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Plaintiffs Appeal Sixth Circuit Decision Requiring Public School Districts To Not Withhold Union Dues From Employees' Paychecks

By Kurt M. Graham / May 30, 2013

On May 9, 2013, the Sixth Circuit Court of Appeals in Bailey v. Callaghan , reversed a preliminary injunction issued by a federal district court judge enjoining the Michigan Employment Relations Commission ("MERC") from enforcing Public Act 53 of 2012, which prohibits school districts from assisting a union in collecting union dues and service fees.

On May 23, 2013, the plaintiffs filed a Petition for Rehearing En Banc seeking review of the Bailey decision by the full Sixth Circuit.  What does the petition filing mean for public school districts?

  1. The Bailey decision is not effective and the preliminary injunction against PA 53 continues to remain in place!
  2. The Sixth Circuit Judges will now discuss the Petition for Rehearing En Banc before making a final decision on whether to grant or deny the plaintiffs' request.  The process typically takes between 45-60 days for a decision to be issued. While the Petition for Rehearing En Banc is pending, the preliminary injunction against PA 53 remains in place !
  3. If the Sixth Circuit grants the en banc request, then the Bailey decision will be immediately vacated, the parties will be given the opportunity to file briefs, and the case will be scheduled for oral argument before the entire Sixth Circuit.  After considering the parties' written and oral arguments, the entire Sixth Circuit will issue a written opinion that can be appealed by the losing party to the U.S. Supreme Court. Throughout this entire process as well, the preliminary injunction against PA 53 remains in place!
  4. If the Sixth Circuit denies the en banc request, the plaintiffs have seven days from the denial decision to file a motion to stay issuance of the mandate pending application to the U.S. Supreme Court. If a motion to stay is filed, then the preliminary injunction against PA 53 will remain in place until the U.S. Supreme Court makes a final decision on the application.
  5. The injunction against PA 53 will not be lifted anytime soon (and certainly not prior to the end of the 2012-13 school year).  As a result, public school districts need to continue monitoring what happens next in Bailey before following PA 53 by refusing to take payroll deductions of union dues from bargaining unit members.

The Clark Hill Education Law Group will continue to follow developments in Bailey and provide updates on any developments.  In the meantime, if you have any questions on this issue please call your Clark Hill Education Law attorney.