By Jim Cline and Peter Haller
In Office Workers Association of Michigan v. Renner, the Michigan Supreme Court held charging service fees for non-paying members of a bargaining unit is a violation of the duty of fair representation. The Court reasoned that an exclusive bargaining unit takes on the responsibility to represent all members, regardless of whether or not they pay dues.
Daniel Renner, a groundskeeper in Michigan, does not pay union dues. As such, he is not a member of the Union and only a member of the exclusive bargaining unit of employees that the Union represents. In 2018, Renner sought Union assistance in filing a formal grievance against the Employer regarding co-workers smoking around him. The Union informed Renner that it would only assist him if he paid an individual service fee. Renner would need to pay $1,290.00 up front, plus any additional costs if the matter were to go to arbitration. Renner filed suit, alleging that the policy of imposing individual service fees was a violation of the Union’s duty of fair representation.
The Union argued that the Supreme Court, in its landmark case, Janus, expressly authorized the Union to impose individual service fees to non-paying bargaining unit members. In Janus, the Court held that the freedom of association rights found within the First Amendment prohibited compelled union fees. However, that individual service fees were permissible under a First Amendment analysis. The Union also cited two other Supreme Court cases precedent which upheld grievance fee policies for non-members.
The Court disagreed with the Union’s interpretation of the law in its application to Renner’s situation. The Court noted that although Michigan’s statute on the duty of fair representation did not require completely equal treatment in all areas, grievance administration did. The Court reasoned that,
“The way the grievance process is implemented by the exclusive representative of employees bears directly on the fruits of collective bargaining. The pay-for-service fee policy that the Union here seeks to uphold violates the duty of fair representation…”
The Court emphasized that when a Union becomes the “exclusive” bargaining unit, the Union becomes responsible for the fair representation of all bargaining unit employees within the jurisdiction. That duty extends to non-paying bargaining unit members as well.
In response to the Union’s Janus argument, the Court reasoned that the decision does not control here because the decision was analyzed under the First Amendment, not Michigan’s statute. The Court concluded that while the Janus decision held that the First Amendment does not prohibit the policy at issue here, Janus does nothing to expressly authorize the policy when it otherwise violates Michigan state law. Thus, the Union violated its duty of fair representation when it required a fee to consider the grievance of a non-paying member of the bargaining unit.
The Michigan Court decision has not been adopted as law in Washington State, and it appears to be contradicted by the express language in the Janus case. In Janus, the Supreme Court greenlighted service fees. It has been our position that, under the Janus language, service fees are legitimate and can be imposed.
**Visit our Premium Website for more information on Agency Shop and Union Dues**
