                          STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN R. BANK,                                                       FOR PUBLICATION
                                                                     May 26, 2016
               Plaintiff-Appellant,                                  9:00 a.m.

v                                                                    No. 326668
                                                                     Oakland Circuit Court
MICHIGAN EDUCATION ASSOCIATION-NEA                                   LC No. 2014-139221-CL
and NOVI EDUCATION ASSOCIATION MEA-
NEA,

               Defendants-Appellees.


Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J.

        Plaintiff appeals by right the trial court’s dismissal of her claims on the grounds that the
trial court lacked subject matter jurisdiction. We agree and affirm.

        Plaintiff is a teacher in the Novi Community School District and was a member of
defendants, both of which are unions. When plaintiff became a member in 2002, she signed, in
relevant part, a “Continuing Membership Application” authorizing the deduction of dues and
fees “unless I revoke this authorization in writing between August 1 and August 31 of any year.”
Plaintiff’s collective bargaining agreement expired on June 30, 2013, but defendants deemed the
Continuing Membership Application as a separate basis for ongoing membership and payment of
dues or fees. Plaintiff attempted to resign her membership in September of 2013, outside the
August window, without sending a letter of resignation. Defendants rejected that resignation, but
accepted plaintiff’s subsequent letter of resignation in August of 2014.

        Plaintiff commenced the instant action, seeking several items of declaratory and
injunctive relief, all premised on the Public Employee Relations Act (PERA), MCL 423.201 et
seq., as amended in 2012 by the law called, in the vernacular, the “Right to Work” law, which as
enacted permits employees to take advantage of collective bargaining agreements without
actually paying any collective bargaining units for their collective bargaining efforts.
Specifically, plaintiff contends that the changes in the law rendered any contractual agreement to
pay dues or resign only during August illegal or unenforceable, so she therefore is entitled to
resign at any time and owes no outstanding fees or dues. Plaintiff also contends that defendants
breached their duty of fair representation by failing to advise her of the change in the law and its
relevant effect. The trial court concluded that plaintiff’s PERA claims were under the exclusive

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jurisdiction of the Michigan Employment Relations Commission (MERC), that her claims of
breach of duty of fair representation should be heard by MERC pursuant to the doctrine of
primary jurisdiction, and the remainder of her claims were either outside the court’s jurisdiction
or were “hypothetical and moot.” The trial court therefore granted summary disposition in favor
of defendants.

         A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “[A] challenge to subject-matter
jurisdiction may be raised at any time, even if raised for the first time on appeal.” Smith v Smith,
218 Mich App 727, 729-730; 555 NW2d 271 (1996). “Whether the trial court had subject-matter
jurisdiction is a question of law that this Court reviews de novo.” Steiner School v Ann Arbor
Twp, 237 Mich App 721, 730; 605 NW2d 18 (1999). We review de novo questions of statutory
interpretation, with the fundamental goal of giving effect to the intent of the Legislature.
Weakland v Toledo Engineering Co, Inc, 467 Mich 344, 347; 656 NW2d 175, amended on other
grounds 468 Mich 1216 (2003). We likewise review de novo as a question of law the propriety
of a trial court’s decision regarding equitable relief on the facts as found by the court, but we will
disturb those factual findings only if we find them clearly erroneous. McDonald v Farm Bureau
Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008). A trial court’s decision whether to grant or
deny injunctive relief is reviewed for an abuse of discretion. Pontiac Fire Fighters Union Local
376 v City of Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008).

        Plaintiff contends that she alleged a valid contract claim. We disagree. Her contract
asserts no such claim. The gravamen of her claims as articulated in her complaint is that PERA,
as amended in 2012, absolved her of any obligations to defendants, and defendants should have
both advised her of that fact and honored it. Plaintiff articulates an argument to the general
effect that no other contractual clauses or agreements to which she assented exist that alternately
bind her to any dues or membership obligations. However, it appears plaintiff raised those
arguments not for the purpose of asserting a claim based on contract, but rather to rebut an
argument made by defendants. A contractual argument does not necessarily transform any of
plaintiff’s claims into contractual claims.

        PERA governs public sector labor relations, and “MERC alone has jurisdiction and
administrative expertise to entertain and reconcile competing allegations of unfair labor practices
and misconduct under the PERA.” Rockwell v Bd of Ed, 393 Mich 616, 630; 227 NW2d 736
(1975); see also Kent Co Deputy Sheriffs’ Ass’n v Kent Co Sheriff, 463 Mich 353, 354-364, 362;
616 NW2d 677 (2000), distinguishing a FOIA request made to a union from a request “to
remedy a violation of the PERA or of the collective bargaining agreement.” Pursuant to MCL
423.216, “[v]iolations of the provisions of [MCL 423.210] shall be deemed to be unfair labor
practices remediable by [MERC].” In one such provision, MCL 423.210(2)(a) prohibits labor
organizations or their agents from “[r]estrain[ing] or coerc[ing] public employees in the exercise
of the rights guaranteed in [MCL 423.209].”

      Plaintiff’s claims particularly pertain to the right contained in MCL 423.209(2)(a) as
amended by the 2012 “Right to Work” law, which now states in relevant part:



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              (2) No person shall by force, intimidation, or unlawful threats compel or
       attempt to compel any public employee to do any of the following:

                                             * * *

               (b) Refrain from engaging in employment or refrain from joining a labor
       organization or bargaining representative or otherwise affiliating with or
       financially supporting a labor organization or bargaining representative.

We note that MCL 423.210(3) contains another, similar prohibition against requiring
membership in a collective bargaining organization, and MCL 423.209(3) provides an express
fine for violation of § 9(2). However, neither of those provisions affects the plain language of
MCL 423.210(2)(a) or MCL 423.209(2)(a). Notably, the Legislature did not change MCL
423.210(2)(a) when it enacted the “Right to Work” law in 2012. We find that the plain language
of the statute makes all of the provisions of MCL 423.209, including MCL 423.209(2)(a),
“right[] guaranteed in section 9” under MCL 423.210(2)(a). Therefore, the violation thereof by
defendants alleged by plaintiff is an “unfair labor practice[]” pursuant to MCL 423.216.

        Because the MERC has exclusive jurisdiction over plaintiff’s claim regarding a PERA
violation, the trial court did not err in granting summary disposition in favor of defendants
pursuant to MCR 2.116(C)(4). Furthermore, because it dismissed the claims on jurisdictional
grounds, the trial court did not err in denying plaintiff’s motion for summary disposition under
MCR 2.116(C)(10); indeed, it could have done nothing else. See Fox v Board of Regents of the
Univ of Mich, 375 Mich 238, 242-243; 134 NW2d 146 (1965).

        Plaintiff next contends that the trial court erroneously dismissed her claim of breach of
duty of fair representation. We disagree.

        A person may assert a claim that a labor organization has breached its duty of fair
representation in either an administrative or a judicial proceeding. Demings v Ecorse, 423 Mich
49, 63-64; 377 NW2d 275 (1985). However, the doctrine of primary jurisdiction can be raised
“‘whenever enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administrative body.’” Attorney
General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d 805 (1982), quoting United
States v Western P R Co, 352 US 59, 63-64; 77 S Ct 161; 1 L Ed 2d 126 (1956). The doctrine
requires the trial court to stay further proceedings to permit the parties a reasonable opportunity
to obtain an administrative ruling. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 207;
631 NW2d 733 (2001).

       Our Supreme Court has set forth a three-part test for courts to consider in determining the
question of primary jurisdiction:

       First, a court should consider the extent to which the agency’s specialized
       expertise makes it a preferable forum for resolving the issue. Second, it should
       consider the need for uniform resolution of the issue. Third, it should consider the
       potential that judicial resolution of the issue will have an adverse impact on the
       agency’s performance of its regulatory responsibilities. [Rinaldo’s Constr Corp v


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       Michigan Bell Tel Co, 454 Mich 65, 71; 559 NW2d 647 (1997) (internal
       quotations omitted).]

“Where applicable, courts of general jurisdiction weigh these considerations and defer to
administrative agencies where the case is more appropriately decided before the administrative
body.” Id. at 71-72. We find that they weigh in favor of deferring to MERC.

        First, MERC has specialized expertise in ruling on the provisions of the PERA. It “is the
sole agency charged with the interpretation and enforcement of” public-sector labor law. Cherry
Growers, Inc v Michigan Processing Apple Growers, Inc, 240 Mich App 153, 164; 610 NW2d
613 (2000). The recent amendments to PERA and their effect on defendants’ duties to their
members require the agency’s specialized knowledge of a complicated area of law. Second,
there is a need for uniform and consistent application of labor practices. See Cherry Growers,
Inc, 240 Mich App at 164. In particular, this matter of defendants’ duty to inform its members of
the effects of changes in the law has statewide implications. We note that MERC is at this time
already assessing the same arguments made by plaintiff here. A ruling of the circuit court in this
case has the potential to contradict the agency’s decision in a case already before it and
undermine the uniformity and consistency in this complex field of law. Third, for the same
reason, judicial resolution of this issue could adversely affect the agency’s performance of its
regulatory responsibilities. Because there are many members in defendant MEA throughout the
state of Michigan, it is important to have consistent resolution of the extent of representation
those members can expect. Accordingly, the trial court, in assessing the factors relating to the
question of primary jurisdiction, did not err, and properly applied the doctrine of primary
jurisdiction to this case.

       Plaintiff finally argues that the trial court erred in dismissing the remainder of her claims
as moot or hypothetical. We disagree.

         An “actual controversy” must exist to invoke declaratory relief, and the requirement
prevents a court from deciding hypothetical issues. Shavers v Attorney General, 402 Mich 554,
588-589; 267 NW2d 72 (1978). While courts are not prohibited from reaching issues before
actual injuries occur, id. at 589, declaratory relief is unwarranted where there is no threat that
would subject the plaintiff to any disadvantage in ultimately setting forth and maintaining its
legal rights. See Flint v Consumers Power Co, 290 Mich 305, 310; 287 NW 475 (1939).
Plaintiff has already resigned from defendants; it is impossible for this or any other Court to craft
any relief that would improve plaintiff’s ability to do what she has already done. Plaintiff’s
claim for declaratory or injunctive relief to the effect that she had a right to resign earlier is, as
the trial court found, moot.

        In contrast, plaintiff’s claim for declaratory or injunctive relief to the effect that she owes
outstanding fees or dues is not moot: it is undisputed that defendants believe plaintiff to owe
some $1,075.69 in unpaid membership dues for the 2013 to 2014 school year. It is also
undisputed that defendants have contacted plaintiff expressing the possibility that they might
seek to collect those dues. Defendants also apparently have a policy of desiring to collect similar
unpaid dues. Nevertheless, plaintiff’s contention that defendants have threatened to actually do
so is hyperbolic. We appreciate that it might be concerning to leave such a possibility lurking.
However, we find nothing in the record supporting more than the possibility that a collections

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action could be initiated. We agree with plaintiff that a threat is sufficient to warrant declaratory
relief, even if the threat remains dependent on future contingencies. U S Aviex Co v Travelers
Ins Co, 125 Mich App 579, 585-586; 336 NW2d 838 (1983). In that case, the plaintiff was
explicitly ordered to take a particular action or it would be subjected to a lawsuit, even though no
such lawsuit had materialized by the time of the trial. Id. at 583-584. The communications here
simply do not rise to that level.

       Affirmed.

                                                              /s/ Amy Ronayne Krause
                                                              /s/ William B. Murphy
                                                              /s/ Mark J. Cavanagh




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