Board of Educ. of School Dist. for City of Detroit v. Parks
| Decision Date | 27 June 1983 |
| Docket Number | Docket Nos. 65818-65821,P,No. 6,AFL-CI,6 |
| Parties | BOARD OF EDUCATION OF the SCHOOL DISTRICT FOR the CITY OF DETROIT and Detroit Federation of Teachers, Local 231, AFT,etitioners-Appellees, v. Anne B. PARKS, Respondent-Appellant. D. Louis ABOOD, et al., Plaintiffs-Appellants, v. DETROIT BOARD OF EDUCATION, et al., Defendants-Appellees. Christine WARCZAK, et al., Plaintiffs-Appellants, v. DETROIT BOARD OF EDUCATION, et al., Defendants-Appellees. Alberta M. KYES, et al., Plaintiffs-Appellants, v. DETROIT BOARD OF EDUCATION, et al., Defendants-Appellees. Calendar417 Mich. 268, 335 N.W.2d 641, 114 L.R.R.M. (BNA) 3269, 12 Ed. Law Rep. 516 |
| Court | Michigan Supreme Court |
Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C., Theodore Sachs, Mary Ellen Gurewitz, Detroit, for defendants-appellees.
Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, P.C. by David E. Kempner, Detroit, for appellants.
These consolidated cases present the same legal issues. Appellants contend that a tenured teacher cannot be discharged for failing to pay agency service fees to an authorized bargaining representative. Alternatively, they contend, if discharge is permissible, resort must be had to the substantive and procedural provisions of the teacher tenure act, M.C.L. Sec. 38.71 et seq.; M.S.A. Sec. 15.1971 et seq. We disagree.
We find it best, as did the Court of Appeals, to consider this case in the factual setting of Parks. 1 Anne B. Parks had been a teacher in the Detroit Public Schools since 1935. Beginning with the 1969-1971 contract, the Detroit Federation of Teachers, Local 231, AFT, AFL-CIO, the authorized bargaining agent for the teachers, and the Detroit Board of Education included in their contract an agency shop clause. 2 This contract provision required that all non-union teachers pay to the union "agency service fees" in an amount equal to the amount paid as dues by union members. The Detroit Board of Education was required to discharge employees who failed to pay. 3 Although Parks initially paid the fees under protest, after the 1973-1974 contract year she refused further payment. In March of 1978, at the request of the union, the Detroit Board of Education discharged her. Parks appealed to the State Tenure Commission, and the commission ordered her reinstatement on the ground that the procedures of the teacher tenure act were not followed. The Wayne Circuit Court, on appeal by both the Detroit Board of Education and the union, reversed the decision of the commission. The Court of Appeals affirmed the decision of the circuit court. 98 Mich.App. 22, 296 N.W.2d 815 (1980). As relevant to the issues before this Court, the Court of Appeals held that a tenured teacher could be discharged for failing to pay agency service fees under a contract to that effect and that the teacher tenure act was both substantively and procedurally inapplicable. We granted leave to appeal to finally settle those aspects of this controversy. 411 Mich. 970 (1980).
Section 10(1) of the public employment relations act M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq., provides:
"It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9; (b) to initiate, create, dominate, contribute to or interfere with the formation or administration of any labor organization: Provided, That a public employer shall not be prohibited from permitting employees to confer with it during working hours without loss of time or pay; (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization: Provided further, 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; (d) to discriminate against a public employee because he has given testimony or instituted proceedings under this act; or (e) to refuse to bargain collectively with the representatives of its public employees, subject to the provisions of section 11." M.C.L. Sec. 423.210(1); M.S.A. Sec. 17.455(10)(1).
Our first concern is with the meaning of the phrase "condition of employment" in the proviso of Sec. 10(1)(c). Appellants contend that discharge is not a permissible remedy available to the union and the employer when a public employee breaches the condition of employment of paying agency service fees.
In construing PERA, this Court has frequently sought guidance from federal court decisions construing analogous provisions of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. See Rockwell v. Crestwood School Dist. Bd. of Ed., 393 Mich. 616, 636, 227 N.W.2d 736 (1975), app. dis. sub nom. Crestwood Ed. Ass'n v. Bd. of Ed., 427 U.S. 901, 96 S.Ct. 3184, 49 L.Ed.2d 1195 (1976). The present language of PERA, Sec. 10(1)(c), is quite similar to the language presently used in Sec. 8(a)(3) of the NLRA, even though the two sections have quite different histories.
As originally proposed in Congress, Sec. 8(3) of the Wagner Act, 49 Stat. 449, the predecessor to Sec. 8(a)(3) of the present NLRA, merely forbade employers from discriminating against employees in order to encourage or discourage membership in a union. In Congress, the fear was expressed that this language standing alone would forbid the use of union-security agreements. See NLRB v. General Motors Corp., 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963). To allay that fear, the following proviso was added to Sec. 8(3):
"Provided, That nothing in this [act] or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein".
The consistent interpretation of the federal proviso has been that discharge is a permissible remedy for the breach of this contractual condition of employment. See, e.g., Radio Officers' Union of the Commercial Telegraphers Union, AFL v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954); NLRB v. Brotherhood of Teamsters, Local 85, 458 F.2d 222 (CA9, 1972); International Union of Electrical, Radio and Machine Workers, AFL-CIO Frigidaire Local 801 v. NLRB, 113 U.S.App.D.C. 342, 307 F.2d 679 (1962), cert. den., 371 U.S. 936, 83 S.Ct. 307, 9 L.Ed.2d 270 (1962). See, also, Smigel v. Southgate Community School Dist., 388 Mich. 531, 546, 202 N.W.2d 305 (1972). (Opinion of Brennan, J.)
As enacted, PERA, Sec. 10(3), merely prohibited discriminations against employees on the basis of their membership in a union. The fears of Congress for the federal system were realized in Michigan when the lack of a provision authorizing some form of union-security device in Sec. 10(3) led to this Court's decision in Smigel v. Southgate Community School Dist., supra, which struck down agency shop agreements as discriminatory. There, we found an agency shop agreement to be the practical equivalent of membership in a union. In direct response to this Court's decision in Smigel, the Legislature authorized agency shop agreements "to require as a condition of employment that all employees in the bargaining unit pay" agency service fees.
We find it inconceivable that, in adopting the phrase "to require as a condition of employment" from federal law, the Michigan Legislature did not also intend to adopt the construction placed on that language by the federal courts. Even without this authority, we would find it difficult to allow any other interpretation than the obvious--"condition of employment" as used in Sec. 10(1)(c) means that employment may be conditioned on payment of the agency service fees.
Appellants seek to avoid this conclusion by arguing that the phrase "condition of employment" is a term of art which can only be interpreted in light of PERA, Secs. 11 and 15. Section 11 refers to the recognition and responsibility of an exclusive bargaining representative and Sec. 15 refers to the duty of the parties to bargain collectively "with respect to wages, hours, and other terms and conditions of employment * * *."
"Terms and conditions of employment," as used in these sections, it is obvious to us, refers to those things over which a union and an employer must bargain. Detroit Police Officers Ass'n v. Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974). Because breach of these "conditions" need not always result in discharge, appellants contend, neither should a failure to pay the agency dues result in discharge. We agree that discharge is not always a remedy for the violation of a condition of employment, but it is also clear that discharge can be a remedy, if so provided in the contract, as it was in this case. In other words, the remedy for an employee's failure to pay agency fees is a "term and condition of employment" subject to collective bargaining.
Appellants also argue that the availability of remedies less harsh than discharge precludes a finding that discharge is a permissible remedy.
Appellants' argument again misses the point. PERA, Sec. 10(1)(c), is permissive. Of course, nothing forbids the union and employer from agreeing on a less harsh remedy. A union and an employer could agree that agency service fees would be automatically deducted from each employee's pay check by the employer. M.C.L. Sec. 408.477; M.S.A. Sec. 17.277(7) authorizes such deductions without the consent of the employee when "required or expressly permitted * * * by a collective bargaining agreement". The collective-bargaining agreement here, however,...
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