Detroit Bd. of Educ. v. Parks

• Decision Date: 03 June 1980
• Docket Number: P,AFL-CI,Docket Nos. 46812,78-3515
• Citation: 296 N.W.2d 815,98 Mich.App. 22
• Parties: , 107 L.R.R.M. (BNA) 2843 DETROIT BOARD OF EDUCATION 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. to 78-3517.
• Court: Court of Appeal of Michigan — District of US

Page 815

296 N.W.2d 815

98 Mich.App. 22, 107 L.R.R.M. (BNA) 2843

DETROIT BOARD OF EDUCATION and Detroit Federation of

Teachers, Local 231, AFT, AFL-CIO, Petitioners-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.

Docket Nos. 46812, 78-3515 to 78-3517.

Court of Appeals of Michigan.

June 3, 1980.

Rehearing Denied Aug. 21, 1980.

Released for Publication Sept. 24, 1980.

[98 Mich.App. 26] David Edward Kempner, Detroit, for respondent-appellant.

Theodore Sachs, Detroit, for petitioners-appellees.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

STATEMENT OF FACTS

PHILIP C. ELLIOTT, Judge.

Respondent-appellant, Anne B. Parks, has been a teacher in the Detroit Public Schools since 1935. She is not a member of the designated bargaining agent for the teachers, the Detroit Federation of Teachers, Local 231, AFT, AFL-CIO (The DFT). ¹ Beginning with the contract negotiated between appellees herein, the DFT and the Detroit Board of Education (the Board) for the years from 1969-1971, and "agency shop clause" was included in the agreement requiring nonmembers of the Union to pay service fees equal to the dues paid by union members. ² Parks paid this service fee, under protest, for the year 1973-1974, but has since refused to pay. In March of 1978 she was discharged from her position by the Board at the request of the DFT. She appealed her discharge to the State Tenure Commission, contending that the provisions of the Michigan Teachers' Tenure Act, M.C.L. § 38.71 et seq.; M.S.A. § 15.1971 et seq., prohibit the discharge of a tenured teacher merely for noncompliance with an agency shop clause ("reasonable and just cause" is the standard, see section II, infra); and that, in any event, she should not have been discharged without compliance with the notice and hearing procedures established by the Act. ³ In May of 1979, the Tenure Commission ruled that Parks should be reinstated with back pay because of the Board's failure to follow those procedures. ⁴ The Board and the DFT appealed the Commission's decision to the Wayne County Circuit Court, which reversed the Commission by a summary judgment entered August 3, 1979. ⁵ Parks now appeals that reversal to this court. Several issues are raised for our consideration. We state them at the outset with our conclusions on each.

1. Whether the 1973 and/or the 1978 summary judgments issued in Abood are res judicata in Parks as to the applicability, procedurally and substantively, of the Tenure Act to discharge of a teacher for noncompliance with an agency shop clause.

We conclude that they are not.

2. Whether a tenured teacher may be discharged for failure to pay agency shop fees regardless of the "reasonable and just cause" requirement and/or other procedural protections of the Teacher Tenure Act.

We hold that discharge of a teacher for noncompliance with an agency shop clause is permissible, without regard to the Tenure Act.

3. Whether a teacher may be discharged for failure to pay agency shop fees without a hearing, and whether such hearing, if any, should be before or after discharge.

We hold that procedural due process requires notice and an opportunity to be heard before a tenured teacher may be dismissed under an agency shop clause.

4. Whether Parks was entitled to reinstatement, either with or without back pay.

We hold that neither reinstatement nor back pay are required in this case.

I Should The 1973 and/or 1978 Summary Judgments In Abood Have Res Judicata Effect In Parks?

"The first essential of the rule of res judicata is the identity of the matter in issue. The 'matter in issue' is defined to be 'that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings'." McCormick v. Hartman, 306 Mich. 346, 351, 10 N.W.2d 910 (1943), quoting LeRoy v. Collins, 165 Mich. 380, 381, 130 N.W. 635 (1911).

The complaints filed in Warczak, Kyes and Abood all alleged generally that the agency shop clause entered into by the Board and the DFT was "contrary to" the Michigan Tenure Act, among other statutes, and the answers filed by defendants denied that allegation without further explanation. The lower court records do not reveal that any specific findings were made by the court with regard to the applicability of the "reasonable and just cause" requirement or the dismissal procedures of the Tenure Act before the 1973 motion for summary judgment was granted. ⁶ Both the 1973 and 1978 judgments state that the agency shop clause does not contravene the Tenure Act, a holding which does not necessarily include the finding that the Tenure Act is "inapplicable procedurally and substantively to * * * termination of teachers for non-compliance with (an agency shop clause)". ⁷

" '(It) is immaterial whether the point was actually litigated in the first suit or not, if its determination was necessarily included in the judgment'." Curry v. Detroit, 394 Mich. 327, 332, fn.7, 231 N.W.2d 57 (1975), quoting Barker v. Cleveland, 19 Mich. 230, 235-236 (1869).

The 1973 and 1978 judgments also both contain the holding that the agency shop clause at issue here "is valid and of full force and effect according to its terms". ⁸ The agency shop clause has, since it was first included in the collective bargaining agreement in 1969, authorized the dismissal of any teacher not in compliance with it. This does not, however, of itself negate a requirement that the Tenure Act be followed when the teacher threatened with dismissal is a tenured one. In fact, until 1977, the clause itself required the Board to follow the dismissal procedures of the Tenure Act "as applicable". (See footnote 2, supra.)

The 1978 summary judgment contains a somewhat different-and broader-holding: that the Tenure Act is inapplicable to dismissals under an agency shop clause, both procedurally and substantively. It is this portion of the judgment which was given res judicata effect and upon which the circuit court based its conclusion that the Tenure Commission was without jurisdiction in Parks.

Appellees contend that this holding has been the "law of the case" in Abood since the summary judgment granted by the circuit court in 1970 in Warczak, and was merely restated by the judge in 1978. In his opinion granting the 1970 motion, Judge Kaufman did specifically consider and pass upon the question of whether the "reasonable and just cause" requirement of the Tenure Act applies to the dismissal of a teacher for nonpayment of agency shop fees. The clause in effect at that time provided that nonpayment of the fees was to be considered reasonable and just cause under the Tenure Act, and Judge Kaufman concluded that that clause was "valid and of full force and effect according to its terms". ⁹ In so holding, however, he relied heavily on the fact that adherence to the procedural protections of the Tenure Act was required by the clause itself. ¹⁰ This requirement was not deleted until 1977. It is therefore clear that the question of whether the Tenure Act is procedurally applicable to a dismissal under the agency shop clause was never properly before the circuit court for decision, nor was it necessarily decided by its holdings on other issues. This portion of the holding contained in the 1978 summary judgment in Abood cannot, therefore, be given res judicata effect in Parks.

The circuit court did consider the effect of the substantive requirement (reasonable and just cause) of the Tenure Act on agency shop clause dismissals at least once-prior to granting the 1970 motion for summary judgment. The holding of the court as expressed in its opinion seems to be that the "reasonable and just cause" requirement does not prevent a teacher's dismissal for failure to pay agency shop fees. The language of the opinion leaves unclear whether or not a formal finding of reasonable and just cause at Tenure Act hearing would still be required. (See footnote 10, supra.)

This distinction between the "procedural" and "substantive" aspects of the Tenure Act was also blurred by the Tenure Commission in its decision and order in Parks. Though the stated ground of its decision to reinstate Parks was that she was denied the procedural protections of the Tenure Act, in discussing the possible res judicata effect in Abood, the Commission stated the issue before it as follows:

"In the instant matter, appellant is claiming the Board violated her statutory right to the due process procedures of the Teachers' Tenure Act by failing to provide her with charges, notice and the right to a hearing in determining whether just and reasonable cause for discharge existed. In Abood, her challenge was directed at the constitutionality of the agency shop clause under which she was required to pay the service fee." (Emphasis added.) ¹¹

In short, though it had concluded that the agency shop clause was enforceable and did not contravene the Tenure Act, prior to its 1978 decisions, the circuit court had never held that the Tenure Act was completely inapplicable to agency shop clause dismissals. No new findings were made prior to its 1978 decision to grant summary judgment, and its Order seems to have been primarily intended to summarize the holdings previously made in the case. Because of this and the difficulty in separating the "procedural" and "substantive" aspects of the Act, we do not believe that this portion of the court's decision in Abood can have res judicata effect in Parks, and we address the issue of the applicability of the Act on its merits.

II May a Tenured Teacher Be Discharged For Failure To Pay Agency Shop Fees Without Regard To The "Reasonable and Just Cause" or Other...