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Saginaw Education Association v. Eady-Miskiewicz

Court of Appeals of Michigan

May 2, 2017

SAGINAW EDUCATION ASSOCIATION, Respondent-Appellant/Cross-Appellee,
v.
KATHY EADY-MISKIEWICZ, Charging Party-Appellee/Cross-Appellant. MICHIGAN EDUCATION ASSOCIATION, Respondent-Appellant/Cross-Appellee,
v.
KATHY EADY-MISKIEWICZ, Charging Party-Appellee/Cross-Appellant. SAGINAW EDUCATION ASSOCIATION, Respondent-Appellant/Cross-Appellee,
v.
MATT KNAPP, Charging Party-Appellee/Cross-Appellant. MICHIGAN EDUCATION ASSOCIATION, Respondent-Appellant/Cross-Appellee,
v.
VMATT KNAPP, Charging Party-Appellee/Cross-Appellant. SAGINAW EDUCATION ASSOCIATION, Respondent-Appellant/Cross- Appellee,
v.
JASON LAPORTE, Charging Party-Appellee/Cross- Appellant. MICHIGAN EDUCATION ASSOCIATION, Respondent-Appellant/Cross- Appellee,
v.
JASON LAPORTE, Charging Party-Appellee/Cross- Appellant. SAGINAW EDUCATION ASSOCIATION, Respondent-Appellant/Cross- Appellee,
v.
SUSAN ROMSKA, Charging Party-Appellee/Cross- Appellant. MICHIGAN EDUCATION ASSOCIATION, Respondent-Appellant/Cross- Appellee,
v.
SUSAN ROMSKA, Charging Party-Appellee/Cross- Appellant. STANDISH-STERLING EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION MEA/NEA, Respondent-Appellant,
v.
MARK NORGAN, Charging Party-Appellee. GRAND BLANC CLERICAL ASSOCIATION and MICHIGAN EDUCATION ASSOCIATION, Respondents-Appellants,
v.
MARY CARR, Charging Party-Appellee. BATTLE CREEK EDUCATIONAL SECRETARIES ASSOCIATION and MICHIGAN EDUCATION ASSOCIATION, Respondents-Appellants,
v.
ALPHIA SNYDER, Charging Party-Appellee.

         MERC LC No. 13-013125, 13-013127, 13-013128, 13-013129, 13-013130, 13-013131, 13-013132, 13-013134, 14-002293, 14-006843, 14-004413.

          Before: Beckering, P.J., and O'Connell and Swartzle, JJ.

          PER CURIAM.

         These consolidated appeals mainly concern the effects of legislative modifications of the public employment relations act (PERA), MCL 423.201 et seq., since 2012-the legislation transforming Michigan into a so-called right-to-work state.

         In Docket Nos. 329419, 329425, 329426, 329427, 329428, 329429, 329430, and 329431, respondents, the Michigan Education Association (MEA) and its local affiliate, the Saginaw Education Association, appeal as of right from the September 23, 2015 decision of the Michigan Employment Relations Commission (MERC) declaring in violation of PERA a union rule that allows members to resign only during a one-month window each year, and ordering those respondents to accept resignations the charging parties offered outside that window. The attendant charging parties in turn cross-appeal from that order insofar as it rejected their claim that respondents violated their duty of fair representation by not more actively informing its members of their resignation rights.

         In Docket No. 331398, respondent the Standish-Sterling Education Support Personnel Association MEA/NEA appeals from the January 15, 2016 decision of the MERC insofar as it, too, recognized the attendant parties' right to end their union affiliations at will.

         In Docket Nos. 331762 and 331875, respondents the MEA and its local affiliates, the Grand Blanc Clerical Association and the Battle Creek Educational Secretaries Association, appeal as of right from the February 11, 2016 decision of the MERC insofar as the MERC again held that the charging parties were entitled to end union affiliations at will. The latter union and the MEA additionally contend that the MERC erred in declining to dismiss the charge underlying Docket No. 331875 as untimely.

         For the reasons set forth below, we affirm all of the MERC decisions at issue.

         I. STATUTORY AND PROCEDURAL HISTORY

         A. RIGHT-TO-WORK LEGISLATION

         Section 9(1)(a) of PERA, MCL 423.209(1)(a), 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 10(1)(a) of PERA, MCL 423.210(1)(a), in turn prohibits a public employer from interfering with, restraining, or coercing public employees "in the exercise of their rights guaranteed in section 9." Section 10(2)(a) imposes the same prohibition on labor organizations while adding that it "does not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership." 2012 PA 349 added subsection (3), which, but for exceptions not applicable here, prohibits requiring "an individual . . . as a condition of obtaining or continuing public employment" to "[b]ecome or remain a member of a labor organization or bargaining representative, " to support such an organization financially, or to "[r]efrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization or bargaining representative." MCL 423.210(3). 2012 PA 53, effective March 16, 2012, amended § 10 to prohibit public school employers from using "public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees" except in connection with collective bargaining agreements already in effect when that provision became operative. MCL 423.210(1)(b).

         B. DOCKET NOS. 329419 AND 329425-329431

         The MERC's decision and order in connection with the eight cases involving the Saginaw Education Association included a convenient summary of the underlying facts:

[E]ach of the Charging Parties is employed by Saginaw Public Schools (Employer) and is part of the bargaining unit represented by the Respondent Saginaw Education Association (SEA). The SEA is a local affiliate of Respondent Michigan Education Association (MEA), and members of the SEA are also members of the MEA and the National Education Association (NEA) due to the organizations' unified membership structure.
Around the time they were hired, each of the Charging Parties signed a "Continuing Membership Application" agreeing to join Respondents' unions and authorizing the Employer to deduct union dues from their pay and transmit those funds to Respondent SEA. Just above the signature line on the application, there are two checkboxes, one for cash payment and one for payroll deduction. The language next to the cash payment checkbox states: "Membership is continued unless I reverse this authorization in writing between August 1 and August 31 of any year." The language next to the payroll deduction checkbox states: "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." . . .
Article I of the MEA bylaws provides in relevant part: . . . "Continuing membership in the Association shall be terminated at the request of a member when such a request is submitted to the Association in writing, signed by the member and postmarked between August 1 and August 31 of the year preceding the designated membership year." . . .
The collective bargaining agreement between the Employer and Respondent SEA that covered the 1995 to 1998 academic years contained a union security agreement and required the Employer to deduct union dues from employees' wages when authorized by the respective employees. That contract expired June 30, 1998. The subsequent collective bargaining agreements did not contain a union security agreement, but did require the Employer to deduct union dues from employees' wages when authorized by the respective employees. . . .
2012 PA 53 . . . which amended PERA to prohibit public school employers from assisting labor organizations in collecting union dues or service fees, became effective March 16, 2012. However, where the public school employer collected dues or service fees pursuant to a collective bargaining agreement that was in effect on the effective date of Act 53, the prohibition did not apply until the contract expired. The collective bargaining agreement in place immediately prior to the matter at issue expired on June 30, 2013.
On December 11, 2012, the Michigan Legislature passed 2012 PA 349, which, among other things, expressly provided that public employees have a right to refrain from union activity and made agency shop illegal for most public employees.
On January 18, 2013, Respondent MEA prepared a letter designed to be provided to members who inquired about resigning from membership. The letter indicated that resignation from membership must be submitted in writing and postmarked during the annual August window period.
Pursuant to 2012 PA 53, which prohibited public school employers from collecting union dues or services fees from their employees, the Employer ceased dues deductions after the collective bargaining agreement with Respondent SEA expired on June 30, 2013. Subsequently, Respondents established an e-dues program to allow employees to pay their union dues electronically. . . . None of the four Charging Parties signed up for the e-dues program; nor did any of the four pay union dues after the Employer stopped dues deductions.
In September 2013, [three] Charging Parties . . . sent letters to Respondents resigning from the Unions and revoking their dues deduction authorizations. Respondents informed each of them that their resignations were not timely in light of the August window period for resignations. . . .
Also, in September 2013, [the fourth charging party] told an SEA representative that he no longer wanted to pay union dues. On September 11, he received an e-mail from an MEA UniServ director acknowledging his statement that he was "not interested in paying dues at this time" and asking him to meet with her to discuss his options in light of that statement. On October 7, [that charging party] sent an e-mail to Respondents explaining that he had assumed he was no longer a union member if he did not sign up for the e-dues program. . . . In response, Respondents' agent . . . explained the window period, and informed him that failing to sign up for the e-dues program did not constitute a resignation from the Unions.

         On October 21, 2013, the charging parties filed unfair labor practice charges, alleging violations of MCL 423.209(2)(a) and MCL 423.210(2)(a), as recently amended. The following month, they amended their respective charges to allege that respondents had breached their duties of fair representation for having "restrained or coerced Charging Parties in the exercise of their § 9 right to refrain from joining and/or assisting a labor organization." Thus, the charging parties alleged that respondents violated "§ 10(2)(a) of PERA, by refusing to allow Charging Parties to resign their memberships when they attempted to do so and by threatening to attempt to collect dues they allegedly owed by hiring a debt collector and/or suing Charging Parties to collect the alleged debt." The charging parties further alleged that respondents "violated their duty of fair representation under § 10(2)(a) by failing to adequately notify them and other teachers of the 'steps they would need to take to extricate themselves fully from any financial obligation to the unions.' "

         The administrative law judge (ALJ) concluded that the insertion of right-to-refrain language in § 9 of PERA occasioned a departure from earlier caselaw regarding "whether the MEA's August window period violates § 10(2)(a) of PERA."[1] The ALJ then surveyed instructive caselaw and stated that "[i]t is unclear whether a member could, by any means, waive his or her right to resign full membership at any time, " but that "it is clear . . . that members do not waive their right to resign full membership merely by voluntarily becoming a member of a union that has a rule in its constitution or bylaws restricting the right to resign." The ALJ elaborated that an employee may waive the right to refrain from continuing financial support of a union after resigning, but that "because this is an agreement to waive a statutory right, the waiver must be clear, explicit, and unmistakable." The ALJ opined that the charging parties "did not clearly and explicitly waive that right either by joining Respondents when that organization had a bylaw that restricted when they could resign or by the Continuing Membership agreements which they signed, " and that respondents' "continued maintenance and enforcement of the August window period . . . violated § 10(2)(a) of PERA because it constituted an unlawful restriction on employees' right to resign."

         Respondents objected that the MERC lacked jurisdiction over what respondents characterized as an internal union matter. They argued alternatively that 2012 PA 349 did not allow union members to resign at will, and that ordering respondents to refrain from maintaining and enforcing the policy restricting the timing of resignations would bring about an unconstitutional impairment of respondents' contractual relation with their members.

         The MERC rejected these arguments. Concerning its jurisdiction, the MERC noted that recent statutory amendments to PERA prohibited unions or employers from requiring employees to financially support unions, and expressly recognized the right of public employees to refrain from joining or supporting labor organizations. Thus, the MERC concluded, "we have jurisdiction to determine whether Respondents' actions in refusing to allow Charging Parties to resign from the Unions outside the August window period is an unlawful restraint on Charging Parties' right to refrain from union activity."

         The MERC further opined that respondents' retention of the right to make their own rules concerning the acquisition or retention of members under § 10(2)(a) did not permit them to deny public employees the rights provided by § 9, which now included the right to refrain from union activity. "Accordingly, . . . where employees have a right to refrain from union activity, the union may not make rules interfering with or restraining employees in the exercise of that right." The MERC additionally opined that "as of the effective date of Act 349, Charging Parties had the right to resign their union memberships, subject to any lawful constraints in the parties' membership contract, " and also that "Charging Parties' membership obligations to Respondents, including the obligation to pay dues, should end at the point Charging Parties provided the Unions with notice of their resignations." Accordingly, "the Unions' refusal to allow Charging Parties to resign their union memberships after Charging Parties effectively notified Respondent SEA of their respective resignations [constituted] a breach of the duty of fair representation in violation of § 10(2)(a) of PERA."

         Concerning the claim of unconstitutional impairment of contract rights, the MERC concluded that "the language of § 10(5) indicates that the Legislature intended to make it clear that the changes to PERA in § 10(3) were not to impair existing contracts." Additionally, to the extent that other amendments establishing an immediate right to refrain from union affiliation worked a substantial impairment of existing contractual rights, such impairment was justified in light of the "significant and legitimate public purpose" behind the legislation.

         The charging parties asserted that the ALJ erred by concluding that respondents had not failed in any duty to provide its members with "adequate information to make an informed choice during the August window period." The MERC agreed with the ALJ that the record indicated that respondents had not violated any duty to provide information regarding how the recent legislation affected their members' resignation opportunities.

         C. DOCKET NO. 331398

         The MERC's summary of the facts underlying its decision and order in connection with respondent the Standish-Sterling Educational Support Personnel Association included the following:

Charging Party . . . is employed as a custodian by the Standish-Sterling Community Schools (the Employer) and is part of the bargaining unit represented by the Respondent Standish-Sterling Educational Support Personnel Association (SSESPA). The SSESPA is a local affiliate of the Michigan Education Association (MEA), and members of the SSESPA are also members of the MEA and the National Education Association (NEA) . . . .
On September 14, 2001, the Charging Party signed a "Continuing Membership Application" agreeing to join Respondent and authorizing the Employer to deduct union dues from his pay and transmit those funds to Respondent. On the application, . . . language next to the payroll deduction checkbox states: "I authorize my employer to deduct Local MBA 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." Charging Party checked the box for payroll deduction.
Respondent and the Employer have been party to a series of collective bargaining agreements each of which contained a provision requiring members of Respondent's bargaining unit to authorize the Employer to deduct union membership dues or service fees from their paychecks. . . . The most recent agreement was entered into on November 12, 2012, and expired on June 30, 2015.
On October 7, 2013, . . . Charging Party sent a letter to the MEA UniServ Director resigning from the Union, notifying the Union that he would only pay those dues and fees he could lawfully be compelled to pay as a condition of employment, and revoking his dues deduction authorization. On October 31, 2013, Respondent informed Charging Party that his ...

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