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### STATE OF MICHIGAN

COURT OF APPEALS

TAYLOR SCHOOL DISTRICT and TAYLOR FEDERATION OF TEACHERS, AFT, LOCAL 1085,

Respondents-Appellants, UNPUBLISHED December 13, 2016

APPROVED FOR

PUBLICATION February 9, 2017

v No. 326128

MERC NANCY RHATIGAN and REBECCA METZ, LC Nos. 13-000133; 13-000029

Charging Parties-Appellees.

Before: M ARKEY , P.J., and O WENS and B OONSTRA , JJ.

O WENS

, J. ( dissenting ).

I respectfully dissent from the majority’s affirmance of the M ichigan Employment Relations Commission’s (MERC) findings that the school district committed unfair labor practices in violation of sections 10(1)(a) and (c) 1 of the public employment relations act (PERA), 2 and that the union committed an unfair labor practice in viola tion of sections 10(2)(a) and (c) 3 and, therefore, breached its d uty of fair representation.

At the time the union and the sc hool district executed the Feb ruary 2013 union security agreement, the Public Employment Relations Act (PERA), MCL 423. 201 et seq ., authorized public employees to organize for the purpose of collective barg aining, MCL 423.209, and precluded a public employer or an officer or an agent of a publ ic employer from interfering with, restraining, or coercing public employees in the exercise of th eir rights guaranteed in section 9, MCL 423.210(1)(a), and from discri minating in regard to hire, t erms, or other conditions of employment to encourage or discourage membership in a labor org anization, MCL 423.210(1) (c). PERA provided, however, that

1 MCL 423.210(1)(a) and (c).

2 MCL 423.201 et seq.

3 MCL 423.210(2)(a) and (c).-2- this act or other law of this state does not preclude a public employer from making an agreement with an exclus ive bargaining representative . . . to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining repre sentative.” [MCL 423.210(1)(c).]

Thus, PERA did not preclude the school district and the union f rom entering into the union security agreement and requiring all employees in the bargainin g unit, including non-members of the bargaining unit, to pay a serv ice fee equivalent to the amo unt of dues required of members of the bargaining unit.

There can be no dispute that i f the school district and the un ion had entered into the union security agreement after the e ffective date of 2012 PA 349 the agreement would not be enforceable under PERA, as amended, because section 10(3)(c) 4 of the act gives public employees the right to not financially support a labor organiza tion or bargaining representative. However, the union security agreement in this case was executed in February 2013 after a lengthy period of collectiv e bargaining. Section 10(5) 5 of PERA, as amended, provides in part that that any agreement between a public employer and labor org anization that violates section 10(3) is unlawful and unenforceable, unless such an agreement was already in effect when 2012 PA 349 took effect – which was on March 28, 2013. I would find that PERA, as ame nded, clearly and explicitly permits t he enforcement of union securit y agreements entered into before

that date. Because the school d istrict and the union entered i nto the union security agreement before March 28, 2013, I would hold that actions taken by eithe r respondent to enforce the terms of the agreement would not violate PERA, as amended.

Nonetheless, the majority finds that the union security agreem ent is not enforceable on other grounds. The majority conc ludes that MERC properly found that the school district engaged in unfair labor practi ces under section 10(1)(a) “by co ercing Charging Parties to financially support the union” and that the school district’s e nforcement of the union security agreement discriminated against the charging parties in violati on of section 10(1)(c) by violating their protected right under PERA, as amended, to not financiall y support a labor organization. However, as previously noted, the charging parties did not have a protected right to be free of any obligation to financially support a labor organization or b argaining representative at the time of the contract negotiations a nd ratification of the union secu rity agreement. 6 Thus, I would find that MERC’s rulings that the school district had coerced the ch arging parties into financially supporting the union in violation of their rights, and that the school district acted with hostility toward the charging parties’ rights to refrain from financially supporting a labor organization, were not grounded in a fair and r easonable interpretation of PE RA.

4 MCL 423.210(3)(c).

5 MCL 423.210(5).

6 On January 14, 2013, the union and the school district reached agreement on the terms of the CBA to replace a contract that had expired on August 16, 2011.-3- The majority also concludes th at MERC properly found that the union’s conduct in acting in a manner that would compel employees of the bargaining unit to support the union for 10 years beyond the effective date of 2012 PA 349 rose to the leve l of arbitrary conduct in violation of the union’s duty of fair repr esentation and, therefore, cons tituted an unfair labor practice in violation of sections 10(2)(a) and (c). In Ann Arbor Fire Fighters Local 1733 , MERC Decision & Order (Case No. CU88 F-34), MERC refused to declare a 10-year pension moratorium agreement invalid for being “too long to be consistent with PER A’s goal of pro moting good faith bargaining.” MERC stated:

The employer suggests that we should step in to invalidate any agreement between parties to a collective bargaining relationship which i s unconscionably long. In support of this proposition it cites several cases fi nding employer proposals for 5-year contracts, together with other conduct, to be evidence of badfaith bargaining under the National Labor Relations Act (NLRA), 29 USC 150. The reasoning in these cases is that the employer clearly knew that its proposals would be unacceptable to the union. Therefore, the proposals t hemselves were evidence of the employer’s fixed intention not to reach any agr eement with the union. The issue in these cases was the employer’s good faith negotiations. These cases do not stand for the proposition that a 5-year coll ective bargaining agreement is per se invalid under the NLRA.

We are not authorized by PERA to police the content of agreeme nts to redress imbalances of bargaining power between the parties. No r are we willing to hold that parties may not ent er into a bargaining waiver of 10 years duration without violating the Act. . . . . [T]he parties clearly and unmistakably agreed to a 10-year pension moratorium. While the scope of the agreement may be in dispute, the length of it is not . . . . . Again, however, our task is to determine the parties’ bargaining rights and obligations under PERA, not to r eform their contract. (Citations omitted).

Similarly, in this case, the sc hool district a nd the union cle arly and unmistakably agreed to a 10-year union security agreement. The mere fact that the parties were aware of the pending effective date of 2012 PA 349 does not, in my view, demonstrate that the union acted arbitrarily in entering into an agreement that it determined to be in the b est interests of the bargaining unit

as a whole.

In sum, I would reverse MERC’s decision that the school distri ct committed unfair labor practices in violation of sections 10(1)(a) and (c) and that th e union committed an unfair labor practice in violation of sections 10(2)(a) and (c) and as a res ult breached its duty of fair representation and, therefore, I would reverse the cease and de sist order against respondents.

/s/ Donald S. Owens