The Michigan Public Employment Relations Act (PERA), after being modified in 2012 to make Michigan a so-called “right-to-work” state, does not permit public employee unions to deny its members the right to refrain from union activity unless there is a clear, explicit, and unmistakable waiver of that right, said the Michigan Court of Appeals in a per curiam opinion in Saginaw Education Association v. Eady-Miskiewicz, Nos. 329419, 329425, 329426, 329427, 329428, 329429, 329430, 329431, 331398, 331762, and 331875.
In these consolidated appeals, seven different public school employees charged, in disputes heard by the Michigan Employment Relations Commission (MERC), that the Michigan Education Association (MEA) and/or its respective local affiliates violated PERA by refusing to allow them to resign their memberships in (and stop paying dues to) the unions. Four of the public school workers were members of the Saginaw Education Association, the membership agreement and bylaws of which provided that membership could be terminated only by submitting a written request to the union between August 1 and August 31 (and having the union accept the request). Those four employees tried resigning in September 2013, but were informed by the union representative that their resignations were not timely and accordingly were rejected.
The cases involving other public school employees and the Standish-Sterling Educational Support Personnel Association, the Battle Creek Educational Secretaries Association, and the Grand Blanc Clerical Association had similar facts involving August resignation or withdrawal windows and attempted resignations during other months of the year.
After hearings in their respective cases, administrative law judges at MERC ruled largely in favor of the employees, finding that the unions committed unfair labor practices in violation of PERA by having one-month resignation windows and rejecting “untimely” resignations in connection therewith.
The 2012 amendments to PERA added, to Section 9 containing the then-existing statutory right of public employees to organize themselves into collective bargaining units, a right to refrain from such activity. The amendments also included a provision that prohibits any person from using coercion to compel a public employee to (i) become or remain a union member, (ii) refrain from doing so, or (iii) support a union financially. Previously existing provisions forbid public employers and labor organizations from interfering with the rights granted in Section 9, while the amendments added a prohibition on requiring an employee to be a union member as a condition of obtaining or continuing employment.
As a threshold matter, all of the union and teacher parties challenged MERC’s jurisdiction to determine whether the respective union rules at issue constituted a violation of the right to refrain from union activity under PERA. The court first noted case law explaining that MERC is the agency with exclusive jurisdiction over claims involving, and the power to prevent or correct, unfair labor practices. The court then cited other recent precedent in ruling that the denial of the right to refrain from union activity constitutes an unfair labor practice, and thus that MERC had proper jurisdiction over the claims.
The court then turned to the principal issue of the effects of the legislative modifications to PERA on the limitations on withdrawal in these consolidated cases. The court rejected the unions’ argument that the policies allowing only a one-month window to resign falls under their statutory right to prescribe their own internal rules with respect to the acquisition or retention membership. In so doing, it drew on U.S. Supreme Court precedent that a nearly identical federal statute have never been interpreted to allow unions to make rules restricting the right to resign, but rather assumed that the provision applied to rules for admitting or expelling employees from the union. The court then considered the PERA amendments against the historical backdrop and ultimately concluded that the unions’ resignation windows of one month per year constituted unfair labor practices under PERA, unless the teachers clearly, explicitly and unmistakably waived their right to dissociate at will.
As to that latter exception, the unions argued that the teachers waived the right to discontinue union affiliation at will by voluntarily entering into their respective membership agreements that limited their resignation rights. The court upheld MERC’s ruling that waivers of statutory rights must be clear and unambiguous, and that merely joining or remaining a member of a union with such limitations in its bylaw or constitution does not constitute a clear, explicit, and unmistakable waiver of the PERA right to refrain from union activity. The court further reasoned that when the teachers signed their membership agreements, PERA had not yet been amended to include the right to refrain.
The unions also argued that MERC’s interpretation of PERA to allow union members to withdraw their support at will infringes upon the unions’ right to freedom of association. The court responded by pointing out that to hold that unions could enforce members’ financial obligations until the next resignation window would infringe on the members’ associational rights. It decided that PERA’s right-to-work amendments counseled resolving the tension in favor of the union members, and upheld MERC’s decision not to develop and resolve those constitutional claims in the unions’ favor.
The court then dismissed the unions’ additional constitutional claim that MERC’s decision to recognize a right to discontinue union support at will, absent a waiver of that right, substantially impaired the contractual obligations under the membership agreements at issue. In so doing, the court reiterated its (and MERC’s) earlier reasoning that the relationship between union and union member is not strictly contractual in nature.
Next, two of the union respondents argued that MERC should have dismissed the teacher’s claim of unfair labor practices because it was time-barred. MERC had treated the union representative’s emails to the teacher, sent six months apart and stating that her resignation was not timely and could not be accepted, were separate, independent instances of an unfair labor practice. The court agreed, reasoning that the resignation window came and went in the time between the emails, and thus concluding that the statute of limitations began to run anew when the union sent the second denial email.
Finally, the teachers in the cases involving the Saginaw Education Association and the MEA argued that those unions violated their duty of fair representation by failing to provide sufficient information regarding applicable resignation procedures. The court upheld MERC’s rejection of this claim, adopting its reasoning that the amendments to PERA included a mandate to the Department of Licensing and Regulatory Affairs to disseminate information regarding the impact of the amendments on union members’ rights. By drafting the legislation in this way, the court said, the legislature recognized that the duty of fair representation did not include a duty to take responsibility for educating members about the new options for dissociation from union activities.
The court thus affirmed the MERC decisions as to all counts.
