Clarkston Education Association v. Ron Conwell

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CLARKSTON EDUCATION ASSOCIATION UNPUBLISHED

and MICHIGAN EDUCATION ASSOCIATION, January 10, 2019

Respondents-Appellants,

v No. 340470

MERC

RON CONWELL, Case No. 15-059437

Charging Party-Appellee.

Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

In this labor dispute concerning a collective bargaining agreement (CBA), respondents

Clarkston Education Association (CEA) and Michigan Education Association (MEA)

(collectively, “respondents” or “the respondent unions”) appeal as of right an order of the

Michigan Employment Relations Commission (MERC). Among other things, MERC concluded

that respondents had committed an unfair labor practice by attempting to enforce an unlawful

collective bargaining provision against the charging party, teacher Ron Conwell of the Clarkston

Community School District, which required Conwell to continue paying a “fair share” fee to the

respondent unions after he resigned his membership in them. We affirm.

I. FACTUAL BACKGROUND

This case arises out of actions that respondents took in response to 2012 PA 349, which is

one of the public acts that are “commonly known as the ‘Right to Work’ laws[.]” See UAW v

Green, 498 Mich 282, 284; 870 NW2d 867 (2015). Specifically, this case arises out of a

memorandum of understanding (MOU) respondents entered into with the Clarkston Community

School District (the District) in hopes that it would permit them to “grandfather” certain labor

practices into both their extant and future CBAs before the effective date of 2012 PA 349, at

which time such practices became unlawful.

On appeal, the parties do not contest any of MERC’s stated factual findings or those of

the administrative law judge (ALJ), which MERC adopted in whole. The order appealed aptly

explained that

[t]he material facts in this matter are not in dispute.

Respondents were parties to a collective bargaining agreement (2012

[CBA]) covering September 1, 2012 through August 31, 2013. The 2012 [CBA]

contained a union security clause providing that if a teacher failed to pay union

dues or the service fee, the union president could request that the teacher’s

employment be terminated at the close of the school year, and the teacher would

be dismissed in accordance with applicable law.

On December 11, 2012, the Michigan Legislature passed 2012 PA 349

(Act 349), which amended [the public employment relations act (PERA), MCL

423.201 et seq]. The changes to PERA included language expressly providing

that public employees have a right to refrain from union activity. Other changes

made union security clauses illegal for collective bargaining agreements affecting

most public employees covered by PERA. Act 349 became effective March 28,

2013.

On March 21, 2013, [the District], Respondent Unions [i.e., respondents

CEA and MEA], and two other MEA affiliates representing other bargaining units

employed by [the District] entered into a memorandum of understanding (MOU)

which provided:

1. [The District] and Union agree that the agency or closed

shop provisions (“Agency Shop”) in the collectively bargained

agreements between [the District] and the Union are hereby

extended for a period not to exceed the term of the applicable,

successor collectively bargained agreement but said extension, in

each case, is contingent and conditioned upon ratification and

execution of all successor collectively bargained agreements

between [the District] and the Union by on or before midnight on

June 15, 2013. It is further acknowledged that [the District], at its

option, may revoke and terminate Agency Shop in the event that

any unit of Union is unable to observe the applicable deadline for

ratification and execution of a successor collectively bargained

agreement Union agrees that it will not legally challenge any such

revocation or termination. The parties agree that this MOU does

not constitute the settlement of or a successor to any collectively

bargained agreement between [the District] and Union, that this

MOU creates no binding precedent or past practice and that it does

not establish a pattern of bargaining or constitute multiple unit

bargaining, the multi-party nature of this MOU being for the mere

convenience of the parties hereto.

2. In consideration of the [District] agreements contained

in Paragraph 1 of this MOU, Union agrees that it shall, at its sole

cost and expense and through counsel acceptable to [the District],

defend and hold harmless [the District]. . . .

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3. This MOU is effective upon ratification by the parties

which will in no case be later than March 26, 2013 and expires on

June 30, 2016.

On June 15, 2013, Respondents entered into a new collective bargaining

agreement (2013 [CBA]) covering September 1, 2013 through August 31, 2014.

The 2013 [CBA] included the agency shop language from the Respondents’ 2012

[CBA]. On September 22, 2014, Respondents entered into a successor collective

bargaining agreement (2014 [CBA]) containing the same agency fee language and

covering the period from September 22, 2014 through August 31, 2015.

As explained in the ALJ’s proposed decision:

On August 20, 2015, [charging party] Conwell sent a letter to the MEA

resigning his union membership. Conwell also stated in his letter that the agency

fee clause in the Respondents’ collective bargaining agreement expiring on

August 31, 2015, was illegal under Michigan’s “Right to Work” law. Conwell

went on to inform the Union that he expected immediate release from all

obligations of membership and, if he could currently be lawfully compelled to pay

union fees under Michigan law as a condition of his employment, that he invoked

his rights under Abood [v Detroit Bd of Ed, 431 US 209; 97 S Ct 1782; 52 L Ed

2d 261 (1977), since overruled by Janus v American Federation of State, Co, &

Mun Employees, Council 31, ___ US ___; 138 S Ct 2448; 201 L Ed 2d 924

(2018)]. Conwell received a reply from the MEA dated August 31, 2015, stating

that it had accepted his resignation, but that he was “a member of a bargaining

unit that has a collective bargaining agreement in effect which requires all

members of the bargaining unit, as a condition of employment, to either be

members of the Association [i.e., respondent unions] or to pay a fair share fee to

the Association.”

On or about September 1, 2015, Respondents entered into another

collective bargaining agreement for the term September 1, 2015, through June 30,

2017. This agreement included the same agency fee clause as the previous

agreements, but included a clause stating that the article was “null and void and of

no further force and effect after June 30, 2016, in accordance with the

Memorandum of Understanding between the District and the Association

executed on March 21, 2013.”

On October 8, 2015, Conwell’s legal counsel sent a letter to the

Respondents asserting that under the terms of the 2013 MOU, the new Right to

Work Law fully applied to Conwell and other members of his bargaining unit the

day after the successor agreement referenced in the first paragraph of the 2013

MOU expired. According to Conwell’s counsel, this was September 1, 2014.

The letter argued that the agency fee clauses in the [2014 CBA] and [2015 CBA]

were therefore null and void from their inception because both agreements were

entered into, and became effective, after the new Right to Work Law was

applicable to Conwell’s bargaining unit. Conwell’s counsel stated that since

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Conwell had paid all his membership dues for the 2014-2015 school year, he had

no further obligation to pay union dues or fees to the Union. The letter alleged

that the Union was violating Conwell’s legal right to refrain from assisting a labor

organization by “demanding that he owes a fair share fee,” and that the

Respondents had violated employees’ rights by entering into collective bargaining

agreements containing agency shop clauses in violation of the Right to Work law.

The letter demanded that the Union cease and desist from attempting to enforce

the agency shop clause, cease and desist from demanding payment of a fair share

fee from Conwell, update its records to reflect that Conwell did not owe a fair

share fee, and send Conwell written confirmation that he does not owe a fair share

fee.

Neither Conwell nor his counsel received a response to the October 8

letter. On November 9, 2015, Conwell filed the instant charges. In December

2015, the MEA sent Conwell the packet of materials it sends annually to non-

members covered by agency fee clauses. Along with information, the packet

included a service fee election form that included three choices for employees

who did not want to be union members: paying a service equal to the amount of

dues less the cost of the liability insurance the MEA provides to its members,

paying a Union-determined reduced service fee, and paying the reduced service

fee and challenging the amount of the fee pursuant to the procedure described in

the packet. The materials also directed Conwell to send a check or money order

for the “pro rata amount due pursuant to the Service Fee Election Form

Worksheet.” The materials stated if the non-member did not submit the election

form with a check or money order by January 19, 2016, he or she would be

“required to pay a service fee equal to association dues less the pro rata cost of

liability insurance.” According to an affidavit by Conwell attached to his motion

for summary disposition, he checked the box on the service fee election form

stating that he wished to pay a reduced service fee in order to protect his right to

pay only the reduced fee if he lost his unfair labor practice case. Conwell

returned the service fee election form to the MEA but did not send money.

After Conwell instituted this action, respondents filed a joint motion seeking summary

disposition. Conwell also moved for summary disposition. Ultimately, MERC ruled in

Conwell’s favor in all regards, and this appeal ensued.

II. STANDARD OF REVIEW

As recently explained in Calhoun Intermediate Sch Dist v Calhoun Intermediate Ed

Ass’n, 314 Mich App 41, 46; 885 NW2d 310 (2016):

We review MERC decisions pursuant to Const 1963, art 6, § 28, and MCL

423.216(e). MERC’s factual findings are conclusive if they are supported by

competent, material, and substantial evidence on the record considered as a

whole. MERC’s legal determinations may not be disturbed unless they violate a

constitutional or statutory provision or they are based on a substantial and

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material error of law. We review de novo MERC’s legal rulings. [Quotations

marks and citations omitted.]

III. ANALYSIS

Respondents assert several claims of error on appeal. We examine each in turn.

A. STATUTE OF LIMITATIONS

Respondents argue that MERC erred by concluding that Conwell’s charges in this action

were timely under the six-month limitations period provided by MCL 423.216(a). We disagree.

As this Court recently explained in Saginaw Ed Ass’n v Eady-Miskiewicz, 319 Mich App

422, 454; 902 NW2d 1 (2017) (Eady-Miskiewicz):

But for an exception relating to persons serving in the armed forces, a

person bringing an unfair-labor-practice charge before the MERC must do so

within six months of the act engendering the charge. MCL 423.216(a). That

limitation period “commences when the person knows of the act which caused his

injury and has good reason to believe that the act was improper or done in an

improper manner.” Huntington Woods v Wines, 122 Mich App 650, 652; 332

NW2d 557 (1983). “[I]t is not necessary that the person recognize that he has

suffered invasion of a legal right.” Id. [Second alteration in original.]

The “continuing-wrongs” or “continuing violations” doctrine does not apply to unfair-labor-

practice charges under MCL 423.216(a). Eady-Miskiewicz, 319 Mich App at 455. See also

Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 290; 696 NW2d 646

(2005), amended on other grounds 473 Mich 1205 (2005) (holding that the continuing wrongs

“doctrine has no continued place in the jurisprudence of this state”); Froling Revocable Living

Trust v Bloomfield Hills Country Club, 283 Mich App 264, 286; 769 NW2d 234 (2009) (holding

that Garg wrought “the complete abrogation of the continuing wrongs doctrine in the

jurisprudence of this state”).

Respondents do not contest MERC’s finding that Conwell resigned from the respondent

unions effective August 20, 2015. As MERC aptly noted, before that time, Conwell remained a

dues-paying member of those unions. Thus, regardless of their legality, the agency-shop

provisions in respondents’ various CBAs, which required nonmembers to nevertheless pay union

fees as a condition of employment with the District, had no evident impact on Conwell before

August 20, 2015. They certainly did not harm him in any direct fashion—if anything, they

arguably benefitted him, requiring nonmembers to pay dues to support a union of which he was a

member. Moreover, Conwell’s charges in this action did not seek any ruling concerning the

legality of the agency-shop provisions in the pre-2015 CBAs. Indeed, Conwell offered to file an

amended charge, which had already been prepared, clarifying that point.

Because Conwell’s instant charges regarded only harm to him arising out of the 2015

CBA’s provisions and respondents’ attempts, again in 2015, to enforce agency-shop provisions

against Conwell, his charges in this matter were timely under MCL 423.216(a) when they were

filed on November 9, 2015. Nor does this conclusion rest on an application of the now-defunct

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“continuing wrongs” doctrine. At the earliest, Conwell’s charges in this action accrued on

August 31, 2015, i.e., when respondents notified him that, despite his resignation, his continued

employment with the District was conditioned on his prospective payment of “a fair share fee” to

the respondent unions. Until such time, even if Conwell was fully aware of the terms of the

MOU and the then-existing CBAs, he had no reason to know that, despite the enactment of 2012

PA 349, respondents would insist—unlawfully, as discussed later—on his post-resignation

payment of a new sort of fee to the union that he had not been responsible for paying when he

was a dues-paying member. In other words, August 31, 2015, is the first date that Conwell

received notice both of “the act which caused his injury” and that said “act was improper or done

in an improper manner.” See Eady-Miskiewicz, 319 Mich App at 454 (quotation marks and

citation omitted; emphasis added).

B. STANDING

Respondents argue that MERC erred by holding that Conwell had standing to assert the

unfair-labor-practice charges at issue here. We again disagree.

In Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010)

(LSEA), our Supreme Court broadly overhauled this state’s standing jurisprudence, overruling

Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001), and its progeny. The

parties have not identified any post-LSEA published authority examining original (i.e., not

appellate) standing within the context of a MERC proceeding, and we are aware of none.

However, we can conceive of no reason why LSEA’s standing analysis would be inapplicable in

the instant context. Thus, we analyze this issue within the LSEA framework.

MCL 423.216 expressly provides for a statutory cause of action in MERC for violations

of MCL 423.210. Indeed, as discussed later in this opinion, Conwell’s statutory charges in this

matter were substantively meritorious. Because he had a viable cause of action, it necessarily

follows that he had standing to pursue it. See LSEA, 487 Mich at 372 (“a litigant has standing

whenever there is a legal cause of action”).

C. RIPENESS

Respondents contend that MERC erred by holding that Conwell’s charges in this case

were ripe for adjudication. We disagree.

As an initial consideration, although the parties have not briefed the issue on appeal, we

question whether the justiciability doctrine of ripeness applies to MERC—as an administrative

agency—in the first instance. The issue is clouded, however, by an unsettled question

concerning the effect that LSEA may have had on Michigan’s ripeness jurisprudence.1

1

As explained at some length in Huntington Woods v Detroit, 279 Mich App 603, 614-616; 761

NW2d 127 (2008), before LSEA was decided, it was well-settled that questions concerning

justiciability—including standing and ripeness—were rooted in constitutional considerations

concerning the proper scope of judicial power. However, in LSEA, our Supreme Court overruled

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In any event, we need not consider or decide the issue here. Assuming, without deciding,

that the tacit legal premise of respondents’ instant argument is sound—that the ripeness doctrine

applies to MERC’s exercise of quasi-judicial power in the same way that it applies to a Michigan

court’s exercise of actual judicial power—respondents’ argument is nevertheless unpersuasive on

the merits. As explained in Huntington Woods v Detroit, 279 Mich App 603, 615-616; 761

NW2d 127 (2008):

The doctrine of ripeness is designed to prevent the adjudication of

hypothetical or contingent claims before an actual injury has been sustained. A

claim is not ripe if it rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all. [Quotation marks and citations

omitted; emphasis added.]

Conwell’s statutory cause of action against respondents under the PERA was premised entirely

on past events: respondents’ act of entering into the 2015 CBA, which included agency-shop

provisions, and their attempts to enforce those provisions against Conwell. Because nothing in

the PERA indicates that damages are an essential element of an unfair-labor-practice charge, no

future acts or contingencies, such as Conwell’s termination from the District, were required for

his charges in this matter to be ripe for adjudication. On the contrary, the “injury” redressed by

such statutory charges is the unfair labor practice itself, not any specific harm or damage flowing

all decisions cited in Huntington Woods in which our Supreme Court had previously held that

justiciability doctrines are based on the constitutional breadth of judicial power. LSEA, 487

Mich at 371 & n 18. Indeed, the LSEA dissent questioned whether the majority’s decision had,

in addition to removing the constitutional underpinnings of standing, done the same with regard

to two other, closely related justiciability doctrines: mootness and ripeness. Id. at 429-431

(CORRIGAN, J., dissenting, joined by YOUNG and MARKMAN, JJ.). To our knowledge, our

Supreme Court has not addressed this issue again since LSEA was decided. It has yet to explain

what impact—if any—LSEA had on the constitutional basis of the ripeness doctrine.

Consequently, in the absence of further guidance, decisions of this Court have continued to treat

ripeness as an issue involving the constitutional scope of judicial power, relying on the decisions

that LSEA overruled for their not-directly-overruled holdings concerning ripeness. See, e.g.,

Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 553-554; 904 NW2d 192 (2017)

(Van Buren), oral argument on the application gtd 501 Mich 1069 (2018), citing Mich

Chiropractic Council v Comm’r of Office of Fin & Ins Servs, 475 Mich 363, 379; 716 NW2d 561

(2006) (opinion of YOUNG, J.), overruled by LSEA, 487 Mich at 371 n 18.

If ripeness remains a constitutional doctrine that exists only to prevent the exercise of

judicial power over cases that present no actual controversy, see generally Van Buren, 319 Mich

App at 553-554 & n 1, then that doctrine presumably does not apply to the exercise of quasi-

judicial power by an administrative agency, such as MERC, adjudicating a statutory (i.e.,

legislatively created) cause of action like the one at issue here. See In re Complaint of Rovas,

482 Mich 90, 98-99; 754 NW2d 259 (2008) (“Administrative agencies exercise what have been

described as ‘quasi-judicial’ powers. However, such power is limited and is not an exercise of

constitutional ‘judicial power.’ ”) (footnote omitted).

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from that unfair labor practice. See generally MCL 423.216 (providing a statutory cause of

action to redress “[v]iolations of the provisions of” MCL 423.210). To hold otherwise would be

to use the doctrine of ripeness to judicially graft a new element into unfair-labor-practice charges

pursued under the PERA—one that the Legislature did not see fit to include in MCL 423.216 or

MCL 423.210.

D. PROPRIETY OF “AGENCY-SHOP” PROVISIONS AND ENFORCEMENT

Respondents argue that, based on MERC’s erroneous interpretation of the

“unambiguous” terms of the MOU, MERC erred by concluding that respondents committed

unfair labor practices. In other words, respondents contend that MERC erred by concluding that

their disputed actions contravened MCL 423.210. We disagree.

In pertinent part, MCL 423.2092 provides:

(1) Public employees[3] may do any of the following:

(a) Organize together or form, join, or assist in labor organizations;[4]

engage in lawful concerted activities for the purpose of collective negotiation or

2

After relevant provisions of the PERA were amended by 2012 PA 349—but before Conwell

instituted this action—several of those provisions were again amended by 2014 PA 414,

effective December 30, 2014. Because the pertinent provisions were not altered by 2014 PA 414

in any way that is material to the instant analysis, this opinion does not analyze which temporal

version of each statute should be applied here, instead simply relying on the current versions (as

amended by 2014 PA 414).

3

MCL 423.2(e) provides:

“Employee” includes any employee, and is not limited to the employees of

a particular employer, unless the act explicitly provides otherwise, and includes

any individual whose work has ceased as a consequence of, or in connection with,

any current labor dispute or because of any act that is illegal under this act, and

who has not obtained any other regular and substantially equivalent employment,

but does not include any individual employed as an agricultural laborer, or in the

domestic service of any family or any person at his home, or any individual

employed by his parent or spouse, or any individual employed as an executive or

supervisor, or any individual employed by an employer subject to the railway

labor act, 45 USC 151 to 188, or by any other person who is not an employer as

defined in this act.

4

Notably, for purposes of the PERA, the term “person” is defined as “includ[ing] an individual,

partnership, association, corporation, business trust, labor organization, or any other private

entity.” MCL 423.2(d).

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bargaining or other mutual aid and protection; or negotiate or bargain collectively

with their public employers[5] through representatives of their own free choice.

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

(2) No person[6] 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. [Emphasis added.]

On the other hand, MCL 423.210 provides, in pertinent part:

(1) A public employer or an officer or agent of a public employer shall not

do any of the following:

(a) Interfere with, restrain, or coerce public employees in the exercise of

their rights guaranteed in section 9 [i.e., MCL 423.209].

* * *

(2) A labor organization or its agents shall not do any of the following:

(a) Restrain or coerce public employees in the exercise of the rights

guaranteed in section 9. This subdivision does not impair the right of a labor

organization to prescribe its own rules with respect to the acquisition or retention

of membership.

* * *

5

MCL 423.2(e) provides:

“Employer” means a person and includes any person acting as an agent of

an employer, but does not include the United States or any corporation wholly

owned by the United States; any federal reserve bank; any employer subject to the

railway labor act, 45 USC 151 to 188; the state or any political subdivision

thereof; any labor organization, or anyone acting in the capacity of officer or

agent of such labor organization, other than when acting as an employer; or any

entity subject to 1947 PA 336, MCL 423.201 to 423.217.

6

Notably, for purposes of the PERA, the term “person” is defined as “includ[ing] an individual,

partnership, association, corporation, business trust, labor organization, or any other private

entity.” MCL 423.2(d).

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(3) Except as provided in subsection (4),[7] an individual shall not be

required as a condition of obtaining or continuing public employment to do any of

the following:

* * *

(c) Pay any dues, fees, assessments, or other charges or expenses of any

kind or amount, or provide anything of value to a labor organization or bargaining

representative.

* * *

(5) An agreement, contract, understanding, or practice between or

involving a public employer, labor organization, or bargaining representative that

violates subsection (3) is unlawful and unenforceable. This subsection applies

only to an agreement, contract, understanding, or practice that takes effect or is

extended or renewed after March 28, 2013.

Respondents’ argument of this issue is premised entirely on the emphasized sentence

immediately above (the grandfather provision). They contend that because they entered the

MOU before March 28, 2013, their subsequent entry into CBAs that included agency-shop

provisions was permissible under the grandfather provision, as were their attempts to enforce

such CBAs. This ignores the fact that the grandfather provision is found in § 10(5), “which by

its terms expressly applies only to agreements that violate Subsection (3) of § 10, MCL

423.210(3).” Taylor Sch Dist v Rhatigan, 318 Mich App 617, 631; 900 NW2d 699 (2016)

(Rhatigan). This distinction is important because, in light of this Court’s recent decision in

Rhatigan, even if the MOU and the relevant CBAs in this case were saved from being unlawful

under subsection (3) by the grandfather provision, respondents’ attempts to enforce an agency-

shop provision against Conwell nevertheless violated MCL 423.210(2)(a), for which there is no

such grandfather provision. See id. at 632 (“the proscriptions of 2012 PA 349 (other than those

in § 10(3)) do not apply only to contracts entered into after the effective date of the statutory

amendment”).

It is true that Rhatigan expressly ruled only with regard to whether the Taylor School

District had violated MCL 423.210(1)(a)—i.e., the provision that applies to a “public employer,”

such as a school district—not ruling on whether the union had violated the similar subsection,

MCL 423.210(2)(a), that applies to “a labor organization or its agents.” In our view, however,

the reasoning in Rhatigan applies with equal force to MCL 423.210(2)(a) and the facts presented

here. Regardless of whether the agency-shop provisions in this case were saved by the

grandfather provision, by attempting to enforce them against Conwell after March 28, 2013,

7

Subsection (4) is not at issue here because it relates to the labor practices of police agencies and

fire departments.

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respondents violated MCL 423.210(2)(a). Specifically, such attempts at enforcement constituted

an attempt to compel Conwell to financially support respondents, which was unlawful under

MCL 423.209(2)(a). In turn, under MCL 423.210(2)(a), such conduct constituted restraint or

coercion of Conwell’s “rights guaranteed in section 9,” i.e., MCL 423.209. In particular,

respondents restrained or coerced Conwell with regard to his right, after he chose to resign from

the respondent unions, “to be free of any responsibility to financially support a labor

organization.” See id. at 635. Thus, MERC did not err by deciding that respondents had

committed an unfair labor practice under MCL 423.210(2)(a).

Nor did MERC err by concluding that the grandfather provision of MCL 423.210(5) did

not, under the facts presented here, save respondents from liability from an unfair labor practice

under MCL 423.210(3). Even assuming, arguendo, that the MOU is lawful under MCL

423.210(3) because of the grandfather provision, it does not follow that the subsequent CBAs are

also lawful. The grandfather provision states that MCL 423.210(5) “applies only to an

agreement, contract, understanding, or practice that takes effect or is extended or renewed after

March 28, 2013.” MCL 423.210(5).8

It is undisputed that after March 28, 2013, respondents entered into several CBAs—

including the 2015 CBA that is at issue here—which included agency-shop provisions. Aside

from the fact that the “A” in the acronym “CBA” stands for “agreement,” it should be presumed

that the Legislature was aware, when it enacted 2012 PA 349, that CBAs have also been

recognized as a form of “contract.” See, e.g., Gogebic Community College Mich Ed Support

Personnel Ass’n v Gogebic Community College, 246 Mich App 342, 353; 632 NW2d 517 (2001)

(using the phrase “the collective bargaining agreement” and “the contract” as synonyms); see

also In re Medina, 317 Mich App 219, 227; 894 NW2d 653 (2016) (noting that when the

Legislature enacts new laws, it is presumed to be aware of existing judicial decisions). Thus, the

2015 CBA plainly qualifies as an “agreement” or a “contract” under the grandfather provision of

MCL 423.210(5). Moreover, respondents do not dispute MERC’s finding that they entered into

the 2015 CBA on or about September 1, 2015—far after March 28, 2013. As a matter of both

law and logic, the 2015 CBA could not have taken effect before there was mutual assent by all of

the parties to it. See Port Huron Ed Ass’n, MEA/NEA v Port Huron Area Sch Dist, 452 Mich

309, 327; 550 NW2d 228 (1996) (“A collective bargaining agreement, like any other contract, is

the product of informed understanding and mutual assent.”). Indeed, respondents do not argue

that the 2015 CBA somehow took effect before March 28, 2013, and any such argument would

be specious. Respondents had prior CBAs covering the time period up until they entered into the

2015 CBA. Also, unlike other forms of contract, a CBA is “merely advisory until approved by”

MERC, and thus the 2015 CBA arguably did not “take[] effect” until it gained MERC’s

approval. See UAW, 498 Mich at 295. In any event, for purposes of the grandfather provision,

8

As applied to the facts of this case, we see no need to consult dictionary definitions in order to

discern the plain meaning expressed by such language. See In re Brody Living Trust (On

Remand), ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 330871, issued August 7, 2018),

slip op at 3-4 (noting that there is no need to consult dictionary definitions when, in context, the

plain meaning of statutory language is apparent).

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the 2015 CBA was clearly an “agreement” or a “contract” that took effect sometime after March

28, 2013.

Consequently, MCL 423.210(5) applies to the 2015 CBA, and the 2015 CBA’s

provisions were thus unlawful if they failed to conform to the requirements set forth by MCL

423.210(3). There is no dispute that its agency-shop provisions did not. They conditioned

Conwell’s continued public employment with the District on his payment of a “fair share” fee to

the respondent unions despite his status as a nonmember. In the wake of 2012 PA 349, this

contravened MCL 423.210(3). See UAW v Green, 302 Mich App 246, 262-263, 279; 839 NW2d

1 (2013). For those reasons, we conclude that MERC did not err by deciding that the 2015

CBA’s inclusion of the contested agency-shop provisions constituted an unfair labor practice

under MCL 423.210(3).

E. CIVIL FINES

Finally, respondents posit that MERC erred by assessing a civil fine of $500 against each

respondent under MCL 423.210(8). We disagree.

Respondents offer no argument that MERC lacked authority (or jurisdiction) to assess the

$500 fines against respondents. Rather, respondents’ argument is premised entirely on their

contention that such fines under MCL 423.210(8) are effectively “punitive damages” and,

therefore, can only be imposed upon a finding of some improper intent on respondents’ behalf.

In support, they rely on Senior Accountants, Analysts & Appraisers Ass’n v City of Detroit, 60

Mich App 606, 613 n 2; 231 NW2d 479 (1975) (Senior Accountants) (“At the risk of generating

dicta, we note that the plaintiffs are correct in asserting that MERC lacks the authority to award

punitive damages, because such would not ‘effectuate the policies of’ the act.”), quoting MCL

423.216(b), as amended by 1965 PA 397.

For several reasons, respondents’ argument is meritless. To begin with, the cited portion

of Senior Accountants does not bind this Court because: (1) it pre-dates the November 1, 1990

conflict deadline, see MCR 7.215(J)(1); (2) it was self-recognized as nonbinding obiter dictum;

and (3) it interpreted the PERA as it existed in 1975, not as it exists today. More importantly,

respondents’ argument utterly ignores the language that our Legislature chose to employ in MCL

423.210(8). Specifically, despite the principle that “[n]othing will be read into a clear statute that

is not within the manifest intention of the Legislature as derived from the language of the statute

itself,” Polkton Charter Twp v Pellegrom, 265 Mich App 88, 102; 693 NW2d 170 (2005),

respondents fail to point to any language in the PERA that requires a finding of fault or intent on

a union’s behalf before a fine may be assessed against it under MCL 423.210(8). Respondents

also fail to explain how or why this Court should deem the “civil fine of not more than $500.00”

that is described in MCL 423.210(8) to not be a “civil fine” at all, but rather a form of “punitive

damages.”9 Indeed, we cannot embrace such a construction of MCL 423.210(8). Subsection (8)

9

Nor do respondents contend that the “civil fine” at issue here was, in effect, so punitive that it

should be considered a form of criminal punishment under the factors discussed in Dawson v

Secretary of State, 274 Mich App 723, 736; 739 NW2d 339 (2007).

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was added to MCL 423.210 by 2012 PA 349, and it has long10 been settled “that punitive

damages are available in Michigan only when expressly authorized by the Legislature.” Gilbert

v DaimlerChrysler Corp, 470 Mich 749, 765; 685 NW2d 391 (2004). It would be inappropriate

to presume that the Legislature used the phrase “civil fine” in MCL 423.210(8) when it actually

meant “punitive damages.” See Polkton Charter Twp, 265 Mich App at 102 (“The first criterion

in determining intent is the specific language of the statute. The Legislature is presumed to have

intended the meaning it plainly expressed.”) (citations omitted).

Thus, we reject respondents’ instant claim of error. It has no basis in the relevant

statutory language, and respondents have provided no rationale explaining why the statutory

language can or should be ignored in this instance.

Affirmed.

/s/ Brock A. Swartzle

/s/ David H. Sawyer

10

See Eide v Kelsey-Hayes Co, 431 Mich 26, 51; 427 NW2d 488 (1988) (GRIFFIN, J., concurring

in part and dissenting in part).

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