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CLARKSTON EDUCATION ASSOCIATION UNPUBLISHED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.
PER CURIAM.
In this labor dispute concerning a collective bargaining agreement (CBA), respondents
Clarkston Education Association (CEA) and Michigan Education Association (MEA)
(collectively, “respondents” or “the respondent unions”) appeal as of right an order of the
Michigan Employment Relations Commission (MERC). Among other things, MERC concluded
that respondents had committed an unfair labor practice by attempting to enforce an unlawful
collective bargaining provision against the charging party, teacher Ron Conwell of the Clarkston
Community School District, which required Conwell to continue paying a “fair share” fee to the
respondent unions after he resigned his membership in them. We affirm.
I. FACTUAL BACKGROUND
This case arises out of actions that respondents took in response to 2012 PA 349, which is
one of the public acts that are “commonly known as the ‘Right to Work’ laws[.]” See UAW v
Green, 498 Mich. 282, 284; 870 NW2d 867 (2015). Specifically, this case arises out of a
memorandum of understanding (MOU) respondents entered into with the Clarkston Community
School District (the District) in hopes that it would permit them to “grandfather” certain labor
practices into both their extant and future CBAs before the effective date of 2012 PA 349, at
which time such practices became unlawful.
On appeal, the parties do not contest any of MERC’s stated factual findings or those of
the administrative law judge (ALJ), which MERC adopted in whole. The order appealed aptly
explained that
[t]he material facts in this matter are not in dispute.
Respondents were parties to a collective bargaining agreement (2012
[CBA]) covering September 1, 2012 through August 31, 2013. The 2012 [CBA]
contained a union security clause providing that if a teacher failed to pay union
dues or the service fee, the union president could request that the teacher’s
employment be terminated at the close of the school year, and the teacher would
be dismissed in accordance with applicable law.
On December 11, 2012, the Michigan Legislature passed 2012 PA 349
(Act 349), which amended [the public employment relations act (PERA), MCL
423.201 et seq]. The changes to PERA included language expressly providing
that public employees have a right to refrain from union activity. Other changes
made union security clauses illegal for collective bargaining agreements affecting
most public employees covered by PERA. Act 349 became effective March 28,
2013.
On March 21, 2013, [the District], Respondent Unions [i.e., respondents
CEA and MEA], and two other MEA affiliates representing other bargaining units
employed by [the District] entered into a memorandum of understanding (MOU)
which provided:
1. [The District] and Union agree that the agency or closed
shop provisions (“Agency Shop”) in the collectively bargained
agreements between [the District] and the Union are hereby
extended for a period not to exceed the term of the applicable,
successor collectively bargained agreement but said extension, in
each case, is contingent and conditioned upon ratification and
execution of all successor collectively bargained agreements
between [the District] and the Union by on or before midnight on
June 15, 2013. It is further acknowledged that [the District], at its
option, may revoke and terminate Agency Shop in the event that
any unit of Union is unable to observe the applicable deadline for
ratification and execution of a successor collectively bargained
agreement Union agrees that it will not legally challenge any such
revocation or termination. The parties agree that this MOU does
not constitute the settlement of or a successor to any collectively
bargained agreement between [the District] and Union, that this
MOU creates no binding precedent or past practice and that it does
not establish a pattern of bargaining or constitute multiple unit
bargaining, the multi-party nature of this MOU being for the mere
convenience of the parties hereto.
2. In consideration of the [District] agreements contained
in Paragraph 1 of this MOU, Union agrees that it shall, at its sole
cost and expense and through counsel acceptable to [the District],
defend and hold harmless [the District]. . . .
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3. This MOU is effective upon ratification by the parties
which will in no case be later than March 26, 2013 and expires on
June 30, 2016.
On June 15, 2013, Respondents entered into a new collective bargaining
agreement (2013 [CBA]) covering September 1, 2013 through August 31, 2014.
The 2013 [CBA] included the agency shop language from the Respondents’ 2012
[CBA]. On September 22, 2014, Respondents entered into a successor collective
bargaining agreement (2014 [CBA]) containing the same agency fee language and
covering the period from September 22, 2014 through August 31, 2015.
As explained in the ALJ’s proposed decision:
On August 20, 2015, [charging party] Conwell sent a letter to the MEA
resigning his union membership. Conwell also stated in his letter that the agency
fee clause in the Respondents’ collective bargaining agreement expiring on
August 31, 2015, was illegal under Michigan’s “Right to Work” law. Conwell
went on to inform the Union that he expected immediate release from all
obligations of membership and, if he could currently be lawfully compelled to pay
union fees under Michigan law as a condition of his employment, that he invoked
his rights under Abood [v Detroit Bd of Ed, 431 U.S. 209; 97 S. Ct. 1782; 52 L. Ed.
2d 261 (1977), since overruled by Janus v American Federation of State, Co, &
Mun Employees, Council 31, ___ US ___; 138 S. Ct. 2448; 201 L. Ed. 2d 924
(2018)]. Conwell received a reply from the MEA dated August 31, 2015, stating
that it had accepted his resignation, but that he was “a member of a bargaining
unit that has a collective bargaining agreement in effect which requires all
members of the bargaining unit, as a condition of employment, to either be
members of the Association [i.e., respondent unions] or to pay a fair share fee to
the Association.”
On or about September 1, 2015, Respondents entered into another
collective bargaining agreement for the term September 1, 2015, through June 30,
2017. This agreement included the same agency fee clause as the previous
agreements, but included a clause stating that the article was “null and void and of
no further force and effect after June 30, 2016, in accordance with the
Memorandum of Understanding between the District and the Association
executed on March 21, 2013.”
On October 8, 2015, Conwell’s legal counsel sent a letter to the
Respondents asserting that under the terms of the 2013 MOU, the new Right to
Work Law fully applied to Conwell and other members of his bargaining unit the
day after the successor agreement referenced in the first paragraph of the 2013
MOU expired. According to Conwell’s counsel, this was September 1, 2014.
The letter argued that the agency fee clauses in the [2014 CBA] and [2015 CBA]
were therefore null and void from their inception because both agreements were
entered into, and became effective, after the new Right to Work Law was
applicable to Conwell’s bargaining unit. Conwell’s counsel stated that since
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Conwell had paid all his membership dues for the 2014-2015 school year, he had
no further obligation to pay union dues or fees to the Union. The letter alleged
that the Union was violating Conwell’s legal right to refrain from assisting a labor
organization by “demanding that he owes a fair share fee,” and that the
Respondents had violated employees’ rights by entering into collective bargaining
agreements containing agency shop clauses in violation of the Right to Work law.
The letter demanded that the Union cease and desist from attempting to enforce
the agency shop clause, cease and desist from demanding payment of a fair share
fee from Conwell, update its records to reflect that Conwell did not owe a fair
share fee, and send Conwell written confirmation that he does not owe a fair share
fee.
Neither Conwell nor his counsel received a response to the October 8
letter. On November 9, 2015, Conwell filed the instant charges. In December
2015, the MEA sent Conwell the packet of materials it sends annually to non-
members covered by agency fee clauses. Along with information, the packet
included a service fee election form that included three choices for employees
who did not want to be union members: paying a service equal to the amount of
dues less the cost of the liability insurance the MEA provides to its members,
paying a Union-determined reduced service fee, and paying the reduced service
fee and challenging the amount of the fee pursuant to the procedure described in
the packet. The materials also directed Conwell to send a check or money order
for the “pro rata amount due pursuant to the Service Fee Election Form
Worksheet.” The materials stated if the non-member did not submit the election
form with a check or money order by January 19, 2016, he or she would be
“required to pay a service fee equal to association dues less the pro rata cost of
liability insurance.” According to an affidavit by Conwell attached to his motion
for summary disposition, he checked the box on the service fee election form
stating that he wished to pay a reduced service fee in order to protect his right to
pay only the reduced fee if he lost his unfair labor practice case. Conwell
returned the service fee election form to the MEA but did not send money.
After Conwell instituted this action, respondents filed a joint motion seeking summary
disposition. Conwell also moved for summary disposition. Ultimately, MERC ruled in
Conwell’s favor in all regards, and this appeal ensued.
II. STANDARD OF REVIEW
As recently explained in Calhoun Intermediate Sch Dist v Calhoun Intermediate Ed
Ass’n, 314 Mich. App. 41, 46; 885 NW2d 310 (2016):
We review MERC decisions pursuant to Const 1963, art 6, § 28, and MCL
423.216(e). MERC’s factual findings are conclusive if they are supported by
competent, material, and substantial evidence on the record considered as a
whole. MERC’s legal determinations may not be disturbed unless they violate a
constitutional or statutory provision or they are based on a substantial and
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material error of law. We review de novo MERC’s legal rulings. [Quotations
marks and citations omitted.]
III. ANALYSIS
Respondents assert several claims of error on appeal. We examine each in turn.
A. STATUTE OF LIMITATIONS
Respondents argue that MERC erred by concluding that Conwell’s charges in this action
were timely under the six-month limitations period provided by MCL 423.216(a). We disagree.
As this Court recently explained in Saginaw Ed Ass’n v Eady-Miskiewicz, 319 Mich. App.
422, 454; 902 NW2d 1 (2017) (Eady-Miskiewicz):
But for an exception relating to persons serving in the armed forces, a
person bringing an unfair-labor-practice charge before the MERC must do so
within six months of the act engendering the charge. MCL 423.216(a). That
limitation period “commences when the person knows of the act which caused his
injury and has good reason to believe that the act was improper or done in an
improper manner.” Huntington Woods v Wines, 122 Mich. App. 650, 652; 332
NW2d 557 (1983). “[I]t is not necessary that the person recognize that he has
suffered invasion of a legal right.” Id. [Second alteration in original.]
The “continuing-wrongs” or “continuing violations” doctrine does not apply to unfair-labor-
practice charges under MCL 423.216(a). Eady-Miskiewicz, 319 Mich. App. at 455. See also
Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263, 290; 696 NW2d 646
(2005), amended on other grounds 473 Mich. 1205 (2005) (holding that the continuing wrongs
“doctrine has no continued place in the jurisprudence of this state”); Froling Revocable Living
Trust v Bloomfield Hills Country Club, 283 Mich. App. 264, 286; 769 NW2d 234 (2009) (holding
that Garg wrought “the complete abrogation of the continuing wrongs doctrine in the
jurisprudence of this state”).
Respondents do not contest MERC’s finding that Conwell resigned from the respondent
unions effective August 20, 2015. As MERC aptly noted, before that time, Conwell remained a
dues-paying member of those unions. Thus, regardless of their legality, the agency-shop
provisions in respondents’ various CBAs, which required nonmembers to nevertheless pay union
fees as a condition of employment with the District, had no evident impact on Conwell before
August 20, 2015. They certainly did not harm him in any direct fashion—if anything, they
arguably benefitted him, requiring nonmembers to pay dues to support a union of which he was a
member. Moreover, Conwell’s charges in this action did not seek any ruling concerning the
legality of the agency-shop provisions in the pre-2015 CBAs. Indeed, Conwell offered to file an
amended charge, which had already been prepared, clarifying that point.
Because Conwell’s instant charges regarded only harm to him arising out of the 2015
CBA’s provisions and respondents’ attempts, again in 2015, to enforce agency-shop provisions
against Conwell, his charges in this matter were timely under MCL 423.216(a) when they were
filed on November 9, 2015. Nor does this conclusion rest on an application of the now-defunct
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“continuing wrongs” doctrine. At the earliest, Conwell’s charges in this action accrued on
August 31, 2015, i.e., when respondents notified him that, despite his resignation, his continued
employment with the District was conditioned on his prospective payment of “a fair share fee” to
the respondent unions. Until such time, even if Conwell was fully aware of the terms of the
MOU and the then-existing CBAs, he had no reason to know that, despite the enactment of 2012
PA 349, respondents would insist—unlawfully, as discussed later—on his post-resignation
payment of a new sort of fee to the union that he had not been responsible for paying when he
was a dues-paying member. In other words, August 31, 2015, is the first date that Conwell
received notice both of “the act which caused his injury” and that said “act was improper or done
in an improper manner.” See Eady-Miskiewicz, 319 Mich. App. at 454 (quotation marks and
citation omitted; emphasis added).
B. STANDING
Respondents argue that MERC erred by holding that Conwell had standing to assert the
unfair-labor-practice charges at issue here. We again disagree.
In Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich. 349; 792 NW2d 686 (2010)
(LSEA), our Supreme Court broadly overhauled this state’s standing jurisprudence, overruling
Lee v Macomb Co Bd of Comm’rs, 464 Mich. 726; 629 NW2d 900 (2001), and its progeny. The
parties have not identified any post-LSEA published authority examining original (i.e., not
appellate) standing within the context of a MERC proceeding, and we are aware of none.
However, we can conceive of no reason why LSEA’s standing analysis would be inapplicable in
the instant context. Thus, we analyze this issue within the LSEA framework.
MCL 423.216 expressly provides for a statutory cause of action in MERC for violations
of MCL 423.210. Indeed, as discussed later in this opinion, Conwell’s statutory charges in this
matter were substantively meritorious. Because he had a viable cause of action, it necessarily
follows that he had standing to pursue it. See LSEA, 487 Mich. at 372 (“a litigant has standing
whenever there is a legal cause of action”).
C. RIPENESS
Respondents contend that MERC erred by holding that Conwell’s charges in this case
were ripe for adjudication. We disagree.
As an initial consideration, although the parties have not briefed the issue on appeal, we
question whether the justiciability doctrine of ripeness applies to MERC—as an administrative
agency—in the first instance. The issue is clouded, however, by an unsettled question
concerning the effect that LSEA may have had on Michigan’s ripeness jurisprudence.1
1
As explained at some length in Huntington Woods v Detroit, 279 Mich. App. 603, 614-616; 761
NW2d 127 (2008), before LSEA was decided, it was well-settled that questions concerning
justiciability—including standing and ripeness—were rooted in constitutional considerations
concerning the proper scope of judicial power. However, in LSEA, our Supreme Court overruled
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In any event, we need not consider or decide the issue here. Assuming, without deciding,
that the tacit legal premise of respondents’ instant argument is sound—that the ripeness doctrine
applies to MERC’s exercise of quasi-judicial power in the same way that it applies to a Michigan
court’s exercise of actual judicial power—respondents’ argument is nevertheless unpersuasive on
the merits. As explained in Huntington Woods v Detroit, 279 Mich. App. 603, 615-616; 761
NW2d 127 (2008):
The doctrine of ripeness is designed to prevent the adjudication of
hypothetical or contingent claims before an actual injury has been sustained. A
claim is not ripe if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all. [Quotation marks and citations
omitted; emphasis added.]
Conwell’s statutory cause of action against respondents under the PERA was premised entirely
on past events: respondents’ act of entering into the 2015 CBA, which included agency-shop
provisions, and their attempts to enforce those provisions against Conwell. Because nothing in
the PERA indicates that damages are an essential element of an unfair-labor-practice charge, no
future acts or contingencies, such as Conwell’s termination from the District, were required for
his charges in this matter to be ripe for adjudication. On the contrary, the “injury” redressed by
such statutory charges is the unfair labor practice itself, not any specific harm or damage flowing
all decisions cited in Huntington Woods in which our Supreme Court had previously held that
justiciability doctrines are based on the constitutional breadth of judicial power. LSEA, 487
Mich. at 371 & n 18. Indeed, the LSEA dissent questioned whether the majority’s decision had,
in addition to removing the constitutional underpinnings of standing, done the same with regard
to two other, closely related justiciability doctrines: mootness and ripeness. Id. at 429-431
(CORRIGAN, J., dissenting, joined by YOUNG and MARKMAN, JJ.). To our knowledge, our
Supreme Court has not addressed this issue again since LSEA was decided. It has yet to explain
what impact—if any—LSEA had on the constitutional basis of the ripeness doctrine.
Consequently, in the absence of further guidance, decisions of this Court have continued to treat
ripeness as an issue involving the constitutional scope of judicial power, relying on the decisions
that LSEA overruled for their not-directly-overruled holdings concerning ripeness. See, e.g.,
Van Buren Charter Twp v Visteon Corp, 319 Mich. App. 538, 553-554; 904 NW2d 192 (2017)
(Van Buren), oral argument on the application gtd 501 Mich. 1069 (2018), citing Mich
Chiropractic Council v Comm’r of Office of Fin & Ins Servs, 475 Mich. 363, 379; 716 NW2d 561
(2006) (opinion of YOUNG, J.), overruled by LSEA, 487 Mich. at 371 n 18.
If ripeness remains a constitutional doctrine that exists only to prevent the exercise of
judicial power over cases that present no actual controversy, see generally Van Buren, 319 Mich
App at 553-554 & n 1, then that doctrine presumably does not apply to the exercise of quasi-
judicial power by an administrative agency, such as MERC, adjudicating a statutory (i.e.,
legislatively created) cause of action like the one at issue here. See In re Complaint of Rovas,
482 Mich. 90, 98-99; 754 NW2d 259 (2008) (“Administrative agencies exercise what have been
described as ‘quasi-judicial’ powers. However, such power is limited and is not an exercise of
constitutional ‘judicial power.’ ”) (footnote omitted).
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from that unfair labor practice. See generally MCL 423.216 (providing a statutory cause of
action to redress “[v]iolations of the provisions of” MCL 423.210). To hold otherwise would be
to use the doctrine of ripeness to judicially graft a new element into unfair-labor-practice charges
pursued under the PERA—one that the Legislature did not see fit to include in MCL 423.216 or
MCL 423.210.
D. PROPRIETY OF “AGENCY-SHOP” PROVISIONS AND ENFORCEMENT
Respondents argue that, based on MERC’s erroneous interpretation of the
“unambiguous” terms of the MOU, MERC erred by concluding that respondents committed
unfair labor practices. In other words, respondents contend that MERC erred by concluding that
their disputed actions contravened MCL 423.210. We disagree.
In pertinent part, MCL 423.2092 provides:
(1) Public employees[3] may do any of the following:
(a) Organize together or form, join, or assist in labor organizations;[4]
engage in lawful concerted activities for the purpose of collective negotiation or
2
After relevant provisions of the PERA were amended by 2012 PA 349—but before Conwell
instituted this action—several of those provisions were again amended by 2014 PA 414,
effective December 30, 2014. Because the pertinent provisions were not altered by 2014 PA 414
in any way that is material to the instant analysis, this opinion does not analyze which temporal
version of each statute should be applied here, instead simply relying on the current versions (as
amended by 2014 PA 414).
3
MCL 423.2(e) provides:
“Employee” includes any employee, and is not limited to the employees of
a particular employer, unless the act explicitly provides otherwise, and includes
any individual whose work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any act that is illegal under this act, and
who has not obtained any other regular and substantially equivalent employment,
but does not include any individual employed as an agricultural laborer, or in the
domestic service of any family or any person at his home, or any individual
employed by his parent or spouse, or any individual employed as an executive or
supervisor, or any individual employed by an employer subject to the railway
labor act, 45 USC 151 to 188, or by any other person who is not an employer as
defined in this act.
4
Notably, for purposes of the PERA, the term “person” is defined as “includ[ing] an individual,
partnership, association, corporation, business trust, labor organization, or any other private
entity.” MCL 423.2(d).
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bargaining or other mutual aid and protection; or negotiate or bargain collectively
with their public employers[5] through representatives of their own free choice.
(b) Refrain from any or all of the activities identified in subdivision (a).
(2) No person[6] shall by force, intimidation, or unlawful threats compel or
attempt to compel any public employee to do any of the following:
(a) Become or remain a member of a labor organization or bargaining
representative or otherwise affiliate with or financially support a labor
organization or bargaining representative. [Emphasis added.]
On the other hand, MCL 423.210 provides, in pertinent part:
(1) A public employer or an officer or agent of a public employer shall not
do any of the following:
(a) Interfere with, restrain, or coerce public employees in the exercise of
their rights guaranteed in section 9 [i.e., MCL 423.209].
* * *
(2) A labor organization or its agents shall not do any of the following:
(a) Restrain or coerce public employees in the exercise of the rights
guaranteed in section 9. This subdivision does not impair the right of a labor
organization to prescribe its own rules with respect to the acquisition or retention
of membership.
* * *
5
MCL 423.2(e) provides:
“Employer” means a person and includes any person acting as an agent of
an employer, but does not include the United States or any corporation wholly
owned by the United States; any federal reserve bank; any employer subject to the
railway labor act, 45 USC 151 to 188; the state or any political subdivision
thereof; any labor organization, or anyone acting in the capacity of officer or
agent of such labor organization, other than when acting as an employer; or any
entity subject to 1947 PA 336, MCL 423.201 to 423.217.
6
Notably, for purposes of the PERA, the term “person” is defined as “includ[ing] an individual,
partnership, association, corporation, business trust, labor organization, or any other private
entity.” MCL 423.2(d).
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(3) Except as provided in subsection (4),[7] an individual shall not be
required as a condition of obtaining or continuing public employment to do any of
the following:
* * *
(c) Pay any dues, fees, assessments, or other charges or expenses of any
kind or amount, or provide anything of value to a labor organization or bargaining
representative.
* * *
(5) An agreement, contract, understanding, or practice between or
involving a public employer, labor organization, or bargaining representative that
violates subsection (3) is unlawful and unenforceable. This subsection applies
only to an agreement, contract, understanding, or practice that takes effect or is
extended or renewed after March 28, 2013.
Respondents’ argument of this issue is premised entirely on the emphasized sentence
immediately above (the grandfather provision). They contend that because they entered the
MOU before March 28, 2013, their subsequent entry into CBAs that included agency-shop
provisions was permissible under the grandfather provision, as were their attempts to enforce
such CBAs. This ignores the fact that the grandfather provision is found in § 10(5), “which by
its terms expressly applies only to agreements that violate Subsection (3) of § 10, MCL
423.210(3).” Taylor Sch Dist v Rhatigan, 318 Mich. App. 617, 631; 900 NW2d 699 (2016)
(Rhatigan). This distinction is important because, in light of this Court’s recent decision in
Rhatigan, even if the MOU and the relevant CBAs in this case were saved from being unlawful
under subsection (3) by the grandfather provision, respondents’ attempts to enforce an agency-
shop provision against Conwell nevertheless violated MCL 423.210(2)(a), for which there is no
such grandfather provision. See id. at 632 (“the proscriptions of 2012 PA 349 (other than those
in § 10(3)) do not apply only to contracts entered into after the effective date of the statutory
amendment”).
It is true that Rhatigan expressly ruled only with regard to whether the Taylor School
District had violated MCL 423.210(1)(a)—i.e., the provision that applies to a “public employer,”
such as a school district—not ruling on whether the union had violated the similar subsection,
MCL 423.210(2)(a), that applies to “a labor organization or its agents.” In our view, however,
the reasoning in Rhatigan applies with equal force to MCL 423.210(2)(a) and the facts presented
here. Regardless of whether the agency-shop provisions in this case were saved by the
grandfather provision, by attempting to enforce them against Conwell after March 28, 2013,
7
Subsection (4) is not at issue here because it relates to the labor practices of police agencies and
fire departments.
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respondents violated MCL 423.210(2)(a). Specifically, such attempts at enforcement constituted
an attempt to compel Conwell to financially support respondents, which was unlawful under
MCL 423.209(2)(a). In turn, under MCL 423.210(2)(a), such conduct constituted restraint or
coercion of Conwell’s “rights guaranteed in section 9,” i.e., MCL 423.209. In particular,
respondents restrained or coerced Conwell with regard to his right, after he chose to resign from
the respondent unions, “to be free of any responsibility to financially support a labor
organization.” See id. at 635. Thus, MERC did not err by deciding that respondents had
committed an unfair labor practice under MCL 423.210(2)(a).
Nor did MERC err by concluding that the grandfather provision of MCL 423.210(5) did
not, under the facts presented here, save respondents from liability from an unfair labor practice
under MCL 423.210(3). Even assuming, arguendo, that the MOU is lawful under MCL
423.210(3) because of the grandfather provision, it does not follow that the subsequent CBAs are
also lawful. The grandfather provision states that MCL 423.210(5) “applies only to an
agreement, contract, understanding, or practice that takes effect or is extended or renewed after
March 28, 2013.” MCL 423.210(5).8
It is undisputed that after March 28, 2013, respondents entered into several CBAs—
including the 2015 CBA that is at issue here—which included agency-shop provisions. Aside
from the fact that the “A” in the acronym “CBA” stands for “agreement,” it should be presumed
that the Legislature was aware, when it enacted 2012 PA 349, that CBAs have also been
recognized as a form of “contract.” See, e.g., Gogebic Community College Mich Ed Support
Personnel Ass’n v Gogebic Community College, 246 Mich. App. 342, 353; 632 NW2d 517 (2001)
(using the phrase “the collective bargaining agreement” and “the contract” as synonyms); see
also In re Medina, 317 Mich. App. 219, 227; 894 NW2d 653 (2016) (noting that when the
Legislature enacts new laws, it is presumed to be aware of existing judicial decisions). Thus, the
2015 CBA plainly qualifies as an “agreement” or a “contract” under the grandfather provision of
MCL 423.210(5). Moreover, respondents do not dispute MERC’s finding that they entered into
the 2015 CBA on or about September 1, 2015—far after March 28, 2013. As a matter of both
law and logic, the 2015 CBA could not have taken effect before there was mutual assent by all of
the parties to it. See Port Huron Ed Ass’n, MEA/NEA v Port Huron Area Sch Dist, 452 Mich.
309, 327; 550 NW2d 228 (1996) (“A collective bargaining agreement, like any other contract, is
the product of informed understanding and mutual assent.”). Indeed, respondents do not argue
that the 2015 CBA somehow took effect before March 28, 2013, and any such argument would
be specious. Respondents had prior CBAs covering the time period up until they entered into the
2015 CBA. Also, unlike other forms of contract, a CBA is “merely advisory until approved by”
MERC, and thus the 2015 CBA arguably did not “take[] effect” until it gained MERC’s
approval. See UAW, 498 Mich. at 295. In any event, for purposes of the grandfather provision,
8
As applied to the facts of this case, we see no need to consult dictionary definitions in order to
discern the plain meaning expressed by such language. See In re Brody Living Trust (On
Remand), ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 330871, issued August 7, 2018),
slip op at 3-4 (noting that there is no need to consult dictionary definitions when, in context, the
plain meaning of statutory language is apparent).
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the 2015 CBA was clearly an “agreement” or a “contract” that took effect sometime after March
28, 2013.
Consequently, MCL 423.210(5) applies to the 2015 CBA, and the 2015 CBA’s
provisions were thus unlawful if they failed to conform to the requirements set forth by MCL
423.210(3). There is no dispute that its agency-shop provisions did not. They conditioned
Conwell’s continued public employment with the District on his payment of a “fair share” fee to
the respondent unions despite his status as a nonmember. In the wake of 2012 PA 349, this
contravened MCL 423.210(3). See UAW v Green, 302 Mich. App. 246, 262-263, 279; 839 NW2d
1 (2013). For those reasons, we conclude that MERC did not err by deciding that the 2015
CBA’s inclusion of the contested agency-shop provisions constituted an unfair labor practice
under MCL 423.210(3).
E. CIVIL FINES
Finally, respondents posit that MERC erred by assessing a civil fine of $500 against each
respondent under MCL 423.210(8). We disagree.
Respondents offer no argument that MERC lacked authority (or jurisdiction) to assess the
$500 fines against respondents. Rather, respondents’ argument is premised entirely on their
contention that such fines under MCL 423.210(8) are effectively “punitive damages” and,
therefore, can only be imposed upon a finding of some improper intent on respondents’ behalf.
In support, they rely on Senior Accountants, Analysts & Appraisers Ass’n v City of Detroit, 60
Mich. App. 606, 613 n 2; 231 NW2d 479 (1975) (Senior Accountants) (“At the risk of generating
dicta, we note that the plaintiffs are correct in asserting that MERC lacks the authority to award
punitive damages, because such would not ‘effectuate the policies of’ the act.”), quoting MCL
423.216(b), as amended by 1965 PA 397.
For several reasons, respondents’ argument is meritless. To begin with, the cited portion
of Senior Accountants does not bind this Court because: (1) it pre-dates the November 1, 1990
conflict deadline, see MCR 7.215(J)(1); (2) it was self-recognized as nonbinding obiter dictum;
and (3) it interpreted the PERA as it existed in 1975, not as it exists today. More importantly,
respondents’ argument utterly ignores the language that our Legislature chose to employ in MCL
423.210(8). Specifically, despite the principle that “[n]othing will be read into a clear statute that
is not within the manifest intention of the Legislature as derived from the language of the statute
itself,” Polkton Charter Twp v Pellegrom, 265 Mich. App. 88, 102; 693 NW2d 170 (2005),
respondents fail to point to any language in the PERA that requires a finding of fault or intent on
a union’s behalf before a fine may be assessed against it under MCL 423.210(8). Respondents
also fail to explain how or why this Court should deem the “civil fine of not more than $500.00”
that is described in MCL 423.210(8) to not be a “civil fine” at all, but rather a form of “punitive
damages.”9 Indeed, we cannot embrace such a construction of MCL 423.210(8). Subsection (8)
9
Nor do respondents contend that the “civil fine” at issue here was, in effect, so punitive that it
should be considered a form of criminal punishment under the factors discussed in Dawson v
Secretary of State, 274 Mich. App. 723, 736; 739 NW2d 339 (2007).
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was added to MCL 423.210 by 2012 PA 349, and it has long10 been settled “that punitive
damages are available in Michigan only when expressly authorized by the Legislature.” Gilbert
v DaimlerChrysler Corp, 470 Mich. 749, 765; 685 NW2d 391 (2004). It would be inappropriate
to presume that the Legislature used the phrase “civil fine” in MCL 423.210(8) when it actually
meant “punitive damages.” See Polkton Charter Twp, 265 Mich. App. at 102 (“The first criterion
in determining intent is the specific language of the statute. The Legislature is presumed to have
intended the meaning it plainly expressed.”) (citations omitted).
Thus, we reject respondents’ instant claim of error. It has no basis in the relevant
statutory language, and respondents have provided no rationale explaining why the statutory
language can or should be ignored in this instance.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
10
See Eide v Kelsey-Hayes Co, 431 Mich. 26, 51; 427 NW2d 488 (1988) (GRIFFIN, J., concurring
in part and dissenting in part).
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