(dissenting). The issues in this circuit court action for money damages and in the earlier Michigan Employment Relations Commission unfair labor practice proceeding arise out of the city’s action in increasing the work week of the plaintiff employees of the city from 35 to 40 hours.
The MERC found that the city was guilty of an unfair labor practice in unilaterally increasing the work week. A cease and desist order was entered. The MERC declined to award back pay for the five additional hours because there had been no history of paying for additional hours worked in a normal work week.
The circuit court dismissed this action seeking money damages for alleged breach of the collective bargaining agreements in requiring the employees *460to work additional hours on the ground that further litigation is barred under the doctrines of res judicata and collateral estoppel. The Court of Appeals affirmed as does this Court.
This Court declares that the employees are barred under the doctrine of collateral estoppel from "re-litigating” in the circuit court "questions of fact already determined” by the MERC when it refused to award back pay as part of the remedial order for the city’s unfair labor practice.
The MERC construed the statute as permitting an award of back pay where the "employee in question would have been paid absent the unlawful unilateral action”.1 "Back pay,” in this construction of the act, means pay actually paid in the past — pay the employee would have received if there had been no unfair labor practice. The MERC concluded that where the unfair labor practice does not cause a stoppage of pay, there being no actual loss of pay, there is no past or back pay to award.
The MERC found as a fact that there was no evidence in the instant case that "payment has ever been made for the additional five hours work in a normal work week” (emphasis supplied). Since there had been no stoppage or actual loss of pay as a result of the unfair labor practice, there was no past or back pay.
It is apparent that the employees do not seek to relitigate the MERC factual determination that there was no history of payment for additional hours worked. Indeed, this was never in dispute. They contend rather that contract damages, in contrast with back pay to remedy an unfair labor practice, do not depend on a showing that the employees would have been paid for the additional *461hours even if the city had not increased the work week (and in consequence they are out-of-pocket compensation they would have received but for the unfair labor practice), and that the factual and legal issues respecting their claim for compensation in a law action are sufficiently different from those in an unfair labor practice proceeding that decision in the administrative proceeding does not preclude a law action.
Further, the employees contend that where a remedy is denied, not on the merits, but because it is not available in the forum where it is sought, the doctrine of collateral estoppel does not bar an action to obtain a remedy in a forum where it is available.
We agree that the contentions of the employees are sound and therefore dissent.
I
The Court declares the trial examiner concluded and the MERC agreed that there was no basis for awarding back pay in the absence of
" 'evidence to establish that under past practice, ordinance, or contract such payment has ever been made for the additional five hours work in a normal work week, or that such payment even could be made under existing city policy.’ ”
We agree with the foregoing statement.
The Court also declares if the employees were permitted to maintain an action for damages in the circuit court, that
"court would have to determine whether the legal basis of plaintiffs’ employment relation — past practice, ordinance, contract, or existing city policy — required *462such monetary reimbursement. But the trial examiner made these precise determinations in finding 'back pay’ was improper in this case.”
We agree that before awarding damages the circuit court would necessarily determine whether the asserted violation of the collective bargaining agreements provides a "legal basis” for a money judgment. The trial examiner did not determine, however, whether the "legal basis” of the employment relationship, the collective bargaining agreements, requires the entry of such a judgment. The MERC stated that the trial examiner did "not” "interpret the contract” and further stated that its decision affirming the trial examiner was "not a ñnding that [the collective bargaining agreements] have been, or have not been breached” (emphasis supplied).2
*463The Court further declares:
"the questions of fact necessary for a determination of 'damages’ by the trial court in this case would be identical to the questions of fact already determined by the trial examiner in his conclusion that 'back pay’ was improper in this case.”
Again, we disagree. Whether the employees had been theretofore paid for additional hours, although held to be determinative for back pay purposes, would not be determinative of their right to contract damages for being required, in asserted violation of the collective bargaining agreements, to work additional hours. The "questions of fact necessary for a determination of 'damages’ ” would not "be identical to the questions of fact already determined by the trial examiner in his conclusion that 'back pay’ was improper in this case”.
The question whether contract damages are recoverable would depend on whether it was a breach of the collective bargaining agreements to require the employees to work the additional hours or to require such additional work without compensation. Resolution of that question would depend on the terms of the agreements, all the pertinent facts, and the law of contracts, not on the historical fact whether "payment has ever been made” for additional hours in a normal work week or whether such payment could be made under existing city policy. Even if the employees *464had never been paid for working additional hours in a normal work week and could not be paid for those hours under existing city policy, damages would be recoverable if it was a breach of contract to require them to work the additional hours or to require such additional work without compensation.
II
The Court misperceives the issue in concluding that the MERC’s finding that payment for additional hours had not historically been made and could not be made under existing city policy precludes a determination in a law action that the employees are entitled to money damages under the collective bargaining agreements for the additional hours worked.
The true issue is whether, when employees assert that an employer’s action in requiring additional work constitutes both a breach of the collective bargaining agreement and an unfair labor practice, they are precluded from recovering money damages in a law action for breach of contract by seeking relief from the MERC and its decision in entering a cease and desist order but refusing to award back pay for the additional work.
When the city required the additional work without compensation, the employees protested, claiming that the city’s action constituted an unfair labor practice and a violation of the terms of the collective bargaining agreements.
An unfair labor practice charge must be filed with the MERC;3 an action for breach of contract, in the circuit court.
*465Plainly, if back pay had been awarded and it was the functional equivalent of money damages, a law action could not be maintained; the employees may not obtain a double recovery. Also, if the MERC had declined to award back pay on the ground that the city had not required the employees to work the additional hours (e.g., they had as a matter of civic spirit volunteered the additional work), or that their claims of having worked additional hours were not factually supported, then a collateral estoppel would arise because the MERC would have found facts inconsistent with a finding of breach of contract.
But where the MERC’s findings are not inconsistent with maintenance of a law action and it simply concludes that a back pay award is not available under the remedial standards it has developed, its conclusion does not preclude such an action.4
Ill
The policies of the PERA and of the law of contracts are different.5
*466The power to award back pay6 enables the MERC to further the act’s7 purpose of promoting peaceful labor relations.8 The United States Supreme Court has observed, in reference to the back pay provisions of the National Labor Relations Act, the model for the corresponding provisions of the Michigan labor relations acts:9_
*467"To make an award, the Board must first be convinced that the award would 'effectuate the policies’ of the Act. 'The remedy of back pay, it must be remembered, is entrusted to the Board’s discretion; it is not mechanically compelled by the Act.’ Phelps Dodge Corp v Labor Board, 313 US 177, 198 [61 S Ct 845; 85 L Ed 1271; 133 ALR 1217 (1941)]. The power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct.” International Union, UAW v Russell, 356 US 634, 642-643; 78 S Ct 932; 2 L Ed 2d 1030 (1958).“10
The MERC is concerned with speedy and prompt restoration of peaceful labor relations. To achieve that objective it may only be necessary to issue a cease and desist order; there may be no need to award back pay. The back pay issue may not loom large at the time in the context of labor relations peace.
Whether the MERC would in all cases limit its back pay remedy, in this case it was apparently of the view that in order to effectuate the policies of the act it was not necessary to award back pay for the additional hours the city unilaterally required the employees to work. While they had labored additional hours, they received the same weekly pay they had theretofore received. There was no actual loss of pay.
The law of contracts takes a different view of the matter. Under that body of law, requiring an employee to give up his time and expend labor beyond the requirements of the employment contract may entitle him to compensation for the time *468and labor expended;11 payment to the employees of the full weekly wage agreed upon in the contract does not preclude an action for additional compensation for additional hours worked.12
Given the distinctive nature of the administrative and judicial functions, inquiries, and remedies, the MERC’s failure to award back pay does not bar a subsequent action for damages unless facts found by the MERC are inconsistent with a determination that the collective bargaining agreement has been breached.13 In the instant case, the "fact” that historically the employees had not been paid for additional hours in a normal work week is not inconsistent with a finding that the collective bargaining agreements had been breached, and therefore does not preclude a determination that the employees have a right to recover a money judgment under the provisions of those agreements.
IV
The application of collateral estoppel in the instant case to bar the employees’ action for damages treats the administrative remedy of back pay —a remedy the MERC found was not available14— as the exclusive remedy. The United States Supreme Court has stated, however, that the remedies for an unfair labor practice, provided in the *469NLRA, do not exclude an action for breach of a collective bargaining agreement:
"Congress 'deliberately chose to leave the enforcement of collective agreements "to the usual processes of the law” See also HR Conf Rep No. 510, 80th Cong, 1st Sess, p 52. It is, of course, true that conduct which is a violation of a contractual obligation may also be conduct constituting an unfair labor practice, and what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the NLRB to remedy unfair labor practices, as such.” Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America, v Lucas Flour Co, 369 US 95, 101 fn 9; 82 S Ct 571; 7 L Ed 2d 593 (1962).
It is an established principle that the remedies available from an administrative tribunal are ordinarily not exclusive,15 and that where the labor board, or one of its examiners, dismisses unfair labor practice charges, a subsequent action for damages for breach of contract is not precluded by the doctrine of res judicata.
"Recovery in the present suit must be based upon an existing contract, and its obligations. Issues as to those matters were not, and could not be, before the [National Labor Relations] Board. Its decisions deal solely with questions of unfair labor practices as defined in the Act * * * .” Fibreboard Paper Products Corp v East Bay Union of Machinists, Local 1304, 344 F2d 300, 304 (CA 9, 1965).16
*470An administrative determination that an unfair labor practice has been committed, as in the instant case, may support, rather than preclude, a separate action for money damages. In a number of cases, employers have recovered damages in law actions based on labor board determinations, given res judicata effect, that the union had engaged in a secondary boycott, an unfair labor practice under the NLRA.17
It is also well established that judicial remedies may "fill out” administrative remedies — frequently of limited scope — when the latter are inadequate.18
The unavailability of the back pay remedy does not preclude this subsequent action seeking the alternative or supplemental remedy of damages. "Where a judgment is rendered in favor of the *471defendant because the plaintiff seeks a form of remedy which is not available to him, the plaintiff is not precluded from subsequently maintaining an action in which he seeks an available remedy.” Restatement Judgments, § 65(2).19
In sum, the failure to award back pay does not resolve the question of whether damages may be recovered for a breach of the collective bargaining agreements.
We would hold that the employees are not barred by collateral estoppel or res judicata from maintaining an action for money damages for breach of contract in the circuit court. We would reverse and remand for trial.
Kavanagh, C. J., and Ryan, J., concurred with Levin, J.Hooker Chemical Corp, 186 NLRB No 49; 75 LRRM 1357 (1970).
The MERC declared:
"[T]he order finding that the City of Detroit breached §§ 10a and e of the public employment relations act by its failure to notify the several labor organizations and bargain with them concerning the proposed change is not a ñnding that the labor agreements between the City of Detroit and the several labor organizations have been, or have not been breached. Decision is limited to a finding that the City of Detroit violated the public employment relations act by unilaterally increasing the working hours of the salaried employees involved from 35 to 40 hours per week without first notifying and bargaining in good faith with the collective bargaining representatives of the involved employees. The trial examiner notiñed the parties at the hearing that he did not intend to interpret the contracts. He did not do so. ’’(Emphasis supplied.)
In light of the foregoing, the trial examiner’s statement, "[i]n the absence of evidence to establish that under past practice, ordinance, or contract, such payment has ever been made for the additional five hours” (emphasis supplied), cannot be read as a decision whether the collective bargaining agreements had been breached or whether damages were available for such breach.
The trial examiner’s statement is concerned with whether payment for additional hours had in the past in fact been made. He found that it had not been made. His negative statement that such payment had not been made "under the contract” is not an affirmative finding or conclusion that the agreements did not, in this instance, require compensation or, their breach, an award of damages.
Any prior failure to make payment may itself have been a violation *463of the agreements. The circumstances of any prior failure to pay for additional hours may have been different from those in this case. This appears to have been the first time that a permanent increase in the length of the work week had been ordered. Construction of the contract would require an assessment of the entire history of the relationship (not just a single element in the limited context of a labor relations remedial order) which neither the trial examiner nor the MERC purported to, and indeed expressly declined to assume the responsibility of making.
The MERC has exclusive jurisdiction to determine whether an unfair labor practice has been committed. See Rockwell v Crestwood School District Board of Education, 393 Mich 616, 630; 227 NW2d 736 *465(1975); Southgate Community School District v Morrison, 1970 MERC Lab Op 161, 178-179. To obtain a determination that the city had committed an unfair labor practice and a cease and desist order, the employees necessarily filed a charge with the MERC.
The doctrine of primary jurisdiction would probably require that a court refrain from exercising jurisdiction until after the conclusion of the administrative proceedings. See generally, 3 Davis, Administrative Law Treatise, § 19.01, pp 3-5.
The parties, however, would be barred from relitigating in this action for breach of contract any facts found by the MERC material to the issues arising in this action. See Roman Cleanser Co v Murphy, 386 Mich 698, 703-704; 194 NW2d 704 (1972), and cases cited in fn 17 infra and accompanying text.
Treating the employees’ petition for back pay as an election of remedies, precluding a subsequent action for damages, would be contrary to authority disfavoring the doctrine of election of remedies. *466See Friederichsen v Renard, 247 US 207, 213; 38 S Ct 450; 62 L Ed 1075 (1918); Dobbs, Remedies, § 1.5, pp 3-23 (1973).
The doctrine of election of remedies is predicated on an inconsistency of remedies. Zimmerman v Harding, 227 US 489, 493; 33 S Ct 387; 57 L Ed 608 (1913); United States v Oregon Lumber Co, 260 US 290, 302; 43 S Ct 100; 67 L Ed 261 (1922) (Brandeis, J). See, generally, 5A Corbin, Contracts, § 1221, pp 471-473. There is no such inconsistency in the instant case.
The MERC is empowered "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act”. MCLA 423.216(b); MSA 17.455(16)(i). The MERC has entered back pay awards where employees have been wrongfully discharged (see Nick’s Fine Foods, 1968 MERC Lab Op 307) and where an employer unilaterally changed the conditions of employment causing employees to suffer an actual loss of wages which they otherwise would have received (see Gibraltar School District, 1970 MERC Lab Op 379).
The language authorizing back pay awards is patterned after § 10(c) of the National Labor Relations Act, 29 USC 160(c). This Court has frequently been guided by the construction of the NLRA:
“Although we cannot state with certainty, it is probably safe to assume that the Michigan Legislature [adopted the statute] in the form that it did with the expectation that MERC and the Michigan courts would rely on the legal precedents developed under the NLRA * * * Detroit Police Officers Association v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974),
"In construing the Michigan labor mediation act and the PERA, this Court has frequently been guided by the construction placed on the analogous provisions of the NLRA by the NLRB and the Federal courts.” Rockwell v Crestwood School District, supra, p 636.
MCLA 423.216(b); MSA 17.455(16)(b).
See Virginia Electric & Power Co v National Labor Relations Board, 319 US 533, 543; 63 S Ct 1214; 87 L Ed 1568 (1943).
This power does not extend to compensating private injuries nor does it permit an award of "speculative” or punitive damages. Douglas Harvey, Sheriff of Washtenaw County, 1968 MERC Lab Op 364 (humiliation, injury to reputation and future employment); Gibraltar School District, supra, p 381 (physical and emotional ailments and social degradation allegedly caused by school board’s unfair labor practices).
See fn 6, supra.
The Court held that the NLRA back pay provision did not preempt state court jurisdiction to award damages for an employee’s wage loss attributable to an unfair labor practice.
See 5 Corbin, Contracts, § 1109, pp 583-584.
See fn 2.
See Cole v UAW, Local 509, 68 LRRM 2097 (D Cal, 1968), where the court said that the NLRB’s finding that it was not an unfair labor practice to increase the amount of union dues was "persuasive” in announcing its conclusion that the union had not violated the collective bargaining agreement, and that the plaintiff-employee was not entitled to damages.
See also fn 17, infra, and accompanying text.
We all agree that the employees, in failing to appeal the MERC’s decision, are bound by its determination that back pay would not be awarded.
Linn v United Plant Guard Workers of America, Local 114, 383 US 53, 63-64, 66-67; 86 S Ct 657; 15 L Ed 2d 582 (1966); International Union, UAW v Russell, 356 US 634, 645; 78 S Ct 932; 2 L Ed 2d 1030 (1958); Kipbea Baking Co v Strauss, 218 F Supp 696 (ED NY, 1963).
The court held that the board’s dismissal of unfair labor practice charges, arising out of discharges and subcontracting of work, was not res judicata in a subsequent action seeking damages for breach of contract.
Similarly see Thomas v Ford Motor Co, 396 F Supp 52, 55-56 (ED Mich, 1973), aff’d 516 F2d 902 (CA 6, 1975); Local Union No 59, Sheet *470Metal Workers International Ass’n v J E Workman, Inc, 343 F Supp 480, 483-484 (D Del, 1972); Thomas v Consolidated Coal Co, 380 F2d 69, 78 (CA 4, 1967) (dictum).
Compare In the Matter of National Electric Products Corp, 3 NLRB 475, 500 (1937) and In the Matter of New York State Labor Relations Board v Holland Laundry, Inc, 294 NY 480, 495; 63 NE2d 68, 75 (1945), where after courts had held collective bargaining agreements to be valid, the respective labor relations boards held the contracts invalid. The board’s decision in the New York case was upheld by its Court of Appeals, which stated: "A determination of the issues in an action between private parties cannot bar a contest to vindicate the public interest, as provided in the statute, just as a judgment in civil litigation between private parties does not bar a contest of the same issues by the State in a criminal action.”
Texaco, Inc v Operative Plasterers & Cement Masons International Union, Local Union No 685, AFL-CIO, 472 F2d 594 (CA 5, 1973), cert den 414 US 906; 94 S Ct 238; 38 L Ed 2d 144 (1973); Paramount Transport Systems v Chauffeurs, Teamsters & Helpers, Local 150, 436 F2d 1064 (CA 9, 1971); International Wire v International Brotherhood of Electrical Workers, Local 38, 82 LRRM 3063 (ND Ohio, 1972), affd 475 F2d 1078 (CA 6, 1973). But see Old Dutch Farms, Inc v Milk Drivers & Dairy Employees Local No 584, 359 F2d 598 (CA 2, 1966), cert den 385 US 832; 87 S Ct 71; 17 L Ed 2d 67 (1966).
See United States v Brown, 348 US 110; 75 S Ct 141; 99 L Ed 139 (1954), holding that the amount of a recovery for personal injury under the Veteran’s Act, 38 USC 501a, reduces, but does not preclude recovery under the Federal Tort Claims Act, 28 USC 2671 et seq.
See Trans World Airlines, Inc, v Hughes, 317 A2d 114, 120 (Del Chancery, 1974), aff'd 336 A2d 572 (Del, 1975); Porter v Nossen, 360 F Supp 527, 530-531 (MD Pa, 1973); Warren Co v Neel, 284 F Supp 203, 212-213 (WD Ark, 1968), aff’d 406 F2d 775 (CA 8, 1969); 5A Corbin, Contracts, § 1225, pp 492-498. See also Holcomb v Bullock, 353 Mich 514, 519; 91 NW2d 869 (1958). Cf. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958).