Merdler v. Board of Ed. of School Dist. of City of Detroit

Decision Date26 August 1977
Docket NumberAFL-CIO,Docket No. 30736
Citation259 N.W.2d 211,77 Mich.App. 740,96 L.R.R.M. (BNA) 3264
PartiesRuth Jean MERDLER, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF DETROIT, a Municipal Statutory Body Corporate, Detroit Federation of Teachers, Local 231, American Federation of Teachers,, a union association, and Dorothy Irwin, Defendants-Appellees. 77 Mich.App. 740, 259 N.W.2d 211, 96 L.R.R.M. (BNA) 3264
CourtCourt of Appeal of Michigan — District of US

[77 MICHAPP 741] George Stone, Detroit, for plaintiff-appellant.

Theodore Sachs, George T. Roumell, Jr., Detroit, for defendants-appellees.

[77 MICHAPP 742] Before MAHER, P. J., and KAUFMAN and BORCHARD, * JJ.

PER CURIAM.

Plaintiff brought this action for wrongful discharge against defendant Board of Education of the School District of the City of Detroit (hereinafter referred to as "Board"). She also named Detroit Federation of Teachers, Local 231, as defendants, (hereinafter referred to as "Union") claiming that the Union had wrongfully refused to process her grievance.

Both defendants responded to the complaint by denying the essential allegations contained therein except to agree that the plaintiff's grievance was without merit.

Both defendants then moved for accelerated and summary judgment of dismissal for the reasons that (1) plaintiff had failed to state a claim upon which relief could be granted; (2) there was no material dispute of fact and the defendants were entitled to judgment as a matter of law; (3) plaintiff's exclusive remedy was the grievance procedure contained in the collective bargaining agreement; and (4) plaintiff had failed to utilize and exhaust her internal union remedies.

Following the submission of briefs and after hearing oral argument, Wayne County Circuit Court Judge Thomas J. Foley entered an opinion on August 31, 1976 which granted both defendants' motions for summary and accelerated judgment and dismissed the plaintiff's complaint for all the reasons set forth by the defendants in their motions.

Plaintiff appeals as of right.

The trial court granted summary judgment based on GCR 1963, 117.2(1), the failure to state a [77 MICHAPP 743] claim upon which relief can be granted. The standard for review of summary judgment based on that rule is well established. A motion based on sub-section (1) challenges the legal sufficiency of plaintiff's claim and is to be examined and considered by the legal sufficiency of the pleadings alone. Every well-pleaded allegation must be accepted as true. The test is whether plaintiff's claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Woodworth v. Brenner, 69 Mich.App. 277, 244 N.W.2d 446 (1976); Borman's, Inc. v. Lake State Development Co., 60 Mich.App. 175, 230 N.W.2d 363 (1975).

Plaintiff Ruth Jean Merdler was a part-time substitute teacher; in terms of the contract, an "emergency substitute in regular position", or "ESRP".

On September 1, 1972, plaintiff was employed by the Board as an ESRP for the ensuing school year to function in a relief capacity three days per week at Lynch Elementary School. The plaintiff served as a relief teacher for tenured and probationary teachers making use of the one hour of preparation time allowed them each day. On March 12, 1973, the plaintiff received the following notice terminating her services:

"March 12, 1973

"Dear Mrs. Merdler,

"Because of the situation which has occurred, and because the relationships among the teachers are deteriorating rapidly as a result, I feel it would be better if you worked in a different school setting after Wednesday, March 14, 1973.

"Therefore, this letter is the required two day notice of termination which is called for by the Personnel rules.

[77 MICHAPP 744] "Thank you for your service to our school this year.

"Sincerely yours,

"Dorothy Irwin

"Principal."

The collective bargaining agreement Article XII, § G provides, in pertinent part:

"Contract teachers shall receive at least a week's notice before they are transferred from one regular assignment to another regular assignment unless such transfer is at the teacher's own request. ESRP's shall be given at least two days' notice before an assignment is closed out * * *." (Emphasis added.)

The parties to the contract agree that this language refers to the assignment of the teacher, rather than the job to which that teacher may be assigned. This interpretation is entitled to great weight. Barrett v. Safeway Stores, Inc., 538 F.2d 1311 (CA 8, 1976); Pekar v. Local 181, Brewery Workers, AFL-CIO, 311 F.2d 628, 636 (CA 6, 1962), cert. den., 373 U.S. 912, 83 S.Ct. 1303, 10 L.Ed.2d 414 (1963).

In Detroit Federation of Teachers v. Detroit Board of Education, 396 Mich. 220, 240 N.W.2d 225 (1976), the Michigan Supreme Court discussed the closing out of an ESRP's assignment:

"The rights and benefits accorded teachers in each category vary.

"An ESRP's assignment may be 'closed out' upon two days' notice. Master Agreement, Art. XII, § G. Under the Teachers' Tenure Act, a probationary teacher is entitled to be 'notified in writing at least 60 days before the close of the school year that his services will be discontinued'. MCLA 38.83; MSA 15.1983. 'Generally, probationary teachers with less than two years' seniority will not be transferred.' Art. XII, § G.

There is no [77 MICHAPP 745] similar limitation on the discretion of the board to transfer ESRPs." 396 Mich. at 225, n.6, 240 N.W.2d at 228.

The statement of facts in Justice Williams' opinion noted:

"As a result, many full-time teachers for the 1972-73 academic year were labeled ESRPs, were denied a written contract, and were subject to termination on 48 hours notice. In contrast, probationary teachers had in the past received a written contract which by its terms required sixty days notice before termination." (Emphasis added; footnote omitted.) 396 Mich. at 230, 240 N.W.2d at 230.

There is no dispute that plaintiff received two days' notice before she was discharged. Therefore, the plaintiff's claim that she was wrongfully dismissed must be rejected. In the absence of a contractual provision to the contrary, an employer can discharge an employee at will and without cause. Carry v. Consumers Power Co., 64 Mich.App. 292, 235 N.W.2d 765 (1975).

Why defendant Union entered into this contract is not for us to decide 1 and plaintiff as a member of defendant Union worked under this contract of employment.

Defendant Union in its answer to plaintiff's complaint and in its motion supra stated that while it would prefer to agree with the interpretation of plaintiff, that is simply not what the parties bargained for and it is obliged to abide by its agreement.

The complaint against the defendant Union contains the following allegations:

"8. That said Local failed, refused and neglected to [77 MICHAPP 746] take any steps or make any effort to process such grievance on behalf of plaintiff and aid her in obtaining reinstatement and other relief which might be due to her.

"11. That the acts herein referred to were performed by all of the defendants without just cause or provocation and were done with malicious intent to bring about termination of plaintiff's employment to her damage as aforesaid. That plaintiff, since the unlawful termination of her employment, has made repeated efforts to obtain employment in a like or kindred capacity but has not been successful in doing so due to the manner in which she was discharged and to the disparagement of her professional integrity caused thereby."

The pleadings in the present case were framed in conclusional language. No facts were pleaded. Therefore, the complaint was insufficient. Plaintiff's citation to Handwerk v. United Steelworkers of America, 67 Mich.App. 747, 242 N.W.2d 514 (1976), is misplaced in this case, as the Union did not act in a negligent or untimely fashion here.

In order to properly plead such a breach of duty, the law requires that the complaint must factually allege misconduct. The Court in Carry v. Consumers Power Co., supra, 64 Mich.App. at 298, 235 N.W.2d at 768, concluded:

" '(T)he allegations of a complaint alleging a breach of a union's duty of fair representation must contain more than conclusory statements alleging improper representation; conclusory allegations without specifying supporting facts to show the union's lack of good faith fail to state a valid claim. Balowski v. International U., United A.A. & A. Imp. Wkrs., 372 F.2d 829, 835 (CA 6, 1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (CA 9, 1962), cert. den. 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962); Brown v. Truck Drivers &...

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    • United States
    • Michigan Supreme Court
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    ...The Court distinguished Sims as a pre-Lowe case. Thus, it relied not on Sims, but on Ruzicka I. In Merdler v. Detroit Bd. of Ed., 77 Mich.App. 740, 746, 259 N.W.2d 211 (1977), the union did not process the plaintiff's grievance because it found the grievance to be without merit. The Court o......
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