Mellon v. Board of Education of Fitzgerald Public Schools , 22 Mich. App. 218 ( 1970 )

22 Mich. App. 218 (1970) 177 N.W.2d 187

MELLON
v.
BOARD OF EDUCATION OF THE FITZGERALD PUBLIC SCHOOLS

Docket No. 6,541.

Michigan Court of Appeals.

Decided February 26, 1970.

Ross & Bruff, for plaintiff.

Steve S. Michaels, for defendant.

Amicus Curiae: the Fitzgerald Education Association (by Levin, Levin, Garvett & Dill [Erwin B. Ellmann and Harvey I. Wax, of counsel]).

Before: LESINSKI, C.J., and McGREGOR and QUINN, JJ.

LESINSKI, C.J.

As a result of a certification election, the Fitzgerald Education Association (FEA)^[1] is the exclusive representative for collective bargaining purposes of all 287 teachers employed by defendant Board of Education of the Fitzgerald Public Schools. See MCLA § 423.209 (Stat Ann 1968 Rev § 17.455[9]) and MCLA § 423.211 (Stat Ann 1968 Rev § 17.455[11]). Pursuant to this authority, the FEA and defendant entered into a collective bargaining agreement covering wages, hours and other terms and conditions of employment of the 287 Fitzgerald school system teachers, for the period of July 1, 1968, through June 30, 1970.

Pursuant to MCLA § 423.215 (Stat Ann 1968 Rev § 17.455[15]), and § 423.211, supra, the collective bargaining agreement established detailed procedures for the handling of teacher complaints, questions and grievances concerning wages, hours, and other terms and conditions of employment.

Plaintiff Marilyn Mellon is a teacher employed by the defendant Board of Education and is a beneficiary of the above collective bargaining agreement. She apparently became aggrieved of certain actions, including harassment and reassignment, by her school principal. Although recognizing the procedures provided by the bargaining agreement, plaintiff elected to present a direct grievance petition to the defendant board. The board denied the plaintiff's request for a hearing on her petition as being outside the collectively agreed-upon procedures. Plaintiff then instituted a circuit court action seeking a writ of superintending control over the defendant. Defendant's motion for summary judgment was denied and an order was issued mandating a full hearing on plaintiff's petition.

At the outset we note that the Fitzgerald Education Association has indicated a willingness to consider and process plaintiff's grievances through the established procedures.

On appeal defendant argues that plaintiff does not have a statutory or contractual right to a full hearing on her direct petition to the school board. In the absence of a clear, legal right, the Board is not under a clear legal duty to grant a hearing. Hence, argues defendant, an order of superintending control (in the nature of mandamus) may not issue. Taylor v. Ottawa Circuit Judges (1955), 343 Mich. 440; GCR 1963, 711.2. We agree.

MCLA § 423.211 establishes the exclusive bargaining authority of the elected representative. However, in a provisio to § 423.211, the right of an individual teacher to present grievances is recognized.

"Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment."^[2]

The purpose of the proviso is twofold: First, to permit individual teachers to present certain grievances to the school board without the delay or formality of grievance procedures, or where the bargaining agent is acting capriciously; and second, to permit the employer to negotiate directly with the individual teacher without being in violation of MCLA §§ 423.210, 423.215 (Stat Ann 1968 Rev §§ 17.455[10], 17.455[15]) which proscribe unfair labor practices and evasion of the collective bargaining agreements. The permissive character of the language of the proviso is readily apparent when compared to the mandatory language of § 423.215:

"A public employer shall bargain collectively with the representatives of its employees as defined in § 11 (MCLA § 423.211 [Stat Ann 1968 Rev § 17.455 (11)])." (Emphasis supplied.)

If the employer desires to settle individual grievances without the intervention of the bargaining representative, the proviso gives him the power. However, since the proviso requires an individual adjustment to be consistent with the collective bargaining agreement, the employer may elect to proceed under the agreement's procedures in the first place rather than risk rebargaining over the same issues. This same conclusion has been reached by the Michigan Labor Mediation Board in Strayer v. Avondale School District Board of Education (1967), Case No. C66 F-71, and the Federal courts (interpreting 61 Stat 143 (1947), 29 USC § 159[a], the National Labor Relations Act § 9[a], the Federal counterpart of MCLA § 423.211), in Broniman v. Great Atlantic & Pacific Tea Company (CA 6, 1965), 353 F2d 559, cert den (1966), 384 U.S. 907 (86 S. Ct. 1343, 10 L. Ed. 2d 360), and Black-Clawson Company, Inc., v. International Association of Machinists Lodge 355 (CA 2, 1962), 313 F2d 179.

Therefore, since the school board was not under a duty to provide plaintiff with an individual grievance hearing, it was error for the trial court to compel such a hearing. The order of superintending control is reversed. This case is remanded for entry of summary judgment in favor of defendant.

All concurred.

NOTES

[1] The Fitzgerald Education Association has been permitted to file a brief amicus curiae in this case.

[2] This same language is incorporated in the instant collective bargaining agreement. Since the employer agreed to the collective bargaining aspects of the agreement, it is illogical to suppose that the board would also agree to individual bargaining as of right.