Taylor Sch. Dist. v. Rhatigan, Docket No. 326128.

• Decision Date: 13 December 2016
• Docket Number: Docket No. 326128.
• Citation: 900 N.W.2d 699,318 Mich.App. 617
• Parties: TAYLOR SCHOOL DISTRICT v. RHATIGAN.
• Court: Court of Appeal of Michigan — District of US

318 Mich.App. 617

900 N.W.2d 699

TAYLOR SCHOOL DISTRICT

v.RHATIGAN.

Docket No. 326128.

Court of Appeals of Michigan.

Submitted June 9, 2016, at Lansing.

Decided Dec. 13, 2016.

Approved for publication Feb. 9, 2017, at 9:00 a.m.

Mackinac Center Legal Foundation, Troy (by Derk A. Wilcox and Patrick J. Wright ) for the charging parties.

Mark H. Cousens, Southfield, for respondents.

Amici Curiae: John Radabaugh for the National Right to Work Legal Defense Foundation, Inc., White, Schneider, Young & Chiodini, PC (by Catherine E. Tucker), for the Michigan Education Association.

Before: MARKEY, P.J., and OWENS and BOONSTRA, JJ.

BOONSTRA, J.

Respondents, Taylor School District (the school district) and Taylor Federation of Teachers, AFT, Local 1085 (the union), appeal by petition to review the order of the Michigan Employment Relations Commission (MERC) reversing the findings of the administrative law judge (ALJ)¹ and entering a cease and desist order against respondents. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This appeal stems from a labor dispute that arose between Nancy Rhatigan and Rebecca Metz (the charging parties) and respondents after respondents executed a union security agreement. This case also presents the legal interplay between the union security agreement and 2012 PA 349,² which amended the public employment relations act (PERA), MCL 423.201 et seq. , effective March 28, 2013, and which makes it unlawful to require a public employee to financially support a labor organization. The charging parties are employees of the Taylor Board of Education and members of the bargaining unit represented by the union. It is undisputed that the union and the school district entered into a collective bargaining agreement (CBA) in February 2013 and that this CBA governed the wages and the terms and conditions of employment for members of the bargaining unit. The union and the school district also executed the union security agreement in February 2013, and while the CBA expires October 1, 2017, the union security agreement expires July 1, 2023.

The union security agreement provides, in pertinent part:

The Taylor School District and the Taylor Federation of Teachers agree that the Union's duties to persons employed in the bargaining unit require that each unit member share the costs associated with the negotiation of and administration of this collective bargaining agreement. Therefore, each person employed in the bargaining unit shall either become a member of the Taylor Federation of Teachers and pay dues required of members or agree to pay a service fee in an amount determined by the Union. A service fee will be deducted from the paychecks of persons who fail or refuse to do either. This section describes the process used to accomplish these goals. This agreement is made to reflect the parties' mutual goals of labor peace and bargaining unit continuity which both parties acknowledge to be valuable to each of them.

On August 6, 2013, the charging parties filed unfair labor practice charges against respondents under PERA. After a hearing, the ALJ recommended dismissal of the charges. The charging parties filed exceptions to the ALJ's recommendation with MERC. After reviewing the relevant facts and law, MERC agreed with the ALJ that the charging parties had standing to challenge the union security agreement and that MERC did not have the authority to inquire into the adequacy of consideration supporting the agreement. MERC also agreed with the ALJ that the union security agreement was not required to be of the same duration as the CBA. However, MERC held, contrary to the recommendation of the ALJ, that "the ten-year duration of the Union Security Agreement" was "excessive and unreasonable." MERC further held that the charging parties were correct in their assertion that the union security agreement "compels bargaining unit members to either remain in or to financially support a labor organization, a violation of § 9 of PERA[.]" MERC also disagreed with the ALJ's conclusion that the union had not violated its duty of fair representation to the charging parties when it entered into the union security agreement. MERC ordered respondents to cease and desist from enforcing the union security agreement against the charging parties. This appeal followed. This Court granted motions by the Michigan Education Association and the National Right to Work Legal Defense Foundation to file amicus briefs in this appeal.³

II. STANDARD OF REVIEW

In Calhoun Intermediate Sch. Dist. v. Calhoun Intermediate Ed. Ass'n, 314 Mich.App. 41, 46, 885 N.W.2d 310 (2016), this Court set forth the applicable standard of review from a decision of MERC.

"We review MERC decisions pursuant to Const. 1963, art. 6, § 28, and MCL 423.216(e)." Van Buren Co. Ed. Ass'n v. Decatur Pub. Sch., 309 Mich.App. 630, 639, 872 N.W.2d 710 (2015) (quotation marks and citation omitted). MERC's factual findings are "conclusive if they are supported by competent, material, and substantial evidence on the record considered as a whole." Police Officers Ass'n of Mich. v. Fraternal Order of Police, Montcalm Co. Lodge No. 149, 235 Mich.App. 580, 586, 599 N.W.2d 504 (1999) (quotation marks and citation omitted). "MERC's legal determinations may not be disturbed unless they violate a constitutional or statutory provision or they are based on a substantial and material error of law." Van Buren Co. Ed. Ass'n, 309 Mich.App. at 639 . We review de novo MERC's legal rulings. St. Clair Intermediate Sch. Dist. v. St. Clair Co. Ed. Ass'n, 245 Mich.App. 498, 513, 630 N.W.2d 909 (2001).

MERC has been entrusted with the interpretation and enforcement of PERA, an area of the law that has been described as very specialized and "politically sensitive." Van Buren Co. Ed. Ass'n, 309 Mich.App. at 638, 872 N.W.2d 710, quoting Kent Co. Deputy Sheriffs' Ass'n v. Kent Co. Sheriff, 238 Mich.App. 310, 313, 605 N.W.2d 363 (1999). To the extent that this Court's review of MERC's decision requires review of its application of PERA to the instant facts, "Michigan's judiciary traditionally accords deference to MERC's interpretation of PERA." Bedford Pub. Sch. v. Bedford Ed. Ass'n, MEA/NEA, 305 Mich.App. 558, 565, 853 N.W.2d 452 (2014). While this Court is certainly not bound by MERC's ultimate ruling on a question of law, this Court "will respectfully consider [MERC's] construction of a statute and provide cogent reasons for construing the statute differently." Id.

With regard to MERC's factual findings, this Court in Mount Pleasant Pub. Sch. v. Mich. AFSCME Council 25, AFL–CIO, 302 Mich.App. 600, 615, 840 N.W.2d 750 (2013), articulated the following governing principles:

"Th[e] evidentiary standard [for factual findings] is equal to the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance." City of Lansing v. Carl Schlegel, Inc., 257 Mich.App. 627, 630, 669 N.W.2d 315 (2003) (quotation marks and citations omitted). Further, "[r]eview of factual findings of the commission must be undertaken with sensitivity, and due deference must be accorded to administrative expertise. Reviewing courts should not invade the exclusive fact-finding province of administrative agencies by displacing an agency's choice between two reasonably differing views of the evidence." Amalgamated Transit Union, [Local 1564 v. Southeastern Mich. Transp. Auth., 437 Mich. 441, 450, 473 N.W.2d 249 (1991) ]. [ Mount Pleasant Pub. Sch., 302 Mich.App. at 615, 840 N.W.2d 750.]

This Court reviews de novo issues of statutory construction. Simpson v. Alex Pickens, Jr., & Assoc., MD., PC, 311 Mich.App. 127, 131, 874 N.W.2d 359 (2015).

III. BACKGROUND OF PERA AND 2012 PA 349

PERA is a state statute that governs the vital professional relationship between a governmental agency and its employees. See Van Buren Co. Ed. Ass'n, 309 Mich.App. at 640, 872 N.W.2d 710. PERA also reflects the Legislature's intent to make sure that public employees are protected against unfair labor practices by public employers and unions. Id. Engaging in conduct prohibited by PERA is an unfair labor practice under MCL 423.216, and it is remedied by MERC in accordance with PERA. Ranta v. Eaton Rapids Pub. Sch. Bd. of Ed., 271 Mich.App. 261, 266, 721 N.W.2d 806 (2006). A charging party bears the burden of proving an unfair labor practice. Mount Pleasant Pub. Sch., 302 Mich.App. at 614, 840 N.W.2d 750.

Section 9 of PERA, MCL 423.209, provides certain rights for public employees with respect to labor organizations. Before the adoption of 2012 PA 349, § 9 provided, in pertinent part:

It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice. [ MCL 423.209, as enacted by 1965 PA 379.]

2012 PA 349 amended § 9 to provide, in pertinent part:

(1) Public employees may do any of the following:

(a) Organize together or form, join, or assist in labor organizations; engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection; or negotiate or bargain collectively with their public employers through representatives of their own free choice.

(b) Refrain from any or all of the activities identified in subdivision (a).

(2) No person shall 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.

Section 10 of PERA, MCL 423.210, prohibits certain conduct...