MEA's 30 Day Window for Opt-Out Violates PERA
On May 2, 2017, the Michigan Court of Appeals affirmed a unanimous ruling by the Michigan Employment Relations Commission ("MERC") that the Michigan Education Association ("MEA") committed an unfair labor practice and violated the Public Employment Relations Act ("PERA") by only allowing members to resign from the union during August 1 and August 31 of each year.
Facts of the Underlying Cases
A Battle Creek Public Schools employee resigned her union membership in April 2013, after the pre-existing bargaining agreement expired and after she became fully covered by Michigan's Right to Work law. MEA union officials insisted that the employee could only leave the union during an annual 30 day window period, August 1 – August 31. She filed unfair labor practice charges against the MEA in the spring of 2014.
A Grand Blanc Community Schools employee resigned her union membership in November 2013, just as she became fully covered by Michigan's Right to Work law. MEA officials responded to her resignation letter by informing her it would not be effective until the following August "window" period. The employee filed unfair labor practice charges against the MEA in the spring of 2014.
A Standish-Sterling Community Schools employee resigned his union membership in October 2013 and asked to only pay the part of dues he was forced to pay as a condition of employment, because he was still under a collective bargaining contract until June 30, 2015. He was told by the MEA that he could only leave the union during the annual 30 day window period, and both of his requests were denied. He filed unfair labor practice charges against the MEA in the spring of 2014.
Finally, a number of Saginaw employees, at the time of hire, signed a "Continuing Membership Application" agreeing to join the union and authorizing the District to deduct union dues from their pay and transmit those funds to the union. The language next to the payroll deduction checkbox stated "I authorize my employer to deduct local, MEA and NEA dues, assessments and contributions as may be determined from time to time, unless I revoke this authorization in writing between August 1 and August 31 of any year."
Right to Work Legislation under PERA
Section 9(1)(a) of PERA establishes that public employees may organize themselves into collective bargaining units. 2012 PA 349, effective March 28, 2013, added § 9(1)(b), establishing that public employees may refrain from such activity. 2012 PA 349 also added subsection (2), which prohibits any person from resorting to coercion to compel a public employee to become or remain a member of a labor organization, to compel a public employee to refrain from doing so, or to compel a public employee to support such an organization financially.
Section 9(2)(a) of PERA commands that no person "force" a public employee to "remain a member of a labor organization or bargaining representative or otherwise affiliate with or financially support a labor organization or bargaining representative," and is made applicable to labor organizations through MCL 423.210(2)(a).
Court of Appeals Decision
The MEA argued that their policy allowing members only a one-month window per year to resign falls under PERA in Section 10(2)(a)'s provision preserving a union's right "to prescribe its own rules with respect to the acquisition or retention of membership." The Court of Appeals concluded that the union offered no authoritative support for the proposition that a rule limiting resignation rights to an annual one-month period was permissible under § 10(2)(a) in the face of legislation expressly recognizing a union member's rights to refrain from union activity. (Section 9(2)(a).)
The MEA also argued MERC erred in rejecting their argument that the employees waived the right to discontinue union affiliation at will by voluntarily entering into membership agreements (i.e. "Continuing Membership Applications") that limited their resignation rights to August 1 – August 31. The Court of Appeals rejected this argument and held that MERC correctly recognized that waivers of statutory rights must be clear and unambiguous. The agreements upon which the union relied upon did not constitute such explicit and unmistakable waivers of the employees' statutory right to refrain from union membership at any time.
The Michigan Court of Appeals confirmed that PERA's establishment of a broad right to refrain from union affiliation is reasonably related to the legislatively identified public need for voluntary unionism. Union members have the right to resign union membership at will at any time, absent a clear, explicit, and unmistakable waiver. The freedom of choice under Right to Work cannot be afforded only once a year.
If the MEA decides to appeal, its next step would be to file an application to appeal with the Michigan Supreme Court. If you have any questions, please contact Kara Rozin at email@example.com | (616) 608-1110, or another member of Clark Hill's Education Practice Group.
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