Abood v. Detroit Bd. of Ed., Detroit Federation of Teachers
| Citation | 60 Mich.App. 92,230 N.W.2d 322 |
| Decision Date | 31 March 1975 |
| Docket Number | Docket Nos. 19465,No. 1,19523,1 |
| Parties | , 90 L.R.R.M. (BNA) 2152, 77 Lab.Cas. P 53,738 D. Louis ABOOD et al., Plaintiffs-Appellants, v. DETROIT BOARD OF EDUCATION, DETROIT FEDERATION OF TEACHERS, et al., Defendants-Appellees. Christine WARCZAK et al., Plaintiffs-Appellants, v. DETROIT BOARD OF EDUCATION et al., Defendants-Appellees |
| Court | Court of Appeal of Michigan (US) |
Keller, Thoma, McManus, Toppin & Schwarze, P.C. by Dennis B. DuBay, Detroit, Webster & Kilcullen, Washington, D.C., for plaintiffs-appellants.
Riley & Roumell by George T. Roumell, Jr., Patmon, Young & Kirk by Ligens D. Moore, Detroit, for Bd. Ed.
Marston, Sachs, O'Connell, Nunn & Freid by Theodore Sachs, Detroit, for Fed. Teachers.
Before McGREGOR, P.J., and J. H. GILLIS and QUINN, JJ.
Plaintiffs Christine Warczak and others, all Detroit teachers, filed a complaint for declaratory judgment on November 7, 1969, challenging the constitutional and statutory validity of the agency shop provision in the collective bargaining agreement between the Detroit Board of Education and the Detroit Federation of Teachers. Plaintiffs filed the cause of action on behalf of themselves and all others similarly situated. Named as defendants were the Detroit Board of Education, the Detroit Federation of Teachers and all teachers who are members of the federation.
Defendants moved for summary judgment, which was granted on January 19 1970 by the trial court. Plaintiffs appealed the grant of the summary judgment. The Michigan Supreme Court granted plaintiffs leave to appeal and set aside the summary judgment entered in favor of defendants, based on the decision in Smigel v. Southgate School District, 388 Mich. 531, 202 N.W.2d 305 (1972). The case was remanded to the circuit court 'for further proceedings consonant herewith'.
Thereafter, in the trial court, plaintiffs filed a motion for suspension of dues deduction authorization. The defendants, on the other hand, filed a motion for summary judgment based on the then recent amendment to the public employment relations act authorizing agency shop provisions in collective bargaining agreements between public employers and public employees. M.C.L.A. § 423.210; M.S.A. § 17.455(10).
The trial court granted defendants' motion for summary judgment and denied plaintiffs' motion to suspend dues deductions. In its opinion, the trial court stated that the amendment should be given retroactive effect. Plaintiffs appealed. On March 22, 1974, the Court of Appeals, on its own motion, entered an order consolidating this appeal with another pending appeal, Abood v. Detroit Board of Education.
In the Abood case, the complaint is essentially the same as that filed in the Warczak case, except that the named plaintiffs are more numerous and do not claim to represent any others than themselves. They also allege that they have been threatened with dismissal and are requesting injunctive relief to restrain the enforcement of the agency shop clause. A motion for summary judgment was granted in favor of defendants in that case and plaintiffs appealed.
Should M.C.L.A. § 423.210; M.S.A. § 17.455(10), effective June 14, 1973 and authorizing agency shop provisions in public employment contracts, be given retroactive effect so as to validate the agency shop provision in the contract entered into between the Detroit Federation of Teachers and the Detroit Board of Education?
In the Smigel case, Supra, the Supreme Court of Michigan found that an agency shop provision in a contract between the Southgate Education Association and the Southgate Community School District was prohibited by § 10 of the Public Employment Relations Act (PERA).
Chief Justice T. M. Kavanagh pointed out in his opinion that there was a significant distinction in Michigan's labor law between public and private employees.
'Though M.C.L.A. § 423.16; M.S.A. § 17.454(17) is nearly identical to M.C.L.A. § 423.210; M.S.A. § 17.455(10) in respect to the requirement of employer neutrality, the statute regarding private employment includes one very important provision which is not found in the public employment relations act. M.C.L.A. § 423.14; M.S.A. § 17.454(15) constitutes an authorization of union security clauses whether in the form of 'closed shop,' 'union shop' or 'agency shop'.' 388 Mich. at 539--540, 202 N.W.2d at 306.
Since such an authorization was not included by the Legislature in the PERA, the Supreme Court concluded that the agency shop provision in Smigel was prohibited by the PERA.
This was the state of the law when the Abood and Warczak cases were remanded to the circuit court. Subsequently, however, the Legislature amended the PERA to provide:
'That nothing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative'. M.C.L.A. § 423.210; M.S.A. § 17.455(10).
In the same section, the Legislature gave some indication of its intent in enacting the amendment.
'(2) It is the purpose of this amendatory act to reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require, if such requirement is negotiated with the public employer, that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative by paying to the exclusive bargaining representative a service fee which may be equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative.' M.C.L.A. § 423.210; M.S.A. § 17.455(10).
In ruling that the amendment in question should be given retroactive application, the trial court stated that, by clear and unequivocal words of intent, the Legislature indicated its desire that the amendment be given such retroactive application. We respectfully disagree.
The most often-quoted statement of the law concerning retroactivity is found in Detroit Trust Co. v. Detroit, 269 Mich. 81, 84, 256 N.W. 811, 812--813 (1934):
'We think it is settled as a general rule in this state, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself.
"Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves and in connection with the subject-matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.' Endlich, Interpretation of Statutes, § 271.'
See also, In re Davis' Estate, 330 Mich. 647, 650--651, 48 N.W.2d 151 (1951); Briggs v. Campbell, Wyant & Cannon, 379 Mich. 160, 164--165, 150 N.W.2d 752 (1967); Olkowski v. Aetna Casualty, 53 Mich.App. 497, 503, 220 N.W.2d 97 (1974).
Considering 'the occasion of the enactment' of the amendment, one might conclude that it should be given retroactive effect. However, as noted in Detroit Trust Co., supra, that is only one element. While that element may favor retroactivity, it is still necessary to consider the language of the amendment itself and to determine the Legislature's intention.
The amendment in question states that its purpose is to 'reaffirm the continuing public policy of this state that the stability and effectiveness of labor relations in the public sector require * * * that all employees in the bargaining unit shall share fairly in the financial support of their exclusive bargaining representative'.
The Legislature's use of the word 'reaffirm' seems to indicate that it was their feeling that such was always the policy of this state. However, Smigel held to the contrary. That the Legislature felt that it had always been the public policy of this state to permit agency shop clauses in the public sector, and that it said so in the amendment, is not enough to overcome the presumption favoring prospective application of the amendment.
Therefore, it is our conclusion that the trial court erred in giving retroactive application to the amendment.
Does the agency shop clause violate plaintiffs' First and Fourteenth Amendment rights securing freedom of speech and freedom of association?
In Railway Employes' Department v. Hanson, 351 U.S. 225, 238, 76 S.Ct. 714, 721, 100 L.Ed. 1112, 1134 (1956), the Supreme Court considered the question whether a union shop agreement forces workers into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights.
The Court held that 'the requirement for financial support of the collective bargaining agency by all who receive the benefits of its work * * * does not violate either the First or the Fifth Amendments'. See also Buckley v. American Federation of Television & Radio Artists, 496 F.2d 305, 313 (CA 2, 1974).
However, the Court did not consider whether or not funds collected pursuant to an agency shop clause could constitutionally be used for purposes unrelated to collective bargaining. That issue was not presented in Hanson, but it is squarely before us in the case at bar.
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