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Public School Districts Must Tread Carefully Before Refusing To Take Payroll Deductions For Union Dues Pursuant to PA 53 of 2012

May 13, 2013


Since issuing our e-alert last Friday discussing the Bailey v. Callaghan decision, many public school districts have asked whether they must immediately stop taking deductions of union dues from bargaining unit employees' paychecks.  For those districts concerned about whether they must now follow PA 53 of 2012, or continue to honor the preliminary injunction that has been in effect since June 2012, they need to be aware that the Bailey decision is not effective until the Sixth Circuit Court of Appeals issues a written mandate (i.e., a written court order) lifting the injunction.  In other words, the preliminary injunction against PA 53 currently remains in place!

The plaintiffs have until May 23, 2013, to file a request for rehearing, or seek en banc review of the Bailey decision.  In a case such as Bailey , it is typical for a losing party to file an en banc request – which is a request for all of the Sixth Circuit Judge, as opposed to the three Judge panel —  to reconsider the case.  If an en banc request is filed by May 23, 2013, the Sixth Circuit will allow the other parties to submit a written response.  The Sixth Circuit Judges will then discuss the request before making a final decision on whether to grant or deny the request.  The process typically takes between 45-60 days for a decision to be issued . Throughout this entire process (whether the plaintiffs are seeking a rehearing or en banc review), the preliminary injunction against PA 53 remains in place!

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, which can also file a motion to stay (see below). Until the Sixth Circuit issues an en banc decision, the preliminary injunction against PA 53 remains in place!

If the Sixth Circuit denies the en banc request, the plaintiffs still 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.  (The plaintiffs can also decide to not seek rehearing or en banc review by May 23 and instead seek a stay.  If they choose this approach, then they have until May 30 to file a motion to stay). If a motion to stay is filed, then the preliminary injunction will remain in place until the U.S. Supreme Court makes a final decision to the application.

What does all this mean for public school districts and their bargaining unit employees?

Public school districts will have to wait and see what happens by May 23 before taking steps to comply with PA 53.  If the plaintiffs file a request for an en banc review, then the Bailey decision will not take effect and the injunction against PA 53 remains in place.  Regardless of whether the en banc request is granted or denied by the Sixth Circuit, it is unlikely that the injunction will 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.

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