                            STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN H. FARR, CAROLYN D. SCHUTTLER,                            UNPUBLISHED
and BYRON PRANGE,                                               February 24, 2015

              Plaintiffs,
and

TRACY LEE,

              Plaintiff-Appellant,


v                                                               No. 319236
                                                                Clinton Circuit Court
ST. JOHNS PUBLIC SCHOOLS,                                       LC No. 12-011074-CD

              Defendant-Appellee,
and

ST. JOHNS BOARD OF EDUCATION,

              Defendant.


Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.

PER CURIAM.

       Plaintiff Tracy Lee (Lee) appeals as of right an order granting summary disposition in
favor of defendant St. Johns Public Schools (SJPS) pursuant to MCR 2.116(C)(10). We reverse
and remand for further proceedings.

        In the St. Johns School District from August 2009 to August 2012, the terms of
employment for unionized teachers were governed by the St. Johns Education Association
Master Agreement, which was a collective bargaining agreement that we shall refer to as the
CBA for purposes of this opinion. The CBA was between defendant St. Johns Board of
Education (the board), the Ingham/Clinton Education Association, and the St. Johns Education
Association. Plaintiffs were tenured teachers working at the Wilson Center Alternative
Education High School (Wilson Center), a public alternative school in the St. Johns School
District. Plaintiffs were not union members; however, they alleged and there was some
documentary evidence showing that their employment was governed by, and that they were

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treated consistent with, the same employment terms as those contained in the CBA. Plaintiffs
maintained, in part, that their small group at the Wilson Center had, in essence, engaged in
collective bargaining with administration regarding their terms of employment, resulting in an
agreement that their employment would be controlled by the language in the CBA.
Alternatively, plaintiffs contended that, despite not being dues-paying union members, they were
directly governed by the CBA under its broad definition of bargaining-unit employees covered
by the CBA’s terms.

        With respect to layoff procedures, the CBA generally required probationary teachers to
be laid off first in order of seniority, with tenured teachers to follow, also in order of seniority.
On June 25, 2012, defendants placed plaintiffs on layoff status due to budget constraints, despite
the assertion by plaintiffs that they had greater seniority than other probationary and tenured
teachers serving in the school district who were not subject to layoffs. Plaintiffs brought suit
against SJPS and the board, alleging breach of contract. Defendants responded that plaintiffs
were not union members covered by the CBA and its seniority rules in regard to staff reductions.
Instead, defendants claimed that plaintiffs were subject to MCL 380.1248, a recent legislative
enactment that required consideration of performance and not seniority in the context of layoff
determinations unless a preexisting collective bargaining agreement demanded otherwise.

        Initially, the trial court dismissed plaintiffs’ claims against the board under MCR
2.116(C)(1), holding that plaintiffs could not sue the board under Michigan law. This ruling has
not been appealed. Subsequently, SJPS filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that plaintiffs were not actual members of the bargaining unit covered by
the CBA and that MCL 380.1248 did not allow it to take plaintiffs’ seniority into consideration
when reducing staff. The trial court concluded that plaintiffs were not protected by the CBA
because they were not union members or employees within the bargaining unit and that even if
plaintiffs banded together to contract with the administration, the formation did not constitute a
legally-recognizable collective bargaining unit. The trial court found that SJPS properly laid
plaintiffs off under the dictates of MCL 380.1248 according to performance standards, and the
court thus summarily dismissed the lawsuit. Lee alone challenges that ruling.

       We review de novo the trial court’s decision on a motion for summary disposition, as
well as questions of statutory construction. Caron v Cranbrook Ed Community, 298 Mich App
629, 635; 828 NW2d 99 (2012). In Whitman v City of Burton, 493 Mich 303, 311-312; 831
NW2d 223 (2013), the Michigan Supreme Court recited the principles governing statutory
construction:

               When interpreting a statute, we follow the established rules of
       statutory construction, the foremost of which is to discern and give effect to the
       intent of the Legislature. To do so, we begin by examining the most reliable
       evidence of that intent, the language of the statute itself. If the language of a
       statute is clear and unambiguous, the statute must be enforced as written and no
       further judicial construction is permitted. Effect should be given to every phrase,
       clause, and word in the statute and, whenever possible, no word should be treated
       as surplusage or rendered nugatory. Only when an ambiguity exists in the
       language of the statute is it proper for a court to go beyond the statutory text to
       ascertain legislative intent. [Citations omitted.]

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        In 2011, the Legislature enacted 2011 PA 102, codified at MCL 380.1248, which is
applicable to teachers and which controls, in part, “policies regarding personnel decisions when
conducting a staffing or program reduction or any other personnel determination resulting in the
elimination of a position[.]” MCL 380.1248(1). Subsection (1) of MCL 380.1248 mandates, in
general, consideration of a teacher’s performance, accomplishments and contributions, and
specialized training in making staff reduction decisions, rather than length of service and tenure
status. However, MCL 380.1248(1) is subject to subsection (2) of the statute, which provides:

                If a collective bargaining agreement is in effect for employees of a school
       district or intermediate school district as of the effective date of this section and if
       that collective bargaining agreement prevents compliance with subsection (1),
       then subsection (1) does not apply to that school district or intermediate school
       district until after the expiration of that collective bargaining agreement.

        The dispute here concerns whether MCL 380.1248(1) applies, with its rules requiring
consideration of performance over seniority, or whether the exception in MCL 380.1248(2) was
implicated. In conducting the analysis, the parties and the trial court focused on whether
plaintiffs were covered by the CBA. We conclude that the parties and the trial court all operated
under a mistaken interpretation of MCL 380.1248(2).

        The plain and unambiguous language of MCL 380.1248(2) reflects that it provides a
mechanism to determine whether a particular school district must employ the new performance-
related criteria found in subsection (1) of the statute, not whether a particular employee is subject
to the new criteria. The clear language of MCL 380.1248(2) poses two broad-based, generally-
applicable questions. First, it asks whether a collective bargaining agreement was in effect for
employees of a school district as of the effective date of the statute. Here, it is indisputable that
the CBA was in effect for employees of the St. Johns School District at the time the statute
became effective. This initial question reflected in the statute does not seek an answer in terms
of whether a collective bargaining agreement was in place for certain employees or a particular
teacher; the statute is not structured to address individual circumstances but rather to simply
answer the more expansive question regarding whether a school district must follow the new
performance-related criteria.

         The second question posed by MCL 380.1248(2) asks whether the collective bargaining
agreement prevented compliance with the new performance-related criteria, which again must be
answered in the affirmative, given the language in the CBA imposing strict seniority rules in
determining those teachers subject to being laid off. Because we answered “yes” to both
questions, the new performance-related criteria “do[] not apply to [the St. Johns] school district .
. . until after the expiration of th[e] collective bargaining agreement.” MCL 380.1248(2)
(emphasis added). MCL 380.1248(2) does not state that, in situations when the two questions
are answered in the affirmative, the new performance-related criteria do not apply to the
employees covered by the collective bargaining agreement or to the school district in
relationship to such employees; instead, subsection (2) broadly and simply provides that the new
criteria do not apply “to that school district.” Accordingly, assuming that plaintiffs were not
covered by the CBA and were not a legally-recognizable collective bargaining unit in their own
right, the new performance-related criteria relative to staff reductions were not yet applicable to
or within the St. Johns School District. Plaintiffs were thus governed by whatever contract

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existed between themselves and SJPS, which apparently was a contract that fully incorporated
the terms of the CBA. The trial court, therefore, erred in dismissing plaintiffs’ lawsuit, but we
remand only with respect to Lee’s action, as the remaining plaintiffs did not appeal the dismissal.

       To the extent that other issues and arguments were raised below, e.g., exhaustion of
administrative remedies and alleged compliance with seniority rules when Lee was laid off, they
were not addressed by the trial court in light of its ruling, and they may be visited on remand
should SJPS wish to pursue the matters.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction. Having fully prevailed on appeal, Lee is awarded taxable costs pursuant to MCR
7.219.



                                                            /s/ Michael J. Riordan
                                                            /s/ William B. Murphy
                                                            /s/ Mark T. Boonstra




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