In the final month of 2019, the Michigan Employment Relations Commission (MERC) released one noteworthy decision – finding that a union violated its duty of fair representation to an employee.
The facts in Technical Professional and Officeworkers Association of Michigan (TPOAM), Case No. CU18 J‑034, are straightforward. An employee, Daniel Renner, was disciplined by his employer in response to a complaint about him. When Renner asked his union, TPOAM, for documentation necessary to file a grievance, TPOAM told him it would only represent him if he pre‑paid TPOAM for grievance procedure services. TPOAM pointed to its operating procedure, which required non‑dues‑paying members like Renner to pay for services. Renner insisted that TPOAM file his grievance without pre‑payment, and TPOAM refused. Renner then filed with the MERC, asserting TPOAM breached its duty of fair representation.
TPOAM’s chief argument was premised on language from the United State Supreme Court’s recent decision in Janus v American Federation of State, County and Municipal Employees, 138 S Ct 2448 (2018). In Janus, the Court struck down an Illinois statute that allowed public sector unions to collect agency fees from employees. The decision contained language that suggested less onerous mechanisms were available to unions, such as conditioning union representation or service upon payment by employees who chose not to be union members. Pursuing that line of thought, TPOAM argued the Supreme Court had given unions its blessing to enact such measures for fiscal support.
The MERC disagreed, opining that TPOAM construed the Janus decision too broadly. The MERC conceded that Janus now allows states to pass legislation that authorizes unions to condition their services to non‑members upon pre‑payment. But, reasoned the MERC, Michigan had not passed any such law. To the contrary, its Right to Work legislation entitled employees in a bargaining unit to refrain from supporting a union. The MERC additionally noted that Janus did not overturn prevailing case law that required a union to fairly represent all bargaining unit members, regardless of whether the individual was a dues‑paying union member or not. Consequently, the MERC concluded that TPOAM and TPOAM’s operating procedure violated the Public Employment Relations Act by unlawfully discriminating against non‑union members and restraining employees in exercising their right to refrain from joining or assisting a labor organization, and by refusing to process Renner’s grievance.
The case is another loss for unions in a years‑long trend that has marked the erosion of union strength, particularly in Right to Work states. Unions continue to pursue avenues of fiscal solvency in an era during which courts have upheld states’ laws granting bargaining unit members the right to be free from entangling employment with financial support of unions. We doubt this case is the last we will see on the subject in the near future.
The decision may be accessed here.