unit paying to bargaining representative by their exclusive fee representative service bargaining the exclusive uni- the of dues amount equivalent which formly of the exclusive required of members 17.455(10X2). 423.210(2);MSA representative.” MCL 25, PA 1973 by so amended section was This Supreme Court’s decision Michigan following the Dist, School 388 Southgate Community Smigel v (1972), that 531, 543; 202 305 NW2d Mich as a condition of shop requiring provision agency the employees join either that all employment equivalent the dues or union to the provi- on its face repugnant shop was Supreme Court The United States sions of PERA. the of union clauses upheld validity has since Abood v Detroit sector. public employment in the 1782; Education, 209; 97 S 52 431 US Ct Board of 261 L Ed 2d School Dist Board of
In v Crestwood Rockwell Education, 629-630; 227 736 Mich NW2d 393 Court as (1975), Michigan Supreme the stated PERA and regard with to conflicts between follows the TTA: PERA consistently the "This Court has construed public regulating employee labor dominant law Detroit, v 391 In Police Officers Ass’n relations. Detroit (1974), 44; residency 214 803 we held that Mich and retirement lective of NW2d mandatory subjects of col- are benefits PERA, although provisions bargaining under the charter, promulgated under city’s ordinance and Earlier, act, govern. the home rule would otherwise Employment v Regents University Michigan of the (1973), Comm, 204 NW2d
Relations authority of Court 'harmonized’ the constitutional this the ity public university and the author- Regents supervise Legislature provide resolution disputes, interns and holding Ed Bd of Opinion of the Court University Michigan Hospital in the residents entitled to were engage bargaining. In Wayne County Mich Supervisors, Service Comm v Board of Civil (1971), 374; 184 this Court held original authority duty Wayne County pro Civil Service Commission 'was diminished PERA extent tanto’ 'to the of free administra- tion of latter’. *6 analysis is the same whether we this
"The label repeal expression by implication, reconciliation or harmonizing. pro diminishing supremacy or The tanto predicated PERA provisions of the Constitution ent of the is on the (Const 48) appar- art sec governing legislative intent that the PERA be the public employee law for labor relations. intended,
"The teachers’ tenure act was not either in contemplation design, disputes or to labor cover be- employees. boards and their The 1937 tween school Legislature enacting the teachers’ tenure act could anticipated bargaining or not have collective meant to disputes provide for the resolution of labor relations public employment. Wayne Court’s observation in This Comm, supra, pertinent: 'In County Civil Service is [no] bargaining by public employ- could collective instance people, ees have been in the minds of the or of the (1937] legislators. thought by public The of strikes employees was unheard of. The of collective bar- gaining, applicable private employment, at the time to comparative portended infancy was then in suggestion and no eventually might it that enter the realm of Court.)” (Foot- public employment.’ (Emphasis by the omitted.) *7 hearing to hold a did not constitute Board’s failure reversible error: always does now and agency
"The clause itself fees and required nonpayment notice of of the has notice, including of the such notice Parks received point- discharge It would be possibility of result. less, however, now hold a require that hearing already appealed her dis- for Parks. She has charge review its to the Tenure Commission and we Furthermore, an affida- she has submitted decision now. stating paid agency shop fees since vit that she has not 'under year 1973-74 and that she the fees that is, therefore, dispute no factual to be protest’. There hearing that it is not neces- resolved at a and we hold sary to hold one.” Bd Ed op Opinion the Court provisions
We find that of the TTA are not to the instant applicable dispute. We also find that Jibson’s admitted requi- refusal to pay site fees agency shop precludes the need to hold a to determine hearing the fact of There- payment. fore, the lower court did not err ordering sum- mary judgment plaintiff’s favor.
Jibson also
aspect
contests
that
of the lower
court’s decision refusing
request
his
to have the
disputed
placed
fees
in escrow pending a determi-
applicable
nation of the amount
to collective bar-
gaining and contract administration. Abood v De-
Education,
troit Board of
In
supra.
pertinent part,
the circuit court’s order provides:
adjudged],
is further ordered and
if the
"I[t
pays
$231.20,
Intervenor
to the Plaintiff the amount of
sought by
which is
appropriate
Plaintiff as the
fee,
will,
amount of the
then this Court
Intervenor,
upon request by
appro-
determine the
priate
pursuant
amount of the
Education,
(1977),
Abood v Detroit Board of
Pursuant to the Abood public employ- ees compelled pay agency shop which will be used to support ideological activities Thus, unrelated bargaining. Jibson has the to challenge portion shop fee support ideologi- which is used to also, cal activities to which he See Ball v objects. Detroit, Mich
After granted plaintiff’s the circuit court motion for summary judgment, the Board filed a motion for a new trial and amendment of the judgment *8 and Jibson moved to intervene as a defendant. The App 309 Mich op Opinion the Court intervene motion to Jibson’s granted court if first trial Jibson a new grant to agreed was denied The motion the union. fee to contested union, the fee to to pay refused Jibson when account it into an escrow instead offering court’s determination the circuit pending activities ideological not used thereof amount support. choose did not Jibson Detroit, In Ball v as follows with (1978), Court stated this in cases such accounts of escrow to the use
regard as this: Michigan Court the the, Supreme Court concluded "The injunctive denying 'broad
Appeals was correct Abood, (emphasis sup- supra, at 241 requested.’ relief allowing agree plaintiffs with plied). However we prior judicial to a determina- of funds union the use the tion the risk that their fees subjects nonmembers which used, temporarily, for activities to even may be they are Amend- fundamental First opposed. Because stake, proper solution rights we believe are at ment is to escrow fees into service require nonmembers recognize this works some- account. While we temporarily it union because hardship on the what of a portion of service to collect even will be unable to which it is the violated. outweighed by rights entitled, hardship is will Amendment possibility that First account is Establishing temporary escrow in Abood. prohibited injunctive relief not Rather nonmembers broad ensure designed to temporary it is a measure face dismissal pay their service fees or to the prompt have access the union will to ensure determina- judicial funds to tion. refunded it is entitled after which shall be in the escrow account Whatever remains objecting to the nonmembers.” paramount accords clearly in Ball ruling Our rights First Amendment employee’s status to the of the fee portion to that the union’s vis-á-vis *9 Bd of Ed 319 White Cloud Opinion of the Court bargaining, used for collective con- which will be grievance adjustment. tract administration to that we principle, While we continue to adhere First Amendment employee’s now believe if safeguarded can be the dis- rights adequately to employee fee is the union puted files suit for immediately declaratory judgment 1963, 521. That provides under GCR court rule for rights legal declaration of "the and other judicial * * * relations of interested and autho- part[ies]” rizes the circuit court to "order a speedy hearing declaratory of an action for relief’ and to "ad- hearing] vance on the calendar”. In this [such manner, employee while the can move for quickly a resolution of the issue and a vindication of his rights, crippled constitutional the union is not by portion nonaccess to that of the fee which will be bargaining, used for collective contract administra- In grievance adjustment. tion and the context of such an action for the union declaratory judgment establishing propor- shall have the burden of tion of the fee which is dedicated to to object. uses which the does Rail- Allen, 1158, 122; Clerks v 373 US 83 S Ct way L 1163; 10 Ed 2d The union possesses the facts and records from which such proportion only can be determined and it is fair imposed party the burden be on the who has access to that information. granting summary
The circuit court decision plaintiff directing to the defendant judgment failure discharge Board of Education to Jibson for fees is affirmed. Should Jibson pay agency shop entrance of a prior decide to the fees to the Board, he discharge formal order by for the initiate an action for declaratory judgment purpose opinion. noted in this App M.J. J. Kelly, Concurrence Affirmed.
Bashara, P.J., concurred. Kelly, (concurring).
M. I J. J. concur majority’s opinion, separately but write an at- tempt procedures to be clarify followed subject when teacher stipulated refuses to fee. majority’s remedy reference of dis- Detroit
missal established nonpayment, Parks, Board of v Education 98 Mich App *10 (1980), 815 addresses the situation of a only refusal a bargaining agree- under ment as a condition of requiring payment employ- 17.455(10X1). 423.210(1); ment. MCL MSA How- ever, in the of a provision making absence contract (or the fee a condition of employment where the union does not want to initiate a dismissal hear- available, a ing) remedy although second is exactly ravishing. pursue
The union could recovery in a civil ac- brought against tion teacher. It nonpaying has been held that a statute a provides benefi- "[w]hen right securance, cial but no civil for its remedy common law on its own hook a provides remedy”. Monahan, See B F Farnell Co v 555; Ash, also Cort v NW2d 58 See US 66; 95 (1975), S Ct 45 L Ed 2d cases cited therein for a discussion of the four factors to be in determining considered whether a private remedy may apply to a statute not ex- pressly providing one. The Legislature has mani- fested a clear intent to eliminate "free riders” receiving from acquired benefits in collective bar- gaining, bearing without sup- costs union 17.455(10). port. MCL 423.210; MSA The conse- quent requirement that a nonunion employee be Bd White Cloud v of Ed Ass’n Kelly, Concurrence M. J. J. payment
liable in a civil action for merely recognizes the unions’ recovery quantum provided. meruit for services supra, Parks, See Detroit Education v fn Michigan University also, 15. See Central v U X (Docket August No. released 1977 [un 77-1040, reported]), petitioner’s application a on decision appeal, option recognizing leave to of a civil recovery. Thus, suit for a has union choice against refusing remedies nonmember notify fee. The union could the board pay of education that a nonmember has refused requiring ment, thus the board initiate a dis hearing. missal The union could also institute a directly suit to recover the fees from the teacher refusing payment. Should a collective require payment making obligation without a condition of em ployment, pursue private the union still its remedy to recover fee. notes decision, In a more recent this Court concluded provision authorizing the PERA fees superseded proce- both the substantive embodied in the TTA. Detroit protections dural Parks, Board of Education v App 22; 98 Mich 296 The Parks Court that a found for dis- agreement providing a was valid and charge nonpaying employee Opinion of the Court of rea- TTA enforceable, requirement despite The Court cause terminate. just sonable held: also PERA, specifically which 6 of the section "Unlike proce- but also only the substantive superseded not regard to Act with of the Tenure requirements dural striking, section dismissed for teachers who are as a condition allows an provide procedures for dis- employment but does the PERA legislative intent light In of the missal. sector, public in the field of labor relations occupy the proce- however, inappropriate to follow it would be omitted.) (Footnote in the Tenure Act.” dures set forth the Parks Court inapplicable Although rejected TTA, it still found hearing requirements satisfy pro- hearing necessary pretermination issue at such a process. due sole cedural the recalcitrant hearing is to be whether fee. The Court found that hearing provide prior Parks with Board failed However, setting in a factual simi- termination. the Parks case, Court found the lar to the instant