Technical v. Renner
| Decision Date | 07 January 2021 |
| Docket Number | No. 351991,351991 |
| Parties | TECHNICAL, PROFESSIONAL AND OFFICEWORKERS ASSOCIATION OF MICHIGAN, Respondent-Appellant, v. Daniel Lee RENNER, Charging Party-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank A. Guido, Redford, and Christopher Tomasi for the Technical, Professional and Officeworkers Association of Michigan.
Before: O'Brien, P.J., and M. J. Kelly and Redford, JJ.
Redford, J. Respondent, the Technical, Professional and Officeworkers Association of Michigan, appeals as of right the Michigan Employment Relations Commission's (MERC) decision and order affirming an administrative law judge's (ALJ) decision and recommended order. The ALJ found that respondent's pay-for-services procedure violated respondent's duty of fair representation and § 10(2)(a)1 of the public employment relations act (PERA), MCL 423.201 et seq. , by unlawfully discriminating against charging party Daniel Renner, a nonunion member, and restraining him from exercising his § 92 statutory rights by refusing to represent him in a disciplinary dispute with the employer unless he paid respondent a fee for its services. MERC considered respondent's exceptions to the ALJ's decision and ruled that they lacked merit. MERC found that respondent's pay-for-services procedure violated § 10(2)(a) by discriminating against nonunion employees, that the procedure restrained them from exercising their § 9 statutory right to refrain from joining or assisting a labor organization, and that respondent breached its duty of fair representation by refusing to file or process Renner's grievance unless he paid a fee for its services. We affirm.
I. BACKGROUND
Renner, an employee of Saginaw County's grounds department, opted out of union membership in 2017 as permitted under §§ 9 and 10(3) of PERA. On September 6, 2018, Renner sent an e-mail to the Saginaw County Director of Maintenance, Bernard G. Delaney, Jr., regarding another employee smoking around Renner and the effect it had on his health. On September 19, 2018, Delaney responded in writing to Renner. In his response, Delaney concluded that Renner had made false claims against fellow employees and he provided Renner a written warning that included a caution that "Any further incidents will lead to progressive disciplinary action, up to and including discharge." On September 20, 2018, Renner filed a document with Delaney, which Renner described as a grievance procedure in accordance with "Saginaw County Policy Category 300, number 337" and "Policy 6.1.1" filing an appeal to his department head. Likewise, on September 20, 2018, Renner advised the president of the union local that he had submitted a grievance. On September 21, 2018, the business agent of the local union advised Renner that if he needed assistance in the grievance he would have to pay fees to the local.
On September 26, 2018, Delaney responded to Renner in writing, stating:
As indicated, after receiving the written reprimand in 2018, Renner submitted a Step 1 grievance opposing the reprimand. He also sent an e-mail to respondent, asking for the forms needed to complete a Step 2 grievance. Although Renner remained a member of the bargaining unit after opting out of union membership, respondent took the position that it owed Renner no duty to provide "direct representation services" unless he complied with the document titled "UNION OPERATING PROCEDURE: NONMEMBER PAYMENT FOR LABOR REPRESENTATION SERVICES" that the union adopted by resolution on July 23, 2018, which required nonmember employees to pay for requested direct representation services.
On September 27, 2018, respondent, through legal counsel, advised Renner that "the only process allowed to pursue a grievance, through the CBA [collective-bargaining agreement] steps, is via the Union," because the county could not directly deal with an individual employee of the bargaining unit in a grievance covered by the CBA. Respondent told Renner that "pursuit of an individual grievance is allowed under section 11 of PERA[.]" The e-mail referred to the "Union Operating Procedure," which it called its "pay-for-services procedure." Respondent's pay-for-services procedure states that a nonmember of the union "shall pay for the services to be rendered, in advance of the receipt of services ...." The resolution adopting the pay-for-services procedure distinguished between "direct labor representation services" and "collective labor representation services." According to the resolution, "direct labor representation services involve representation of a bargaining unit member in an individual capacity, in employment related issues including, but not limited to, critical incidents, investigatory interviews, grievance representation and arbitration, and administrative representation," whereas "collective labor representation services involve representation of the bargaining unit employees collectively, in circumstances such as collective bargaining, compulsory interest arbitration and certain unfair labor practice proceedings[.]" No payment is required for collective labor representation services.
Renner did not tender the $1,290 required by the union to assist him in the grievance process. The union took no further steps to assist Renner in the grievance process.
In October 2018, Renner filed a PERA charge with MERC, alleging that respondent had violated its duty of fair representation by demanding a fee in exchange for representation. Respondent admitted the factual grounds of Renner's charge but asserted that it could lawfully require payment for services under its procedure in light of the Supreme Court's decision in Janus v. American Federation of State, Co., & Muni. Employees , 585 U.S. ––––, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018). Respondent sought summary disposition of the charge, arguing that its procedure did not violate any provision of PERA and that it constituted action consistent with Janus and a decision of the Nevada Supreme Court that found a similar pay-for-services procedure permissible in the context of an analogous right-to-work statutory scheme.3
The ALJ denied respondent's motion and found that the pay-for-services procedure violated § 10(2)(a) by unlawfully discriminating against nonunion members and restraining them from exercising their § 9 right to refrain from joining or assisting a labor organization. Respondent filed exceptions to the ALJ's decision, which MERC rejected. Respondent now appeals.
II. STANDARDS OF REVIEW
Our review of MERC decisions is guided by 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). "MERC's findings of fact are conclusive if they are supported by competent, material, and substantial evidence on the record considered as a whole." Id. , quoting Branch Co. Bd. of Comm'rs v. Int'l Union, United Auto., Aerospace & Agricultural Implement Workers of America , 260 Mich. App. 189, 192-193, 677 N.W.2d 333 (2003) (quotation marks omitted). "An agency charged with executing a statute is entitled to respectful consideration of its construction of that statute and should not be overruled absent cogent reasons; however, an agency's interpretation cannot bind the courts or conflict with the Legislature's intent as expressed in the statutory language." Wayne Co. v. AFSCME Local 3317 , 325 Mich. App. 614, 634, 928 N.W.2d 709 (2018). In other words, although MERC's interpretation of PERA is entitled to "respectful consideration," we review de novo legal issues such as statutory interpretation. Van Buren Co. Ed. Ass'n , 309 Mich. App. at 639, 872 N.W.2d 710. Similarly, we review de novo questions of constitutional law. Saginaw Ed. Ass'n v. Eady-Miskiewicz , 319 Mich. App. 422, 450-451, 902 N.W.2d 1 (2017). " ‘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, 872 N.W.2d 710, quoting Branch Co. Bd. of Comm'rs , 260 Mich. App. at 193, 677 N.W.2d 333.
" ‘The primary goal of statutory interpretation is to ascertain the legislative intent that may reasonably be inferred from the statutory language.’ " Van Buren Co. Ed. Ass'n , 309 Mich. App. at 643, 872 N.W.2d 710, quoting Krohn v. Home-Owners Ins. Co. , 490 Mich. 145, 156, 802 N.W.2d 281 (2011). Absent ambiguity in the statutory language, we must enforce the statute as written, "without any additional judicial construction." Wayne Co. , 325 Mich. App. at 634, 928 N.W.2d 709. We must also strive to "give effect to every word, phrase, and clause in a statute, avoiding a construction that would render any part of the statute nugatory or surplusage." Id. Decisions of the National Labor Relations Board (NLRB) regarding provisions of the National Labor Relations Act (NLRA), 29 USC 151 et seq. , that are comparable to PERA provisions serve as persuasive authority respecting the interpretation of...
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