10 Oct MICHIGAN EMPLOYMENT RELATIONS COMMISSION FINDS 10 YEAR UNION SECURITY AGREEMENT A VIOLATION OF THE RIGHT TO WORK ACT

In December 2012, the Michigan legislature passed legislation making Michigan the 24th state to enact right to work laws.  In summary, right to work laws prohibit an employer and a labor organization from entering into an agreement requiring that employees maintain employment or otherwise pay fees or financially support a labor organization as a condition of continuing employment.  Agreements requiring membership or financial support of a labor organization are commonly referred to as Union security agreements.  

In the absence of state right to work laws, and particularly in Michigan’s public sector, the requirement that an individual employee join the union and maintain union membership or pay representation or fair share fees was fairly common.  In addition, Michigan’s legislation contained specific provisions that the prohibition on Union security agreements would apply to agreements entered into after the effective date of the statute.  

Michigan’s right to work statute became effective March 28, 2013.  As a result, in the more than 90-days between the time legislation was passed and the time the legislation took effect, employers and labor organizations had an opportunity to enter into revised, modified, or extended contracts that could be entered into prior to the effective date of the statute and therefore avoid the right to work provision.  

The Taylor School District and the representatives of the school district’s teachers, the Taylor Federation of Teachers, entered into such an agreement.  In fact, the Taylor School District and the Taylor Federation of Teachers entered into two contracts.  One contract was dated January 31, 2013, and was scheduled to expire October 1, 2017.  However, the controversy presented in this case had to do a second contract dated February 7, 2013, and running until July 1, 2023, (in excess of 10 years), which provided for the union security provisions.  In other words, the parties entered into a separate agreement covering union security and regardless of other bargaining that may take place between the parties, employees would remain bound by a union security provision through July 1, 2023. 

In response to an unfair labor practice charge filed by three individual teachers, the Michigan Employment Relations Commission (MERC) ruled that the 10 year agreement was “excessive and unreasonable.”  MERC agreed with the individual teachers that the 10 year separate union security agreement requiring membership and/or financial support of a labor organization violated the right to work provisions of the statute.  The applicable provisions quoted by MERC stated as follows:

No person, 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.  

MERC went on to state as follows:

The answer is not found in the length of the contract, but in whether the employer has violated §10(1)(a) and (c) of PERA by interfering with, restraining, or coercing public employees in the exercise of rights guaranteed by §9 “in order to encourage membership in a labor organization.” (Emphasis added).  We hold that the Employer violated §10(1)(a) of PERA by coercing Charging Parties to financially support the Union.  

MERC also found an unfair labor practice by virtue of discrimination.  That is, MERC found that the 10 year agreement “demonstrated hostility toward Charging Parties’ protected rights by entering into a contract which compelled them to support the Union.”  MERC believed the record revealed hostility towards the Charging Parties’ protected rights was a substantial or motivating factor in the employer’s decision to enter into the Union Security Agreement.

Finally, MERC found that the Taylor Federation of Teachers (the labor organization) also violated the law by breaching its duty of fair representation.  In this regard, MERC indicated that “the Union acted arbitrarily, in a manner that discriminated against some bargaining unit members, and was indifferent to the interest of those members.”  MERC rejected the Union’s assertion that it was acting in the interest of all members simply because the majority of the membership ratified the agreement.  MERC ruled that imposing a lengthy financial burden on bargaining unit members in order to avoid the application of the state law for 10 years was arbitrary, indifferent, and reckless.  Therefore, it held that the Union committed an unfair labor practice in violation of Section 10(2)(a) and (c) of PERA.  

The MERC decision has been appealed to the Michigan Court of Appeals.