Benson v. School District No. 1 of Silver Bow County , 136 Mont. 77 ( 1959 )

MR. JUSTICE ANGSTMAN:

Plaintiffs brought this proceeding in mandamus and for a declaratory judgment to- compel the defendant School District to enter into contracts with them and to require the issuance of salary warrants for the payment of the salary schedule designated under what is known as the “Master Agreement” made and entered into between the School District and the Teachers’ Union. They also prayed for a declaratory judgment, declaring that the defendants have no authority to discriminate against plaintiffs or any other teachers who do not become members of the Butte Teachers’ Union, and that the provisions of the Master Agreement providing for union security be declared null and void and of no effect. It also sought attorneys’ fees.

Plaintiffs are school teachers of defendant School District. They obtained a judgment in their favor upon the pleadings, and defendants and certain interveners appealed.

Since the judgment was entered on the pleadings it becomes necessary to consider the state of the pleadings. The complaint alleges that the plaintiffs are school teachers in School District No. 1 of Silver Bow County; that the defendants are the trustees of that School District; that on the 2nd day of April 1956, the defendant School District approved what it called a Master Agreement which among other things contained the following provisions that “The single salary principle of equal salary for equal training and experience shall prevail.”

It established a salary schedule for the plaintiffs of $5,100 per year for four of them and $4,900 for the other four. The Master Agreement then contained these clauses:

“ (a) All members now employed by the Board, who. are not now members of the Union, must become members of the Union on or before the 4th day of September, 1956, and shall maintain their membership in the Union in good standing as defined by the constitution and by-laws of the Union during the term of their employment.

“ (b) All teachers now employed by the Board, who are now members of the Union, shall maintain their membership in the Union in good standing as defined by the constitution and bylaws of the Union during the term of their employment.

“(c) All new teachers or former teachers employed by the Board shall become members of the Union within thirty (30) days after date of their employment and shall maintain their membership in good standing as defined in the constitution and by-laws of the Union during the term of their employment.

“The provisions of this Union Security Clause shall be adopted as a Board Rule and shall be a condition of all contracts issued to any teacher covered by this agreement.

“Any teacher who fails to sign a contract which includes the provisions of this Union Security Clause and who fails to comply with the provisions of this Union Security Clause shall be discharged on the written request of the Union, except that any such teacher who now has tenure under the laws of the State of Montana shall not be discharged but shall receive none of the benefits nor salary increases negotiated by the Union and shall be employed, without contract, from year to year on the same terms and conditions as such teacher was employed at during the year 1955-1956.”

The complaint alleges that the plaintiffs are not members of the Butte Teachers’ Union Local 332, and that they all signed and returned the contracts to the trustees of the district, but deleted therefrom the provisions that required them to become members of Butte Teachers’ Union; that each of the plaintiffs was then advised by letter that their salaries would be at the rates enjoyed by them prior to the making of this contract, which was $300 per year less than the contract price stated in the Master Agreement. This letter after referring to the salary at which they would be retained contained a clause that should the teachers thereafter sign the Master Agreement they should then receive the higher salary from the date of so signing. The complaint alleges that it is above and beyond the powers of the defendant Board of Trustees to compel the plaintiffs to join or belong to the Butte Teachers’ Union in order to qualify for and receive the wages, salary and compensation fixed by the Board.

It alleges the failure and refusal of the defendant Trustees to issue to the plaintiffs warrants for the payment of their increased salary though demand therefor has been made. It is alleged that the defendant Board of Trustees did issue to plaintiffs warrants for the lesser salary. It is alleged that plaintiffs entered upon their duties as teachers and have continued to perform those duties as teachers for the School District.

The Montana Education Association and National Education Association were permitted to intervene and they filed a complaint in intervention in which they alleged that the plaintiffs are members of those organizations; they reiterated the allegations contained in the Master Agreement so far as they relate to the Union Security Clause and alleged that such provisions did not appear in prior contracts between tbe School District and these plaintiffs. In general they joined with the plaintiffs and sought the same relief which plaintiffs seek.

The American Federation of Teachers was permitted to intervene and it to all intents and purposes promoted the cause of the defendants. Otto Habedank, an attorney at law of Sidney, Montana, was also permitted to appear as amicus curiae. He advanced the cause of the plaintiffs. The Montana State Federation of Labor and the CIO were also permitted to intervene. They unite with the defendants in asserting the validity of the Master Ag'reement and all its provisions.

All of the material allegations of the complaint are admitted except denial is made of certain conclusions of law drawn from the facts alleged. Defendants denied that they fixed the wages, salary and compensation of the plaintiffs as alleged in the complaint but they did admit that they offered the schedule of rates as alleged but upon condition that the Union Security Clause be also a part of the contract. They allege in substance that when the plaintiffs rejected the Union Security Clause of the agreement that the defendants were obliged under section 75-2401, B.C.M. 1947, to employ the plaintiffs on the basis of their prior year’s salary and defendants deny specifically that plaintiffs are entitled to have a contract of employment in writing giving them the salary to which they claim they are entitled and allege that they are only entitled to a contract for a salary which they obtained the year previous to the offering of the contract in question here.

Defendants deny specifically that the plaintiffs were compelled to employ counsel and deny that the sum of $5,000 is reasonable compensation to be paid their counsel, and deny that plaintiffs have no other plain, speedy and adequate remedy in the ordinary course of law.

So far as material here the answer set up an affirmative defense to the effect that if the plaintiffs are entitled to the increased salary for which they claim, that they may recover the same in an action at law.

In another affirmative defense defendants allege that they are authorized by law to exercise a discretion in fixing the rate of wages and the terms and conditions of employment of the teachers under section 75-1632, and that this discretion may not be controlled by mandamus.

As a further affirmative defense the defendants allege in substance that the defendants executed to plaintiffs checks for the lesser salary in accordance with the requirements of the law, and that the cheeks were accepted and cashed by the plaintiffs as payment for their services rendered in accordance with the contract of .employment.

The court after a hearing rendered judgment on the pleadings granting plaintiffs the relief which they sought. In general the court held that the Union Security provisions of the contract tendered to plaintiffs were null and void as against teachers who have tenure under the laws of the state. It ordered execution of contracts under the salary schedules provided in the Master Agreement.

The court expressly found that defendants appeared and made defense in this proceeding in good faith, and fixed the sum of $2,000 as and for a reasonable attorneys’ fee.

One of the main contentions on the appeal is whether the plaintiffs may proceed in mandamus, it being the contention of the defendants that under sections 93-9102 and 93-9103 the writ does not lie where there is a plain, speedy, and adequate remedy in the ordinary course of law, and it is the contention of defendants that such a remedy does exist in the ordinary course of law.

They point out that under section 75-1632, the Board of Trustees has the power and the duty to prescribe and enforce rules for the government of schools under their supervision, and to employ and discharge teachers, and to enter into all contracts of employment of teachers, with the right under section 75-4231 to fix the salaries and compensation of such teachers. The contention of defendants is that when the plaintiffs deleted from the contract the objectionable matter regarding Union Security they in effect made a counter offer to the defendants which was not accepted and that such being the case plaintiffs were entitled only to the benefits of section 75-2401 reading:

“After the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal so elected shall be deemed re-elected from year to year thereafter at the same salary.”

The plaintiffs’ position is that the Board of Trustees did fix the salary of the teachers pursuant to the Master Agreement; that their action in so doing was not affected by writing- into the contract void and illegal provisions with respect to Union Security.

That plaintiffs have no plain, speedy, or adequate remedy in the ordinary course of law is apparent from the fact that they are not in a position to sue in contract for the increased salaries because they have no written contract as the statute requires.

For this reason plaintiffs ask that the court compel the defendants by mandamus to execute the contract in accordance with the salary schedule. Other courts have held, under facts very similar to those here, that invalid and void provisions of a contract will be ordered by mandamus to be eliminated from the contract and the contract executed without such illegal provisions. Tolman v. Underhill, Cal. 1951, 229 Pac. (2d) 447, and Tolman v. Underhill, 39 Cal. (2d) 708, 249 Pac. (2d) 280, and see Pallas v. Johnson, 100 Colo. 449, 68 Pac. (2d) 559, 110 A.L.R. 1403, and State ex rel. United District Heating Inc. v. State Office Bldg. Comm., 124 Ohio St. 413, 179 N. E. 138, 80 A.L.R. 1376.

The Union Security Clause is no part of the consideration moving to the School District in the master agreement within the meaning of section 13-504, so- strongly relied on by amici curiae on motion for rehearing. But were we to say that the whole of the master agreement is void because of section 13-504 because it contains a void provision, the result would be no different.

The fact is that most of the teachers of defendant school district actually receive the increased salary provided for in the master agreement. Likewise that document shows that the school board was satisfied with the work of the plaintiff teachers but denied them the increase in salary solely because they refused to agree to the security provisions of the agreement. If we assume the master agreement is void in toto1 because of an invalid clause and if we assume that the clause relating to Union Security is invalid still plaintiffs are entitled to be treated the same as the other teachers SO' far as salary is concerned.

Hence, we come to the question whether the Union Security Clause in the contract is void and illegal as contended by plaintiffs. We hold that it is.

It is not competent for the school trustees to require union membership as a condition to- receiving the increased salary. So far as this case is concerned it is sufficient to say that the Legislature has not given the school board authority to make the discrimination sought to be imposed here.

We do not pass upon the point whether it would be competent for the Legislature to place such authority in the school trustees. There is respectable authority holding that such action by the Legislature would be unconstitutional. Thus in the note in 31 A.L.R. (2d) sec. 19, p. 1170, it is said: “Constitutional and statutory provisions granting the right of private industry to bargain collectively do not confer such right on public employers and employees.”

In Norwalk Teachers’ Ass’n v. Board of Education, 138 Conn. 269, 83 A. (2d) 482, 484, 31 A.L.R. (2d) 1133, the court had before it the question, among others, of whether the teachers’ association, which was a voluntary association and an independent labor union to which nearly all the teachers belonged, could engage in a strike. The court answered by saying:

“Under our system, the government is established by and run for all of the people, not for the benefit of any person or group. The profit motive, inherent in the principle of free enterprise, is absent. It should be the aim of every employee of the government to do his or her part to make it function as efficiently and economically as possible. The drastic remedy of the organized strike to enforce the demands of unions of government employees is in direct contravention of this principle. It has been so regarded by the heads of the executive departments of the states and the nation. Most of the text writers refer to one or more of the following statements by three of our recent presidents. They are quoted, for example, in 1 Labor Law Journal 612 (May, 1950) : ‘There is no right to strike against public safety by anybody anywhere at any time’ (Calvin Coolidge on the Boston police strike). This same strike was characterized by President Wilson as ‘an intolerable crime against civilization.’ President Franklin D. Roosevelt said in a letter to the president of the National Federation of Federal Employees on August 16, 1937: ‘Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. * * * [A] strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.’ As the author of the article cited says, ‘The above statement by President Roosevelt, who certainly was no enemy of labor unions, epitomizes the answer to the problem. It seems to be axiomatic’.”

The court concluded by saying: “That right has usually been tested by an application for an injunction forbidding the strike. The right of the governmental body to this relief has been uniformly upheld. It has been put on various grounds: public policy; interference with governmental function; illegal discrimination against the right of any citizen to apply for government employment (where the union sought a closed shop).”

Other questions were considered by the court in that case. The court pointed out that some of the questions were too general to permit of a categorical answer, but the court did say that “an agreement by the board to hire only union members would clearly be an illegal discrimination.”

The National Labor Relations Act expressly excepts as employers the United States and any state or political subdivision thereof. 29 U.S.C.A. sec. 151, and see 56 C.J.S. Master and Servant sec. 28(7), p. 127. That is the rule generally as to public employment unless the statute provides otherwise. See 31 Am. Jur., Labor, sec. 56, p. 429; Petrucci v. Hogan, 5 Misc. (2d) 480, 27 N.Y.S. (2d) 718; City of Los Angeles v. Los Angeles Bldg. & Construction Trades Council, 94 Cal. App. (2d) 36, 210 Pac. (2d) 305; City of Pawtucket v. Pawtucket Teachers’ Alliance, R. I. 1958, 141 A. (2d) 624; Manchester v. Manchester Teachers’ Guild, 100 N. H. 507, 131 A. (2d) 59; and compare Mugford v. Mayor and City Council of Baltimore, 185 Md. 266, 44 A. (2d) 745, 162 A.L.R. 1101.

The case of People by Hoyne ex rel. Fursman v. City of Chicago, 199 Ill. App. 356, had a similar question before it. There the Board of Education adopted a rule forbidding the employment of teachers affiliated with the labor union. The court held that this was a discrimination between different classes of citizens conferring special privileges upon a class or group less than all. On consideration of the same question in 278 Ill. 318, 116 N. E. 158, L.R.A. 1917E, 1069, the Supreme Court of Illinois reached a different conclusion and held that it was competent for the board of education of the City of Chicago to enforce the rule prohibiting* the teachers from becoming members in a labor union. Whether we would agree with the court’s opinion in that case, we need not here determine. The court upheld the rule there involved because the board of education recited in the rule that membership in a union was inimical to proper discipline, prejudicial to the efficiency of the teaching force and detrimental to the welfare of the public school system. The board of education in that case was at least consistent. It refused to employ teachers who were members of a labor union. Here the defendant board does not refuse employment for not belonging to the union, but seeks to impose a penalty for not becoming members by seeking to withhold the increase in salary to those who do not belong to the union.

The same is true in the case of Seattle High School Chapter No. 200, of the American Federation of Teachers v. Sharples, 159 Wash. 424, 293 Pac. 994, 72 A.L.R. 1215, relied on by defendants. That case differs from this because in that case the very employment of the teachers was made dependent upon their belonging to a labor union. Here the defendant Board is willing to employ the plaintiffs whether they belong to the Union or not but they undertake to deprive the plaintiffs of the increased salary unless they become members of the labor union. In other words, the plaintiffs’ employment, according to the board of trustees of the defendant School District, does not depend upon their affiliation with the union but only their right to the increased salary. Hence, for this reason the Washington case is not controlling here.

For the purposes of this case it is sufficient to say that the School Trustees have no authority or power to discriminate between the teachers employed by it as to the amount of salary paid to each because of their membership or lack of membership' in a labor union. The School Trustees have no authority to invade that field. As well might it be argued that the Board of School Trustees might provide that the increased salary shall not be allowed to those who do not affiliate with a certain lodge, service club, church or political party.

It is our view that the trial court was right in its ruling, that the clause complained of here and which was deleted by the teachers is void and illegal, and that the writ of mandamus issued by the trial court should in all respects be affirmed unless there is merit in defendants’ contention as to attorneys’ fees.

The contention of defendants is that the attorneys’ fees must be pleaded and proved. There is no question but what they are properly pleaded here. The complaint asks for $5,000. That allegation was put in issue by the answer of the defendants, and it is the contention of the defendants that they were entitled to a jury trial on that issue and that it could not be settled by the court on motion for judgment on the pleadings. As above noted, the court allowed the sum of $2,000 as a reasonable attorneys’ fee. Defendants contend that plaintiffs offered no proof of the employment of an attorney or as- to the amount of money expended in the employment of an attorney. Defendants rely upon the cases of State ex rel. Shea v. Cocking, 66 Mont. 169, 213 Pac. 594, 28 A.L.R. 772; State ex rel. Golden Valley County v. District Court, 75 Mont. 122, 242 Pac. 421; State ex rel. Phillips v. Ford, 116 Mont. 190, 151 Pac. (2d) 171; and State ex rel. Great Falls Housing Authority v. City of Great Falls, 110 Mont. 318, 100 Pac. (2d) 915.

It is the plaintiffs’ position that since the judge observed the extent of the services rendered by counsel the case falls within the rule of State ex rel. Lynch v. Batini, 103 Mont. 353, 62 Pac. (2d) 565, 569, where the court said: “While the court in such a proceeding may secure the aid of expert testimony, it is not bound to follow it when such testimony is received. Here counsel signed the petition and appeared on behalf of the relator throughout the entire course of this proceeding; he performed much of his labor in the presence of this court; the pleadings also evidence it. For us to hold, before we could find that some service has been performed, that relator should have proved all the service rendered by his counsel, would be to insist on an idle act not required by law. (Sec. 8761, Rev. Codes [1935, now R.C.M. 1947, see. 49-124].)”

Plaintiffs’ contention on this point also must be sustained. The judgment is affirmed.

MR. JUSTICE CASTLES concurs.