KHVPF Insight
Michigan Supreme Court Invalidates Union’s Pay-for-Service Policy
In Technical, Professional, and Officeworkers Association of Michigan v. Renner, the Michigan Supreme Court addressed the legality of public-sector union policies requiring non-union members to pay fees for services. In Renner, the union represented dues-paying members in “direct representation” matters like grievances and arbitrations without charge, but required non-union members to pay a fee for those services. Renner was not a union member, but under the collective bargaining agreement at issue, he was required to use the Union to file grievances on his behalf. When he tried to bring a grievance, the Union refused to consider it unless he paid an initial $1,290 under its pay-for-service policy. In a unanimous decision, the Michigan Supreme Court held that the Union violated its duty of fair representation by conditioning Mr. Renner’s access to the grievance process on payment of a fee that it did not charge to dues-paying members. The Supreme Court reiterated that the duty of fair representation generally requires a union “to serve the interests of all members without hostility or discrimination” and “to exercise its discretion with complete good faith.” Goolsby v City of Detroit, 419 Mich 651, 661 (1984), quoting Vaca v Sipes, 386 US 171, 177 (1967). But the Union’s pay-for- service policy violated this duty in three ways.
First, it discriminated between bargaining unit members on an impermissible basis (union membership) regarding an important facet of their relationship with their employer: the grievance process. Second, it allowed the Union to make arbitrary decisions without considering the merits of the potential grievance. Third, it was “antithetical to the exclusive representative status of unions,” whose status makes them responsible for “representing all employees, even those who withhold their financial support.”
This is an important win for public sector employees and employers, and Michigan labor law generally. The Court considered the Union’s “hired agent” vision of union power—in which a union’s duty to represent bargaining unit members is conditioned on financial support—but “decline[d] to erode the duty of fair representation in the manner the Union ask[ed].” As the amicus brief from the Michigan Public Employer Labor Relations Association explained, the Union’s argument would have made it possible for multiple, warring factions of unionized workers within the same bargaining unit, unsettling the predictability and consistency that employers have come to rely on with an exclusive representative. The Court’s decision avoids those and other major disruptions to Michigan’s labor law that would come from the Union’s argument, while providing an important reminder of where public-sector unions derive their power: the consent of the governed.
Although TPOAM’s policy appears to have been unique (the four largest public-sector unions filed an amicus brief expressly disclaiming TPOAM’s policy as antithetical to their mission), public sector employers should nonetheless review existing union agreements and policies to ensure they align with Renner. Any policies that require nonunion employees to pay for services that are provided to union members as part of their dues should be re-evaluated and modified as necessary.