Rockwell v. Board of Educ. of School Dist. of Crestwood

• Decision Date: 17 January 1975
• Docket Number: Docket No. 22735,No. 1,1
• Citation: 57 Mich.App. 636,226 N.W.2d 596
• Parties: , 88 L.R.R.M. (BNA) 3516, 76 Lab.Cas. P 53,643 George N. ROCKWELL and Violet P. Rockwell, Plaintiffs, v. The BOARD OF EDUCATION OF the SCHOOL DISTRICT OF CRESTWOOD, Defendant-Cross-Plaintiff-Appellant, Crestwood Education Association et al., Defendants-Cross-Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 596

226 N.W.2d 596

57 Mich.App. 636, 88 L.R.R.M. (BNA) 3516,

76 Lab.Cas. P 53,643

George N. ROCKWELL and Violet P. Rockwell, Plaintiffs, v. The BOARD OF EDUCATION OF the SCHOOL DISTRICT OF CRESTWOOD Defendant-Cross-Plaintiff-Appellant Crestwood Education Association et al Defendants-Cross-Defendants-Appellees.

Docket No. 22735.

Court of Appeals of Michigan, Division No. 1.

Jan. 17, 1975.

Released for Publication March 13, 1975.

Edward L. Homeier, Detroit, for Bd. of Ed.

Miller, Canfield, Paddock & Stone, by W. Peter Doren, Lansing, for plaintiffs-appellants.

Levin, Levin, Garvett & Dill, by Erwin B. Ellmann, Detroit, for appellees.

Before V. J. BRENNAN, P.J., and BASHARA and M. J. KELLY, JJ.

PER CURIAM.

This is an appeal from the decision of a three-judge panel of the Wayne County Circuit Court. The panel held, by a 2 to 1 decision, that some 184 teachers had been improperly fired by he Board of Education of the Crestwood School District. The panel ordered that the teachers be reinstated. We granted the board an emergency appeal and issued an order staying the relief granted in Circuit Court. Because of the compelling importance of this case, we ordered accelerated filing of briefs and early disposition of the cause. In spite of the obvious time limitations, we have been favored with incisive briefs by the parties and the amici curiae.

The parties have been without a collective bargaining agreement since August of 1973. Between that time and this, negotiations have proved futile.

September 3, 1974, was the date on which the schools in the district were to reopen following the summer vacation. The teachers, members of the Crestwood Educational Association (CEA), refused to report for work. The situation thus remained in limbo until September 30, 1974, when plaintiffs initiated an action in Wayne County Circuit Court. They sued as homeowners and taxpayers in the district and as the parents of school children in the district. Their complaint requested that the board and teachers be ordered to bargain in good faith. It was also requested that the teachers be ordered to return to work and that the board be enjoined from firing the teachers.

By stipulation of all concerned, the Rockwells were dismissed as parties plaintiff. The litigation continued, however, on the cross-complaint of the board. On October 8, 1974, Wayne County Circuit Court Judge Joseph G. Rashid ordered that the teachers return to work and that the board implement the terms of its proposed salary schedule. Specific orders designed to require intensive and serious negotiating were also entered. The terms of these orders were apparently respected and were supplemented by a further injunction against striking issued by Judge Rashid on October 22, 1974.

On December 4, 1974, the teachers again refused to report for work. Contempt proceedings followed, resulting in fines against certain teachers which were paid. Sixteen days later, the board adopted a resolution requiring the teachers to either report to their regular teaching assignments on Friday, December 27, 1974, or to submit a letter of resignation by 4:30 p.m. on December 27. It was further resolved that any teachers failing to exercise the option would have their employment terminated as of 11:59 p.m. on December 27, 1974. Copies of the resolution were served on the teachers.

Of the 222 teachers in the district, 38 reported for work. None submitted a letter of resignation. The remaining 184 teachers were, by board resolution of December 30, 1974, deemed to have terminated their employment. Substitute teachers were hired by the board on a day-to-day basis, however the board conceded at oral argument that as of this date the classes are not fully-staffed on a full-time basis.

The teachers, through the CEA, responded by filing with the Michigan Employment Relations Commission (MERC) a charge that the board had failed to collectively bargain in good faith and had attempted by its actions to destroy and interfere with the CEA in violation of §§ 7 and 10 of the public employment relations act (PERA), formerly known as the Hutchinson Act, M.C.L.A. § 423.201 et seq; M.S.A. § 17.455(1) et seq. This charge followed a previous CEA charge against the board. Both charges are presently pending before MERC and are not directly involved in the case before us.

The teachers also responded to the December 30 resolution by a letter to the board dated January 6, 1975, wherein the teachers requested individual hearings before the board in accord with § 6 of PERA, M.C.L.A. § 423.206; M.S.A. § 17.455(6). It was specified in the letter that the request for a hearing was not to be construed as a waiver of any other employee rights. On January 6, 1975, the CEA moved in Circuit Court for an injunction to prevent the board from relying on the December 30 resolution and to prevent the board from terminating any teacher in a manner other than that set out in the teachers' tenure act, M.C.L.A. § 38.71 et seq.; M.S.A. § 15.1971 et seq.

The presiding judge of Wayne County Circuit Court appointed a three-judge panel consisting of Judge Rashid, Judge Thomas Roumell and Judge George Bowles to hear the motion. Judges Bowles and Roumell decided that the provisions of the teachers' tenure act controlled and that the purported firings were of no effect because of non- compliance with the teachers' tenure act. Judge Rashid filed a cogent, persuasive dissent finding that PERA controlled and that the teachers were discharged in compliance with taht act. It is from the order granting CEA's motion for an injunction that the board appeals.

It is well settled that there is neither a common-law nor a constitutional right of public employees to strike. Detroit v. Division 26, AASER, 332 Mich. 237, 51 N.W.2d 228 (1952). Moreover, in this State, public employees are specifically denied the power to strike by § 2 of the public employment relations act.

That act defines a public employee as, among others, a person 'in the public school service'. M.C.L.A. § 423.202; M.S.A. § 17.455(2). It is undisputed that these teachers are public employees subject to the provisions of the act.

Section 1 of the act defines a 'strike' as:

'Strike means the concerted failure to report for duty, the wilful absence from one's position, the stoppage of work, or the abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in the conditions, or compensation, or the rights, privileges, or obligations of employment.' M.C.L.A. § 423.201; M.S.A. § 17.455(1).

The circuit court panel found, and we agree, that the teachers were engaged in a strike prohibited by the act and thus, we believe, became subject to the provisions of § 6 of PERA.

By necessary inference that section gives public employers the power to discipline or remove employees who engage in a strike. It refers to 'the officer or body having power to remove or discipline such employee', and refers to cessation of compensation or imposition of other discipline. Furthermore, § 6 says, 'If the employee involved is held to have violated this law and his employment terminated * * *.' M.C.L.A. § 423.206; M.S.A. § 17.455(6). As originally enacted, PERA provided for automatic termination of employment. 1947 PA 336, § 4. While that provision was repealed by 1965 PA 379, we do not believe it in any way detracted from the board's authority in this area. We believe it simply made the discipline of a striking employee discretionary with the employer under § 6.

Our central concern on this appeal, once having determined that the PERA grants the board the authority to discharge a striking teacher is to determine the manner in which such disciplinary action may be taken. In performing our duty in this regard we are guided by what our Supreme Court said in Wayne County Civil Service Commission v. Board of Supervisors, 384 Mich. 363, 373, 184 N.W.2d 201, 204 (1971):

'This is not to say that the act of 1965 repeals outright the act of 1941. Respecting as always our long since declared and regularly maintained rule that repeals by implication are not favored, and that it is only when the two measures in view are so incompatible that both or all cannot fully stand, we can only find that this is a striking instance for application of that rule which, back in 1877, was written into the Court's opinion of Breitung v. Lindauer, 37 Mich. 217, 233 (1877):

"The rule is that the latter act operates To the extent of the repugnancy, as a repeal of the first, or, if the two acts are not in express terms repugnant, yet if the latter Covers the whole subject of the first, and contains new provisions showing that it was intended as a substitute, it will operate as a repeal." (Footnote omitted.)

The important point made in the above quotation is that the law does not favor repeals by implication. It is only where no reasonable construction of the statutes involved permits of reconciliation or allows the purpose of each to be served that a repeal by implication is properly found to have occurred. Detroit Police Officers Association v. Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974).

In an attempt to perform our function in this regard, we have exhaustively considered the contentions of all parties regarding the proper interpretation of these two statutes. M.C.L.A. § 423.206; M.S.A. § 17.455(6) provides:

'Notwithstanding the provisions of any other law, any person holding such a position who, by concerted action with others, and without the lawful approval of his superior, wilfully absents himself from his position, or abstains in whole or in part from the full, faithful and proper performance of his duties for the purpose of inducing, influencing or coercing a change in the conditions or compensation, or the rights, privileges or obligations of employment shall be deemed to be on strike but the...