On January 10, 2019, the Michigan Court of Appeals released its unpublished opinion in Clarkston Ed Ass’n v Conwell, Case No. 340470. After the Legislature passed the Right to Work legislation in 2012, union members attained the right to refrain from union activity. Seizing on the opportunity, Conwell left the union. However, the union and school district had previously entered into a collective bargaining agreement (CBA) that required teachers to pay union fees, and failure to do so permitted the union president to request that the teacher’s employment be terminated at the end of the school year. Even after the Right to Work legislation passed, the language was included in extensions to the CBA. The union then attempted to force Conwell to pay a fee even after he ended his union membership. Conwell filed an unfair labor practice.
In a split decision – the dissenting judge opined that Conwell had not timely filed his unfair labor practice charge – the Court of Appeals upheld the Michigan Employment Relation Commission’s finding that the union committed an unfair labor practice. Among other issues, the court analyzed whether the language in the CBA, and enforcement of that language, violated Conwell’s rights. The union argued that the provisions at issue in the CBA were grandfathered in by legislation in the Public Employment Relations Act. However, the court reasoned that even if the language in the CBA had been permissibly grandfathered into the at‑issue CBA, the enforcement of that provision was an unlawful attempt to compel Conwell to financially support the union. Consequently, the union committed an unfair labor practice, and Conwell was not required to pay fees to the union.
Conwell extends to unions recent case law that was applied to public employers in Taylor Sch Dist v Rhatigan, 318 Mich App 617, 900 NW2d 699 (2016). The case continues a trend in Michigan that emphasizes employees’ rights not to associate with unions, and there will almost certainly be more cases that test the boundaries of permissible union activity. Stay tuned.