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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 5715

June 2, 1980


Exclusive remedies of public employment relations act


Duty of board member to observe school law


Dismissal of striking teacher

The public employment relations act contains exclusive remedies for violation of its provisions. Neither a teacher who is dismissed for striking nor a member of a board of education dismissing a striking teacher may be charged with a criminal offense arising therefrom.

Honorable Ed Fredricks

State Senator

The Capitol

Lansing, MI 48909

You have requested my opinion on two questions which may be stated as follows:

1. Is a public school employee who is found to have violated 1947 PA 336, guilty of a misdemeanor and subject to the punishment prescribed pursuant to 1931 PA 328?

2. Can a school board member be charged with a criminal offense for discharging a tenured teacher who strikes if the school board does not follow the procedure provided in 1937 PA Ex Sess 4?

1947 PA 336, MCLA 423.201 et seq; MSA 17.455 et seq, is known as the public employment relations act (hereafter PERA). 1947 PA 336, supra, Sec. 2, provides that no person who holds a position by appointment or employment in the government of the State of Michigan or in the public school service shall strike. 1947 PA 336, supra, Sec. 6 reads, in part, as follows:

'Notwithstanding the provisions of any other law, any person holding such position who, by concerted action with others, and without the lawful approval of his superior, wilfully absents himself from his position . . . for the purpose of inducing, influencing or coercing a change in the conditions or compensation . . . of employment shall be deemed to be on strike . . . but the person, upon request, shall be entitled to a determination as to whether he did violate the provisions of this act. . . . If the employee involved is held to have violated this law and his employment terminated or other discipline imposed, he shall have the right of review to the circuit court having jurisdiction of the parties . . .' (emphasis added)

It is clear that 1947 PA 336, supra, Sec. 6 imposes a penalty by its terms and as construed by the Michigan Supreme Court in Rockwell v Crestwood School District, 393 Mich 616, 628; 227 NW2d 736, 741 (1975), where the court stated:

'Section 6 of the PERA empowers the officer or body generally having disciplinary authority over an employee to terminate the employment of or impose other discipline on an employee who strikes in violation of the PERA . . .'

The term 'penalty' has been held to signify a punishment inflicted by law for its violation. Stitt v Locomotive Engineers' Mutual Protective Association, 177 Mich 207; 142 NW 1110 (1913). It is evident that the legislature has imposed a penalty, discharge or other discipline, within the same statute which prohibits strikes by public employees.

In Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104; 252 NW2d 818 (1976), the Michigan Supreme Court held that a public employer could not maintain a civil damage action against the union representing its striking public employees, because such civil damage action was inconsistent with the provisions of 1947 PA 336, supra.

The Michigan Supreme Court also noted in Lamphere Schools, supra, that the title of 1947 PA 336, supra, described the act as an act to, inter alia, 'prescribe means of enforcement and penalties for the violation of the provisions of this act.' The court then stated:

'Thus, it requires little extrapolation to ascertain the Legislature's intent in enacting the PERA. The Legislature intended to proscribe strikes by public employees and to prescribe the means of enforcement and penalties for such strikes.' (Footnote Omitted) Lamphere Schools, supra, 400 Mich 104, 111; 252 NW2d 818, 821.

It should also be noted that 1931 PA 328, Sec. 9, MCLA 750.9; MSA 28.199, provides as follows:

'When the performance of any act is prohibited by this or any other statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing of such act shall be deemed a misdemeanor.' (Emphasis added.)

The legislature has also prescribed the penalty for misdemeanors not fixed by statute in 1931 PA 328, Sec. 504, MCLA 750.504; MSA 28.772.

In addition, in Lamphere Schools, supra, the Michigan Supreme Court concluded the following regarding the exclusivity of sanctions contained in 1947 PA 336, supra, Sec. 6:

'. . . But the foregoing emphasized language of Sec. 6 of the PERA reflects legislative intent that the statutorily permitted discipline--discharge should be the unitary and exclusive remedies available to public employers in dealing with illegal strikes by public employees in violation of the PERA's Sec. 2 strike prohibition.' (Footnote Omitted) 400 Mich 104, 114; 252 NW2d 818, 822.

This holding of the exclusivity of the sanctions provided in 1947 PA 336, supra, Sec. 6 is confirmed by a review of the statute's legislative history. The court noted that 1947 PA 336, supra, Sec. 8, which provided that it was a misdemeanor for any person not a public employee to incite or urge a public employee to strike, was deleted from 1947 PA 336, supra, by 1965 PA 379. The court addressed the consequences of this deletion as follows:

'. . . [T]he Legislature's flat-out elimination of Sec. 8 bespeaks a conscious legislative intent to nullify even the remotest possibility of such actions, criminal or civil.

'Hence, it once more becomes evident that our Legislature was not only concerned with specifying labor management obligations in the PERA, but was pre-eminently concerned with providing the exclusive sanctions for any violations of those obligations.' (emphasis added) 400 Mich 104, 117; 252 NW2d 818, 824.

It is my opinion, therefore, in answer to your first question, that a public school employee who is found to have violated 1947 PA 336, Sec. 2, supra, is not guilty of a misdemeanor.

In response to your second question, it is necessary to consider the following applicable provisions of 1937 PA Ex Sess 4, MCLA 38.71 et seq; MSA 15.1971 et seq:

'Discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided . . .' 1937 PA Ex Sess 4, supra, art 4, Sec. 1.

'Failure of any member of a controlling board to comply with provisions of this act shall be deemed a violation of the law and shall subject said member to the same penalty as prescribed for a violation of the general school law.' 1937 PA Ex Sess 4, supra, art 9, Sec. 1.

The School Code of 1976, 1976 PA 451, Sec. 1804, MCLA 380.1804; MSA 15.41804, makes any violation of its provisions a misdemeanor punishable by a fine of not more than $500, imprisonment for not more than 3 months, or both. The requirement that a school board observe the procedural steps outlined in 1937 PA Ex Sess 4, supra, art 4, Sec. 1 before discharging a teacher conflicts with the provisions of 1947 PA 336, supra, Sec. 6 which allows a tenured teacher who strikes to be discharged pending a hearing. The Michigan Supreme Court addressed the conflict between these two statutory provisions in Rockwell, supra, and stated:

'. . . [b]ut to the extent there is conflict--and manifestly there is conflict as the teachers' tenure act provides that discipline may be imposed only after charges, notice, hearing and determination, while the PERA contemplates imposition of discipline before a determination of whether the act has been violated and provides for a hearing only on request of the employee after the imposition of discipline--the PERA is to govern '[n]otwithstanding the provisions of any other law". (emphasis added) 393 Mich 616, 628, 629; 227 NW2d 736, 741.

The Michigan Supreme Court has ruled that 1947 PA 336, supra, is the governing law to the extent that it conflicts with 1937 PA Ex Sess 4, supra:

'This construction of the two acts will not enable MERC to circumvent, at the request of school boards, the protection provided tenured teachers by the teachers' tenure act. If the school board claims that a teacher was discharged for striking, the appeal is to the circuit court, not to MERC. If the school board claims that the teacher was discharged for a reason other than striking, MERC's jurisdiction is invoked only if the teacher claims he was discharged for activity protected under the PERA and the teacher himself files an unfair labor practice charge with the MERC; such a charge would not preclude the teacher from also defending against the discharge at a teachers' tenure act hearing on the ground it was not supported by reasonable and just cause.' 393 Mich 616, 632, 633; 227 NW2d 736, 743.

Therefore, the procedural requirements of 1937 PA Ex Sess 4, supra, are inapplicable to a situation where a teacher is discharged under 1947 PA 336, supra, Sec. 6.

It is, therefore, my opinion, in response to your second question, that a school board member is not subject to a criminal penalty if the board of education discharges a tenured teacher who strikes without observing the procedure provided in 1937 PA Ex Sess 4, supra.

Frank J. Kelley

Attorney General

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