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Court of Appeals Issues Opinion on 2012 PERA Amendment

Brad Banasik

By Brad Banasik, MASB Legal Counsel/Director of Labor Relations & Policy

DashBoard, May 10, 2017

The Michigan Court of Appeals recently affirmed a decision of the Michigan Employment Relations Commission that found a union rule that only permits members to resign during a one-month window each year violates the Public Employment Relations Act.

In 2012, the PERA was amended by Public Act 349, which is commonly referred to as the right-to-work law. It generally prohibits public employees from having to join or financially support a union in order to keep their job.

Even before the PERA was amended to include the right-to-work language, many local education associations used “Continuing Membership Applications” that limited resignations from the union to a timeframe between Aug. 1 – 31 of any year. When the provision was enforced against a group of school employees who wished to resign from their unions outside of the one-month window, they filed unfair labor practice claims alleging the rule violates the right-to-work law.

Local education associations defended the resignation clause by asserting that the PERA specifically preserves a labor organization’s right to “prescribe its own rules with respect to the acquisition or retention of membership.”

The Court of Appeals, however, disagreed, concluding that a union may not make rules interfering with or restraining employees in the exercise of the right to refrain from union activity: “[T]he MERC did not commit a substantial and material error of law when it concluded that, in limiting resignation opportunities to one month each year, [the unions] were stepping beyond establishing membership policy and governance. . .and into the substantial forcing of continued union affiliation or support.”

The Court of Appeals also rejected the unions’ claim that the employees waived the right to discontinue union affiliation at will by voluntarily entering into the membership agreements, based on the rule of law that waivers of statutory rights must be clear and unambiguous. The Court observed that the restrictions on resignation opportunities merely reflected general union policy and the agreements did not define “membership” as to the obligation to pay dues or fees. Consequently, the employees did not clearly, explicitly and unambiguously waive their right to discontinue their financial support of their respective unions.

As a result of this decision, a school employee has the right to resign union membership at will, absent a clear, explicit and unmistakable waiver of that right. And, any rules that interfere with or restrain employees in the exercise of that right are unenforceable under the PERA, as amended by Public Act 349 of 2012.

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