Docket No. 125439.
Decided April 18, 1991; approved for publication July 30, 1991, at 9:00 A.M.
Charles G. Hoffman, for the plaintiffs.
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston Waldman, P.C. (by Eileen Nowikowski and Michael D. McFerren), for the defendant.
Before: MURPHY, P.J., and BRENNAN and MARILYN KELLY, JJ.
Plaintiffs appeal as of right a January 8, 1989, order granting summary disposition in favor of defendant and dismissing plaintiffs' fair-representation claim. We affirm.
The facts are undisputed. The ten plaintiffs are all corrections officers at the Kinross Correctional Facility and are members of the bargaining unit represented by defendant. In March 1988, plaintiffs, as a class, filed a grievance with defendant, claiming that they were performing work at a higher classification than that for which they were being paid. The union appealed the claim through the third step of the grievance procedure, but the claim was again denied. On August 17, 1988, the union sent plaintiff Bonneville a letter explaining its decision not to bring the grievance to arbitration, which would have been the next step in the grievance procedure. The letter stated that plaintiffs had thirty days in which to file a written appeal regarding the union's decision not to arbitrate.
That same month, plaintiffs filed a complaint in the Chippewa Circuit Court, alleging that defendant had breached its duty of fair representation, which it owed to them as members of that organization, by not pursuing the matter through arbitration. Defendant then filed a motion for summary disposition, claiming that the court lacked subject-matter jurisdiction because plaintiffs failed to exhaust their administrative remedies. The trial court agreed with defendant, and granted its motion for summary disposition pursuant to MCR 2.116(C)(4) and (10).
On appeal, plaintiffs claim that the trial court erred in granting summary disposition to defendant on the ground that plaintiffs failed to exhaust their administrative remedies before bringing their claim of breach of the duty of fair representation in circuit court. We disagree.
Plaintiffs, as employees of the Department of Corrections, are members of the state classified civil service. As such, the terms and conditions of plaintiffs' employment are regulated by the Civil Service Commission, which has plenary and absolute authority in that respect, Const 1963, art 11, § 5. The commission determines the procedures by which a grievance is reviewed. Viculin v Dep't of Civil Service, 386 Mich. 375, 393; 192 N.W.2d 449 (1971); Doster v Dep't of Mental Health, 161 Mich. App. 436, 441; 411 N.W.2d 725 (1987); James v Dep't of Mental Health, 145 Mich. App. 229, 232; 377 N.W.2d 824 (1985); Samuel v Dep't of Mental Health, 140 Mich. App. 101, 109; 364 N.W.2d 294 (1985).
The commission has set up an Employee Relations Policy (ERP) that establishes a system of collective bargaining for civil service employees. Under that policy, the union chosen as the exclusive bargaining representative has a duty of fair representation. ERP, § 6-8.2. A breach of that duty of fair representation is considered to be an unfair labor practice. ERP, § 6-11.1; O'Keefe v Dep't of Social Services, 162 Mich. App. 498; 413 N.W.2d 32 (1987). Complaints against the union are to be filed with the director of the commission. ERP, § 6-12.1. In addition, the commission has established an administrative procedure for the processing of complaints of unfair labor practice. ERP, § 4-101 through § 4-501. James, supra, p 233.
It is well established that where an administrative grievance procedure is provided, exhaustion of that remedy, except where excused, is necessary before review by the courts. MCL 24.301; MSA 3.560 (201). O'Keefe, supra, pp 505-506; Provincial House, Inc v Dep't of Social Services, 167 Mich. App. 1, 10; 422 N.W.2d 241 (1988). Samuel, supra, p 109. A court may review nonfinal agency actions only if a final agency decision or order would not provide the complainant with an adequate remedy. MCL 24.301; MSA 3.560(201); IBM v Dep't of Treasury, 75 Mich. App. 604, 609-610; 255 N.W.2d 702 (1977). The policy reasons for the rule of exhaustion of administrative remedies are as follows:
(1) an untimely resort to the courts may result in delay and disruption of an otherwise cohesive administrative scheme; (2) judicial review is best made upon a full factual record developed before the agency; (3) resolution of the issues may require the accumulated technical competence of the agency or may have been entrusted by the Legislature to the agency's discretion; and (4) a successful agency settlement of the dispute may render a judicial resolution unnecessary. [ IBM, supra, p 610.]
Plaintiffs admit that they did not exhaust their administrative remedies, but contend that resort to administrative procedures was optional because the circuit court has concurrent jurisdiction with the administrative bodies in this area. In support of their position, plaintiffs rely on Demings v Ecorse, 423 Mich. 49; 377 N.W.2d 275 (1985), arguing that the rationale in Demings is applicable to the present situation. However, we find plaintiffs' reliance on Demings misplaced.
In Demings, our Supreme Court held that the circuit court had concurrent jurisdiction with the Employment Relations Commission over claims of breach of a duty of fair representation brought under the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. Demings, supra, pp 56-57. The Court reasoned that because the PERA was patterned after the National Labor Relations Act, 29 U.S. 151 et seq., which allows for concurrent jurisdiction, the courts of this state have concurrent jurisdiction under the PERA as well. Demings, pp 59, 63, 68. However, classified civil service employees are not covered by the PERA. As discussed above, the Civil Service Commission has constitutionally mandated power over its employees and has ultimate authority to establish grievance procedures for them. Therefore, the rationale in Demings is inapplicable to the present situation.
Plaintiffs distinguish the instant case from O'Keefe, supra, asserting that because the plaintiff in that case had begun pursuing administrative remedies, he was obliged to see it through to completion. Plaintiffs argue that in situations of concurrent jurisdiction the rule of exhaustion of administrative remedies does not apply. However, we are unpersuaded by plaintiffs' claim of concurrent jurisdiction, and note that O'Keefe did not limit its holding as plaintiffs suggest.
Because plaintiffs did not show that their failure to exhaust administrative remedies was excused, the circuit court properly determined that it lacked subject-matter jurisdiction.