When Can Nonunion Members Vote on Labor Matters? MERC Explains

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Oct. 19, 2016

The Michigan Employment Relations Commission recently issued an order clarifying employee voting in the era of Right to Work in Davison Community Schools, MERC Case No. C15 A-004 (Sept. 20, 2016). We know from earlier cases that a union may require someone to be a member of the union in order to participate in a vote to ratify a collective bargaining agreement (see AFSCME Council 25 Local 1583, 28 MPER 33 (2014). What about other types of votes?

What Happened in the Case?

The CBA between the teachers and the district included a procedure through which the teachers and the union could deviate from the contract. The CBA required that at least two-thirds of impacted teachers vote for the deviation before it was referred to a Contract Management Committee.

The first deviation discussed in the case involved a deviation from the standard high school schedule to accommodate final exams. The union president, who was also a high school teacher, conducted the vote and only union members in good standing were given ballots. The district stated that it did not know that nonunion members of the bargaining unit were excluded from the vote. The deviation was considered approved and it was referred to the Contract Management Committee.

The second and third deviations involved changes to the daily elementary schedule and the middle school schedule during pep rally days. In those instances, the district polled all bargaining unit members and did not exclude nonunion members, over the objections of the union. The pep rally poll resulted in the deviation not passing, so no change was made to the middle school schedule.

What MERC Said—May the Union Limit Voting to Dues-Paying Members?

The union argued that section 10(1)(b) of the Public Employment Relations Act allowed the union to limit voting on a contract deviation to only union members in good standing. The union stated that since MERC has allowed the union to limit voting on contract ratification to only union members in good standing (see AFSCME Council 25 Local 1583, 28 MPER 33 (2014)), it should be allowed to limit voting on contract deviations to those same people.

MERC disagreed. It drew a distinction between contract ratification votes and the contract deviation. MERC states that contract ratification is part of the union’s representation process in collective bargaining, but the contract deviation process outlined in the Davison CBA substitutes the negotiation process, so union representation is not needed. Instead, the most affected employees had a direct vote in whether or not the deviation would go through.

What MERC Said—Was the Contract Deviation Process a Pilot Program and a Prohibited Subject of Bargaining?

The district argued that the contract deviation process was a pilot program under MCL 423.215 of PERA. MERC disagreed, pointing out that the district’s actions in treating the matters in question as deviations from the contract undercut its argument that the issues were prohibited subjects of bargaining.

What MERC Said—Did the Union Violate PERA 10(2)(C) Because it Attempted to Force the District to Stop Nonunion Members From Voting?

MERC says no. While the union objected to the district allowing nonunion members to vote, mere verbal objection is not sufficient to support a ULP claim. The union would have had to do something more, especially considering that the nonunion members were allowed to vote and their votes were counted.

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