Male v. Grand Rapids Education Ass'n

295 N.W.2d 918, 98 Mich. App. 742, 1980 Mich. App. LEXIS 2794

• Court: Michigan Court of Appeals
• Decided: July 22, 1980
• Docket: Docket 43290
• Status: Published

Opinions

R. B. Burns, J.

Plaintiff, David Male, is a certified tenured teacher employed by the Grand Rapids public school system. In the course of his employment, plaintiff pays a yearly financial responsibility fee which is assessed by defendant Grand Rapids Education Association (GREA).¹ Defendant GREA, an affiliate of defendant Michigan Education Association (MEA), is the exclusive bargaining representative for teachers employed by the Grand Rapids school system for kindergarten through twelfth grade. In 1975, defendant GREA informed plaintiff that his financial responsibility fee for the 1975-1976 school year would include a ten-dollar assessment for a mandatory teacher assistance program fund (TAP Fund). Because plaintiff believed that the TAP Fund was intended to aid teachers who engaged in illegal strikes, plaintiff refused to pay the portion of his financial responsibility fee that represented the TAP Fund assessment.

Under the terms of the parties’ collective bargaining agreement, if a teacher fails to pay the financial responsibility fee the teacher’s employment will be terminated by the defendant Board of Education of the City of Grand Rapids. In March 1976, defendant GREA filed charges against plaintiff with the defendant Board of Education, seeking the discharge of plaintiff for his refusal to pay the TAP Fund assessment. The Board of Education, with the concurrence of plaintiff and defendants GREA and MEA, resolved not to hold a tenure hearing until the legality of the TAP Fund assessment was adjudicated.

This action for declaratory judgment was brought in the Kent County Circuit Court for a determination on the legality of the TAP Fund assessment.² The trial court held that the TAP Fund is a strike fund and that contributions to it, forced under threat of discharge, are illegal. The trial court denied a motion by plaintiff to certify the suit as a class action and later held that attorney fees were not awardable. Defendants GREA and MEA appeal the portion of the trial court’s judgment declaring the TAP Fund an illegal strike fund, and plaintiff cross-appeals the court’s refusal to certify the suit as a class action and the denial of attorney fees.

The trial court began its inquiry into the legality of mandatory TAP Fund assessments by noting the stated purpose of the fund which is:

"To provide direct assistance to teachers in the form of financial support if the employment has entirely disappeared or is temporarily unavailable either because of the concerted act of the employer or employees.”

As observed by the court, the parties have stipulated that "[t]he Tap Fund may be used to assist public school teachers engaged in strikes against their public employers and has in fact been so used”.

Based on the fact that the TAP Fund provides financial assistance to teachers engaged in strikes against their public employers, the trial court held that the fund is a strike fund. And, based on the fact that strikes by public employees, including public school teachers, are prohibited under Michigan law, MCL 423.202; MSA 17.455(2),³ the court further found that mandatory assessments for this strike fund are illegal and teachers cannot be compelled under threat of discharge to pay such assessments as part of the financial responsibility fee.⁴

We agree with the holding of the trial court and find no merit in defendants’ argument that the TAP Fund furnishes support only to the teachers and not to strikes. As the trial court noted, the mere existence and availability of the fund is a powerful force and it is only logical to assume that teachers will be more likely to strike where there is strong financial backing.

Further, the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., explicitly prohibits the authorization of strikes by persons in authority. MCL 423.203; MSA 17.455(3), provides in part:

"No person exercising any authority, supervision or direction over any public employee shall have the power to authorize, approve or consent to a strike by public employees, and such person shall not authorize, approve or consent to such strike.”

As the system presently exists, GREA has the power, under the collective bargaining agreement, to compel the Board of Education to discharge teachers who refuse to support the TAP Fund. As the fund itself supports and instigates teacher strikes, enforcement of mandatory contributions to the fund is tantamount to approval of such activities in direct contravention of the act.

The trial court, therefore, did not err in holding that GREA could not enforce mandatory assessments for the TAP Fund.

Though the trial court found that payment of the TAP Fund assessment cannot be compelled under threat of discharge, the court refused plaintiffs request to order the refund of all the assessments collected by GREA. Plaintiffs request was made in the form of a petition to certify the action as a class action. The court’s refusal was based on two grounds: (1) no affidavits had been submitted joining other persons to the action, and (2) before April 1975, contributions to the TAP Fund were made on a voluntary basis. The court stated that it "hesitates to render an opinion in favor of those persons who have rendered no protest particularly on what they contributed on a voluntary basis”.

Class actions are provided for in GCR 1963, 208, which states in part:

".1 If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is

"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”

In Grigg v Michigan National Bank, 405 Mich 148, 167; 274 NW2d 752 (1979), the Michigan Supreme Court delineated the requirements which must be met in order to maintain a class action pursuant to GCR 1963, 208.1(3):

"1. There must be an identifiable class;

2. The number of persons in the class must be so large that it would, be impracticable to bring them all before the court;

"3. The person or persons seeking to represent the class must be members thereof;

"4. The interests of the class must be adequately represented;

"5. The right or rights sought to be enforced must be several;

"6. There must be a common question of law or fact affecting the several rights, and

"7. A common relief must be sought.”

After a review of the record, we find that the present case meets all of the above-noted criteria, as well as the further requirement that the maintenance of the case as a class action must serve the "convenient administration of justice”. Griggs, supra, 184.

In this action, the rights sought to be enforced are several, as each teacher has a separate claim to a refund of his assessment; there is a common question of law involved, the legality or illegality of the assessment; and common relief is sought in the form of a petition for declaratory judgment that the assessment is illegal.

It is undisputed that plaintiff is a member of the class whose interest he seeks to represent, however, defendants argue that a class action is inappropriate because only the seven or eight teachers who paid the assessment without joining GREA would be eligible to be members of the class. Defendants maintain that members of GREA, numbering approximately 1,813, should be assumed to have voluntarily paid the assessment by virtue of their voluntary association with GREA. We cannot conclude that support for illegal strike activities automatically follows voluntary association with GREA, and therefore we hold that all teachers in the bargaining unit would be eligible to join the class action. We also find that plaintiff will adequately represent the class, as there is no indication that plaintiff will not continue to pursue vigorously the rights of the class through qualified counsel.

The requirement that a class action be in accordance with the convenient administration of justice refers chiefly to the practical problems involved in conducting an action as a class action. See Grigg, supra, 184-189. Though the number of persons potentially in the class, approximately 1800, is too large to be conveniently joined by plaintiff, it is not too large to be managed by the court, as each member is known to defendants and is easily informed of the action. Moreover, the computation of damages is simple. Each member will be entitled to twenty dollars⁵ (ten dollars for each of the two years that the mandatory assessment was collected from every teacher except plaintiff). The fact that each class member will only be entitled to a small recovery makes the action one particularly suited for being brought as a class action. Bond v Ann Arbor School Dist, 383 Mich 693; 178 NW2d 484 (1970).

Finally, we note the concern which the trial court expressed because no other members of the class had submitted affidavits and the reluctance of the trial court to render an order that required the refund of assessments to GREA members who have not protested the assessments and who had voluntarily made payments to the TAP Fund. These concerns are met by the fact that a class action brought under GCR 1963, 208.1(3) has been used as a permissive joinder device:

"On the basis of the foregoing, we concluded that the judgment in a spurious class action binds only those similarly situated individuals who affirmatively indicate to the court their desire to be included in the class (to 'opt in’). This insures maximum protection of the rights of the absent class members in the cases where they need it most — cases in which the rights involved are not common but several and distinct in nature and in which the only connection between the members is a common question of law or fact.” Grigg, supra, 174.

Since this litigation would be conducted as a form of permissive joinder of parties, the fact that some members may want to allow GREA to keep their share of the assessment is not significant. Only those members who affirmatively opt into the action shall be bound by it. And, as stated by this Court in Adams v Wayne County Treasurer, 71 Mich App 275, 285; 248 NW2d 232 (1976), "merely because other members of the class have failed to intervene is no reason to disqualify the present named plaintiffs as class representatives”.

Absent an exception, attorney fees are not awardable unless expressly authorized by statute or court rule. State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71; 212 NW2d 821 (1973). The trial court’s decision not to award attorney fees was based on its finding that the "common fund” exception was not applicable in that plaintiff has sought to prevent the forced accumulation of assets rather than having sought to protect a pool of assets from depletion. Since we have held that the mandatory assessments were illegal and that a refund of the assessments is appropriate, an award of reasonable attorney fees from the TAP Fund is permissible. In Bond, supra, the Supreme Court awarded attorney fees in a situation very closely resembling the present one. The Supreme Court stated:

"One of the reasons for requiring a refund of the fees in this case is to provide a fund from which can be paid a reasonable attorney fee to the attorneys for plaintiffs.

"We are not unmindful of the fact that the fees which were exacted were used by defendant or of the relative smallness of each fee. Nevertheless, where the parties are arrayed in a lawsuit, as here, in which both sides undoubtedly conceive themselves to be proceeding in the public interest, some balance must be struck so that the side prevailing is not compelled to bear the burdensome costs of achieving a favorable decision.” Bond, supra, 704-705.

In Grigg, supra, the Supreme Court recognized that the trial court may allow or dismiss the class portion of a suit depending upon the number of class members who opt in and that this will affect the award of attorney fees.

"The plaintiff in the case at bar has only requested an award of 'reasonable’ attorney fees. Reasonableness of the fees would depend primarily upon the amount of time the attorneys spent on the case and upon the nature and extent of the benefit conferred upon the intervening class members. Such a fee, plus costs, would be payable from the proceeds of the judgment prior to computation for distribution.” Grigg, supra, 192.

Accordingly, we remand to the trial court with the following instructions:

1) The court shall set a reasonable time period within which class members must opt in order to be included in the class;

2) The court may in its discretion order that plaintiff, at his expense, issue such notice as the court may direct;

3) The court shall determine whether, according to the principles of equity, plaintiff should be awarded reasonable attorney fees.

Mackenzie, J., concurred.

1 The financial responsibility fee is the equivalent of the dues of the GREA and is paid by any teacher who elects not to join the GREA.

2 As summarized by the trial court, the plaintiff requested:

"[0]ne, a Declaratory Judgment that the strike fund assessment made for the purpose of supporting strikes by public employees is illegal and that plaintiff cannot be compelled under the threat of discharge to pay such an assessment or be discharged for refusing to pay it; two, a Declaratory Judgment that the strike fund assessment is not properly a part of the mandatory financial responsibility fee under the Collective Bargaining Agreement between defendants GREA and the Board of Education, and that plaintiff cannot be discharged for his refusal to pay that assessment; and three, a Judgment of this Court ordering defendant GREA to refund to all teachers in the Grand Rapids public school system the illegal strike fund assessments collected to date (the latter is in the role of a class action).”

3 See, Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1977), and Holland School District v Holland Education Ass’n, 380 Mich 314; 157 NW2d 206 (1968).

4 The court’s determination applies equally to union dues which are collected from the teacher members of defendant GREA.

5 See infra for the effect that an award of reasonable attorney fees might have on this sum.