Clarkston Education Association v. Ron Conwell ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CLARKSTON EDUCATION ASSOCIATION UNPUBLISHED
and MICHIGAN EDUCATION ASSOCIATION, January 10, 2019
Respondents-Appellants,
v No. 340470
MERC
RON CONWELL, Case No. 15-059437
Charging Party-Appellee.
Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J. (dissenting)
I respectfully dissent.
I conclude that plaintiff’s cause of action accrued on September 22, 2014, when he first
became subject to the collective bargaining agreement (CBA) containing an allegedly illegal
provision. As the majority observes, an unfair-labor-practice charge accrues “when the person
knows of the act which caused his injury and has good reason to believe that the act was
improper.” Saginaw Ed Ass’n v Eady-Miskiewicz, 319 Mich. App. 422, 454; 902 NW2d 1 (2017).
Conwell’s claims are fundamentally premised on the 2014 and 2015 CBAs being in violation of
Michigan’s euphemistic “right to work” law, which went into effect before the 2014 CBA.
Indeed, his unfair labor charge specifically stated that:
[b]y entering into the 2014 CBA and 2015 CBA’s [sic] requiring individuals to
pay a fee to the union as a condition of employment, Respondent Union and
Respondent Employer violated [Conwell’s] right not to be required to pay fees to
Respondent Union and violated the Act by bargaining over such an agreement.
As the majority also notes, “the ‘injury’ redressed by [public employment relations act (PERA),
MCL 423.201 et seq.] statutory charges is the unfair labor practice itself, not any specific harm
or damage flowing from that unfair labor practice.” Consequently, Conwell’s “injury” is being
subject to an allegedly illegal contractual provision of which he must have been aware from its
inception.
The “continuing-wrongs doctrine” is inapplicable. Saginaw Ed Ass’n, 319 Mich. App. at
455. Therefore, the fact that Conwell did not immediately seek to exercise his alleged right to
benefit from collective bargaining without paying for the service would only affect when his
claim accrued if his resignation was “a substantially new controversy.” See id. at 455-456. I do
not believe it was. Rather, the August 20, 2015, letter Conwell sent to respondents
acknowledges that he already believed the 2014 CBA was in violation of the “right to work” law,
and that his desire to resign from the union was because he believed the “right to work” law
permitted him to do so. In other words, 2015 was simply when Conwell chose to act on a
perceived invasion of his rights, of which he had been aware for considerable time. Conwell’s
cause of action had already expired by the time he filed the instant charges, and the matter should
have been dismissed on that basis.
I decline to address the other issues.
/s/ Amy Ronayne Krause
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