By Correy E. Stephenson
A union violated its duty of fair representation with its policy requiring a nonmember to pay for services before it would review and process a matter through the collective bargaining agreement’s grievance process, the Michigan Supreme Court has held in a matter of first impression.
“The fee policy applies to only nonunion employees within the relevant bargaining unit, such as [the charging party], and deprives those nonunion employees of access to the grievance administration process that they are compelled to use pursuant to the collective bargaining agreement unless they pay the demanded fee,” Justice Elizabeth M. Welch wrote. “The Union also has not obligated itself to make an initial assessment of the potential merit of a nonunion employee’s grievance unless and until the required fee has been paid. Under such circumstances, the Union’s fee policy violates the duty of fair representation.”
The court’s unanimous decision is Technical, Professional & Officeworkers Association of Michigan v. Renner (MiLW 07-107938, 41 pages).
Birmingham attorney David A. Porter of Kienbaum Hardy Viviano Pelton and Forrest, who represented the charging party, noted that there has been confusion in this area of the law.
“The bottom line for employees, at least in the public sector, is that unions don’t have free reign to require nonunion members to pay for union services,” he told Michigan Lawyers Weekly. “If you are going to have a union, then representation of nonmembers must occur on the same terms as members.”
Redford attorney Frank A. Guido, who serves as general counsel to the Police Officers Association of Michigan and its affiliate organizations, did not respond to a request for comment.
Pay for services
A groundskeeper employed by Saginaw County, Daniel Renner opted out of dues-paying membership with the Technical, Professional and Officeworkers Association of Michigan, the union that represents his bargaining unit, in 2017.
In 2018, Renner submitted a complaint claiming that another employee smoked around him and that it negatively affected his health. The complaint was deemed to be a false claim and Renner was warned that any further incidents would lead to progressive disciplinary action.
Renner attempted to invoke a grievance but was notified that he was precluded from using the process because he was a member of a bargaining unit represented by the union.
When he reached out to the union, Renner was told that if he needed assistance with the grievance, he would have to pay $1,290 for this service in accordance with the union’s rules and procedures.
He refused to pay the fee; the union took no further steps to assist him with his grievance.
Renner then filed an unfair labor practice challenge with the Michigan Employment Relations Commission, or MERC, alleging that the union violated its duty of fair representation by demanding a fee in exchange for direct representation services.
An administrative law judge sided with Renner; MERC agreed, as did a panel of the Court of Appeals.
The union appealed to the state’s highest court.
Duty of fair representation
The duty of fair representation has a long history in both federal and Michigan labor law, the court explained, derived from the National Labor Relations Act, or NLRA, in a series of decisions from the U.S. Supreme Court over 60 years ago.
“[A]t its core, the duty of fair representation entitles all members of a bargaining unit to be treated in a generally fair and nonarbitrary manner by the union that represents them,” Welch summarized, noting that while there is substantial overlap between the duty of fair representation and statutorily proscribed unfair labor practices, the duty of fair representation is broader.
The justice said the issue here whether charging a fee to public sector bargaining unit members who are not members of the relevant union for direct representation services is consistent with the duty of fair representation presented a matter of first impression. She looked to precedent from the NLRB and decisions from other courts for guidance.
The NLRB has considered the question many times, albeit in the context of private sector labor disputes, with the agency consistently reaching the same conclusion.
“[U]nder the NLRA, charging nonunion members of a bargaining unit a separate fee for the processing of grievances and direct representation services in grievance proceedings is a violation of the duty of fair representation,” the court said.
Looking to the public sector, Welch noted decisions from Georgia and Nevada , where the courts permitted a policy similar to the one at issue.
With this background, she found that the union’s policy violated the duty of fair representation for several reasons.
Nonunion employees of a bargaining unit do not always have to be treated the same as union members in all regards, the justice acknowledged but grievance administration is different.
“Grievance processing and arbitration are a critical aspect of the collective bargaining process, through which unions wield significant power as the exclusive representatives of a bargaining unit,” Welch.
When a union exercises its authority in a way that treats the prospective grievance of two employees within a bargaining unit differently in substantial and material ways based solely on union membership status, the duty of fair representation will typically be violated, she said.
Further, when exercising its discretion as to whether a grievance should be processed or pursued, a union must at least make a preliminary determination as to the merits of the grievance before deciding whether to pursue it.
“The union’s policy here requires no such initial determination and, in fact, would allow the union to completely ignore a nonmember’s grievance unless and until the nonmember pays the fee demanded,” the justice said.
Following the “long line” of decisions from the NLRB, Welch said charging only nonunion employees within a bargaining unit for services that union members receive as a part of annual dues is “antithetical to the exclusive representative status of unions,” as employees face a stark choice to either pay the price for help or forego it entirely.
“The ability of a union to collectively represent employees is dependent on employees sharing the burden of supporting that representation through the payment of dues,” she wrote. “As an exclusive representative, however, unions take on the responsibility of representing all employees, even those who withhold their financial support. We therefore hold that the duty of fair representation does not permit this form of discriminatory treatment between union members and nonmembers in the absence of express legislation authorizing such charges by public sector unions.”
While the U.S. Supreme Court’s decision in Janus v. AFSCME Council 31 suggested that charging individual nonmember employees for specific services that a union provides would survive a First Amendment challenge, any speculation beyond that was dicta, Welch said, adding that the Janus court did not analyze whether such fees would be consistent with the duty of fair representation.
Moreover, Janus cited two examples authorizing fair-share fees to be charged for the costs associated with representative union services, but both involved statutory permission to charge the fees, the court pointed out.
“While there might be creative legislative solutions that could assist public and private labor organizations with addressing the longstanding free-rider problem, we decline to erode the duty of fair representation in the manner the union asks of the court today,” Welch concluded.
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