Kewin v. Board of Ed. of Melvindale Northern Allen Park Public Schools

• Decision Date: 12 November 1975
• Docket Number: AFL-CI,Docket No. 21268,D
• Citation: 16 Fair Empl.Prac.Cas. (BNA) 1586,237 N.W.2d 514,65 Mich.App. 472
• Parties: Shirla D. KEWIN, Plaintiff-Appellee, v. BOARD OF EDUCATION OF the MELVINDALE NORTHERN ALLEN PARK PUBLIC SCHOOLS, Defendant-Appellant, and Melvindale Federation of Teachers Local 1051 AFT,efendant-Appellee. 65 Mich.App. 472, 237 N.W.2d 514, 16 Fair Empl.Prac.Cas. (BNA) 1586, 11 Empl. Prac. Dec. P 10,718
• Court: Court of Appeal of Michigan — District of US

Page 514

237 N.W.2d 514

Shirla D. KEWIN, Plaintiff-Appellee, v. BOARD OF EDUCATION OF the MELVINDALE NORTHERN ALLEN PARK PUBLIC SCHOOLS, Defendant-Appellant and Melvindale Federation of Teachers Local 1051 AFT, AFL-CIO Defendant-Appellee.

Docket No. 21268.

65 Mich.App. 472, 237 N.W.2d 514,

16 Fair Empl.Prac.Cas. (BNA) 1586,

11 Empl. Prac. Dec. P 10,718

Court of Appeals of Michigan.

Nov. 12, 1975.

Released for Publication Jan. 30, 1976.

[65 MICHAPP 474] Gerald Tuchow, Flat Rock, for defendant-appellant.

Levin, Levin, Garvett & Dill by Daniel J. Hoekenga, Detroit, for Kewin.

Fieger, Golden & Cousens by Mark Cousens, Southfield, for Federation.

Before J. H. GILLIS, P.J., and BRONSON and T. M. BURNS, JJ.

BRONSON, Judge.

Appellant, Board of Education of the Melvindale-Morthern Allen Park Public Schools (Board), appeals a judgment of $5,249.23 issued by the Wayne County Circuit Court in favor of plaintiff, a female teacher, as compensation for [65 MICHAPP 475] the violation of her rights under the due process clause. ¹ We affirm the judgment.

The controversy arises out of a collective bargaining contract signed by the Board and defendant-appellee, Melvindale Federation of Teachers, Local 1051, AFT, AFL-CIO (Federation), bargaining agent for plaintiff. The contract contained the following provision:

'A teacher will not be permitted to begin a teaching assignment when she is pregnant prior to the commencement of school. Should pregnancy occur after the commencement of school, a teacher will be required to terminate her teaching duties at the end of the fifth calendar month of pregnancy, or as close to the time when the school program is normally interrupted. (ex. Christmas, end of the semester, Easter). A teacher will furnish a written opinion from a medical doctor as evidence of the time that pregnancy has existed. Leave will continue for four months following the date of birth of child and the teacher may return only with her physician's written permission. The Superintendent will notify the teacher of the first position available after the teacher has terminated her leave. Upon written request, one year's extension of leave may be granted by the Board. The Board's decision will be final.' (Emphasis added.)

Plaintiff was employed by appellant for the 1969--1970 school year. She first notified the Board in February, 1970 that she was pregnant, and later wrote the school board, March 11, 1970, when she was five months pregnant, stating her desire to return to her job 'as soon as legally possible'. Plaintiff took a maternity leave of absence commencing with the Easter vacation. She gave birth July 15, 1970 and notified the Board August 19, 1970, that she was prepared to return [65 MICHAPP 476] to work for the September term. She delivered a physician's statement certifying her physical health.

The Board, relying on the maternity leave provisions of the collective bargaining agreement, refused to reinstate her at that time, stating that it had not been four months since she gave birth. She was subsequently offered full-time employment commencing February 1, 1971, which she accepted.

Plaintiff instituted this suit in September, 1971, charging the Board and the Federation with joint liability in having violated, Inter alia, the Fourteenth Amendment of the United States Constitution. ² Following a trial without a jury, the Federation moved for and was granted a directed verdict. The trial judge, relying on Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), declared that the mandatory maternity leave was unconstitutional and awarded plaintiff damages against the Board, based on lost wages, lost salary increments, and lost hospital insurance premiums.

The Board appeals that judgment on several grounds, those most worthy of consideration being (1) plaintiff failed to exhaust the grievance procedures of the collective bargaining agreement, (2) the Federation, as plaintiff's authorized bargaining representative, waived plaintiff's constitutional rights, (3) plaintiff was bound by and did not comply with the collective bargaining notice provisions applicable to all leaves of absence, (4) appellee[65 MICHAPP 477] Federation must be jointly liable for any judgment based on the unconstitutionality of the collective bargaining agreement.

Plaintiff characterizes this appeal as vexatious, averring that the above issues are without merit. She asks that costs and attorney's fees be imposed on appellant pursuant to GCR 1963, 816.5(2). We will examine the merits of the issues raised by appellant.

I.

As a preliminary matter, we must determine if plaintiff's complaint was properly before the court. Appellant contends that the grievance procedure in the collective bargaining agreement was not exhausted. Exhaustion of contractual grievance procedures is generally necessary to maintain a suit based on a breach of the collective bargaining agreement. Failure to follow the bargained-for grievance mechanisms precludes judicial remedies, ³ except in certain instances. ⁴ The trial court decreed that plaintiff's complaint came within an exception to the exhaustion doctrine implied by Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). ⁵

[65 MICHAPP 478] We concur in the trial court's holding on this preliminary issue, and we find that the Alexander analogy makes sense. However, we can dispose of this issue by simple contract interpretation without deciding if we are required to apply Alexander. ⁶

The collective bargaining agreement in the present case reads, in pertinent part: 'A grievance is defined as a complaint about An act or condition which a teacher conceives to be Contrary to this contract. If a grievance arises * * * such grievance will be processed pursuant to grievance procedures.' Art. 12, § A. (Emphasis added.)

The plaintiff's present complaint is that the four-month waiting period, authorized by the contract, is unconstitutional. Her complaint is Not that the action of the appellant was 'contrary to plaintiff's contract', for the action taken was pursuant to the contract. Because the claim is not a grievance as defined by the contract, doctrines of exhaustion of the grievance procedures are irrelevant.

Even if the Board's action could also give rise to a grievance under the contract, the exhaustion [65 MICHAPP 479] doctrine would be inapplicable to her constitutional claim. The mere fact that the same conduct is violative of both the Constitution and the contract should not deny plaintiff immediate access to the court on her constitutional claim. Barry v. Flint Fire Department, 44 Mich.App. 602, 606--607, 205 N.W.2d 627 (1973).

II.

There is no doubt that if the maternity leave provisions had been unilaterally imposed on the teachers as a school board policy, they would violate due process. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Cf., Matter of LaFlure, 48 Mich.App. 377, 210 N.W.2d 482 (1973) (rebuttable presumption in custody hearings violates due process clause). LaFleur struck down maternity leave provisions nearly identical to those in question, the Supreme Court concluding that the provisions were based on irrebuttable presumptions that unnecessarily burdened the teacher's freedom of personal choice in marriage and family matters. 414 U.S. 632, 639--640, 94 S.Ct. 791, 39 L.Ed.2d 52.

The appellant tries to distinguish LaFleur by arguing that plaintiff's bargaining representative agreed to the maternity provisions in the collective bargaining agreement. ⁷ We think that the union could not consent to this overburdening of plaintiff's protected freedom of personal choice.

[65 MICHAPP 480] It is true that, under Federal labor law, certain rights may be bargained away by the union, Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed.2d 309 (1956) (right to strike for economic leverage). However, as was noted in Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147, 160 (1974), the rights that may be bargained away are restricted:

'(R)ights * * * Conferred on employees collectively to foster the processes of bargaining * * * properly may be exercised or relinquished by the union as collective bargaining agent to obtain economic benefits for union members.' (Emphasis added.)

Alexander went on to hold that Title VII rights are 'an individual's rights to equal employment opportunities' and may not be waived. In the present case, the right to freedom of choice in marriage and family matters is similarly a right of an individual that the union cannot barter or unnecessarily burden. Cf., People v. Earegood, 12 Mich.App. 256, 275, 162 N.W.2d 802 (1968), Rev'd in part on other grounds, 383 Mich. 82, 173 N.W.2d 205 (1970).

This highly personal right is well rooted in the Constitution. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and LaFleur, supra. Certain statutory rights, of a lesser importance in our scheme of liberty, may not be bargained away by the union. E.g., National Labor Relations Board v. The Magnavox Company of Tennessee, 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974) (employees' rights under section 7 of National Labor Relations Act, 29 U.S.C. § 157, to form unions), Lerwill v. Inflight Services, Inc., 379 F.Supp.[65 MICHAPP 481] 690 (N.D.Cal.1974) (right to overtime pay guaranteed by Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 Et seq., Employment Security Commission v. Vulcan Forging Co., 375 Mich. 374, 134 N.W.2d 749 (1965) (unemployment compensation).

The present agreement, by overburdening a constitutional right, is violative of the public policy of the United States and of Michigan, as manifested in the Constitution; we cannot enforce the agreement. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 ...