Michigan State AFL-CIO v. Employment Relations Commission

551 N.W.2d 165, 453 Mich. 362

• Court: Michigan Supreme Court
• Decided: August 2, 1996
• Docket: Docket Nos. 103918, 103937 and 103938, Calendar Nos. 8-9
• Status: Published

Opinions

Brickley, C.J.

In this case plaintiffs question the constitutionality of several provisions of 1994 PA 112, which amended the public employment relations act. The circuit court upheld all but two provisions of the act. The Court of Appeals affirmed. This Court unanimously affirms the Court of Appeals except with respect to 1994 PA 112, § 17. However, the signers of this opinion would affirm the judgment of the Court of Appeals in its entirety and would specifically hold that § 17’s prohibition against an education association’s use of veto power over the ratification of a collective bargaining agreement does not violate the freedom of association rights of local bargaining units. Accordingly, because there is no majority to strike down the constitutionality of § 17, only a majority to vacate the decisions of the trial court and Court of Appeals, § 17 remains a valid and binding statutory provision.

i

FACTS

On May 2, 1994, the Governor signed into law 1994 PA 112, which significantly departs from previous legislation regulating collective bargaining by public sector employees. For the first time, the Legislature amended the pera to address collective bargaining, mediation, and strike activities by public school employees in a manner separate from the general body of public employees. Two groups of plaintiffs, one led by Michigan State AFL-CIO and the other by the Michigan Education Association, separately filed complaints, seeking a declaration that the act is unconstitutional. These complaints were later consolidated. After defendants answered, plaintiffs and defendants filed motions and cross-motions for summary disposition.

The circuit court denied plaintiffs’ motion except with regard to two provisions of the act. First, it overturned the provision of subsection 2a(4) that fined the collective bargaining representative for strikes by represented public school employees as being violative of due process by imposing liability on a union for the unauthorized actions of individuals. Second, it invalidated the provision of subsection 2a(10) that required the courts to issue a mandatory injunction, regardless of the equities of the situation, because the provision violated the separation of powers doctrine. Defendants do not appeal these two rulings. On the remaining claims, the circuit court granted defendants’ motions for summary disposition. Plaintiffs appealed the ruling, but the Court of Appeals affirmed. 212 Mich App 472; 538 NW2d 433 (1995). We now address plaintiffs’ remaining challenges of 1994 PA 112 section by section.

H

SECTION 17

Plaintiffs’ central contention on appeal is that § 17 of 1994 PA 112¹ violates public school employees’ freedom of association rights.² Subsection 17(1) provides that education associations “shall not veto,” “shall not require the bargaining unit to obtain . . . ratification,” or “shall not in any other way prohibit or prevent the bargaining unit from entering into, ratifying, or executing a collective bargaining agreement.”³ In effect, the subsection prohibits statewide education associations from exercising a veto-like power over local bargaining units after the local negotiators reach a tentative collective bargaining agreement.⁴

Plaintiffs allege that § 17 violates public school employees’ freedom of association rights in two fundamental ways. First, they argue that the right to freedom of association includes a right to combine the ratification power of each local bargaining unit into the statewide education association, and that § 17 violates this right. Second, they argue that § 17 interferes with the right of an education association to advise a local bargaining unit against ratifying an agreement.

A

Plaintiffs assert that the veto power restriction in § 17 violates their right to freedom of association because plaintiffs believe that the power to veto a local bargaining unit’s ratification of a collective bargaining agreement allows them to bind together the ratification power of each local bargaining unit. By-vetoing collective bargaining agreements that diverge from the standards established by the education association, the association can compel individual local bargaining units to bargain for the same selected standard provisions in their individual collective bargaining agreements as other units bargain for across the state. As a statewide bargaining group, each local bargaining unit experiences increased strength in its collective bargaining negotiations.

Section 17 limits this power by removing the education association’s ability to compel local bargaining unit conformity. Under § 17, education associations can only persuade, not compel, local bargaining units to conform. Therefore, we must decide whether § 17’s limitation on education associations’ power to compel conformity inside the organization violates First Amendment freedom of association rights. We would hold that, although an association’s power to compel conformity among individual groups and, thereby, form a cohesive, larger, group is limited by § 17, the power to compel conformity is not guaranteed by the First Amendment.

The right of freedom of association is a right derived from the freedom of speech. Roberts v United States Jaycees, 468 US 609, 622; 104 S Ct 3244; 82 L Ed 2d 462 (1984). “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.”⁵ Id. Accordingly, if a government regulation impedes an individual’s attempt to join an organization, that regulation most likely implicates the individual’s freedom of association rights.

In Roberts, the United States Supreme Court also recognized that government regulation that interferes with the “internal organization or affairs of the group” may infringe on freedom of association rights. Id. at 623. If we were to accept this statement on face value, we would agree with plaintiffs that the restriction imposed by § 17 on education associations’ power to compel conformity would interfere with the associations’ internal organization and, therefore, would violate freedom of association rights. However, such an interpretation overextends the doctrine, and we do not believe that the statewide organization’s power to veto ratification of a collective bargaining agreement is a protected aspect of its internal organization.

The essential right protected under the freedom of association doctrine is the right to join together in a group of like-minded individuals and exercise free speech rights. Therefore, where a statute regulates the internal affairs of an organization, it violates the members’ freedom of association if the compelled change in the internal affairs of the organization in turn affects the ability of the organization’s members to come together and exercise free speech.

The United States Supreme Court cases that have examined regulations affecting the internal structure of organizations for freedom of association violations support this interpretation. For example, in NAACP v Alabama ex rel Patterson, 357 US 449, 462-463; 78 S Ct 1163; 2 L Ed 2d 1488 (1958), the Court struck down an Alabama order directed at compelling the naacp to disclose a list of its members. The order violated the naacp’s freedom of association because, in the social climate of the time,

compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. [Id. ]

Membership was similarly at issue in Tashjian v Republican Party of Connecticut, 479 US 208; 107 S Ct 544; 93 L Ed 2d 514 (1986). In that case, the Court struck down a Connecticut statute that restricted voting in party primaries to members of the respective parties. By limiting primary voting to party members, the statute regulated who the party could include in its primary voting activity, effectively limiting who could join together to participate in the group. Recognizing this infringement, the Court noted that, “the freedom to join together in furtherance of common political beliefs ‘necessarily presupposes the freedom to identify the people who constitute the association.’ ” Id. at 214.

Likewise in Roberts, although concluding that a compelling governmental interest supported the statute, the Court decided that a Minnesota law requiring the state Jaycees to admit women implicated freedom of association. Roberts, 468 US 628-629. Again, the freedom of association claim was entangled with the issue of membership. Forcing an organization to admit women directly interfered with the Jaycees’ control over their membership. See also Bd of Directors of Rotary Int’l v Rotary Club of Duarte, 481 US 537; 107 S Ct 1940; 95 L Ed 2d 474 (1987). Therefore, in cases in which the United States Supreme Court has overturned a regulation because the regulation affected the internal organization of the group, the regulation predominately affected membership or participation in a group.

We recognize that freedom of association rights are not always connected with issues of membership or participation. For example, in Citizens Against Rent Control v Berkeley, California, 454 US 290; 102 S Ct 434; 70 L Ed 2d 492 (1981), the United States Supreme Court overturned a statute that imposed limits on organizational spending aimed at supporting or opposing ballot measures without imposing similar limits on individuals. In that case, the Court appeared to focus on an organization’s right to “pool money through contributions,” not on the right to control membership. Id. at 296. Nevertheless, the challenged statute in that case did not regulate the internal affairs of organizations, and we find the case’s reasoning less compelling when applied to statutes that do regulate internal affairs than when applied to statutes affecting contributions to political causes. Therefore, where a statute regulates the internal organization or affairs of a group, we would conclude that the focus of a freedom of association inquiry into that statute should be on the effect that the statute has on the decisions of individuals to join that organization to exercise free speech.

In the present case, we would hold that § 17 does not sufficiently affect a local bargaining unit’s decision to join an education association. Although we recognize that the increased bargaining strength that results from a compelled unified bargaining stance is attractive to local bargaining units, § 17 only reduces an association’s power to compel cohesion. As we concluded in part n(c) of this opinion, education associations are still free to persuade member local bargaining units to act as a cohesive unit. Further, § 17 only controls education associations during the collective bargaining process; it does not diminish other valuable services education associations may provide their members outside this process. Therefore, without a contrary record before us, we cannot conclude that this diminution in an education association’s power will discourage local bargaining unit membership. Accordingly, we reject plaintiffs’ freedom of association challenge to § 17’s veto power prohibition.

B

Justice Mallett reads the right to freedom of association as prohibiting most regulations that interfere with the internal structure of an organization. In reaching this conclusion, we suggest that he focuses too specifically on individual sentences from various sources.

Justice Mallett argues that “[t]he ability to control the internal structure of one’s organization is an essential component of the freedom of association.” Post at 401. He bases this conclusion on several authorities. For one, Justice Mallett cites 4 Rotunda & Nowak, Constitutional Law (2d ed), for the proposition that “[generally, in the context of labor unions, the freedom of association works to advance the collective economic interests of the labor union.” Post at 400. We find additional detail in additional material from the cited page.

[individuals might associate to achieve economic or other goals that are unconnected to any fundamental constitutional right. For example, individuals may join together in labor unions or trade associations. This ability to control one’s economic associations is a part of the liberty protected by due process, but the Court has refused to substitute its judgment for the legislature’s as to the legitimate basis for restricting such types of association. [Rotunda & Nowak, supra, § 20.41, p 249 (emphasis added).]

Accordingly, Justice Mallett’s use of this language is out of context. In proper context, it does not support application of the strict scrutiny standard of review to regulations affecting labor unions.

Justice Mallett also supports his position with significant quotes from NAACP v Alabama ex rel Patterson, and Bd of Directors of Rotary Int’l v Rotary Club of Duarte. Post at 397-399. We prefer to interpret these quotes in the context of the holdings in each opinion. As discussed in part n(A) of this opinion, the holding of each case was based on the consideration of regulations that affected the ability of individuals to become members of associations. Therefore, we do not believe that these quotations support overturning regulations that do not affect the ability to associate.

Justice Mallett also concludes that “[i]n the context of labor unions, the rights of members to consult, assist, and advise each other necessarily flows into the power of certain delegated members to preclude activity by the whole organization.” Post at 403. To support this conclusion, he quotes from Brotherhood of Railroad Trainmen v Virginia ex rel Virginia State Bar, 377 US 1; 84 S Ct 1113; 12 L Ed 2d 89 (1964), post at 403, and Smith v Arkansas State Hwy Employees, Local 1315, 441 US 463; 99 S Ct 1826; 60 L Ed 2d 360 (1979), post at 403. However, neither case concerns the attempt of delegated members to preclude activity by organizations or even subgroups of organizations. Therefore, we are cautious about expanding the influence of these individual statements to claims alleging impairment of the ability to veto actions by nonconforming subgroups. Because of our caution, we choose to measure Justice Mallett’s conclusions against the gauge of experience.

Experience teaches that a law does not violate an organization’s right of freedom of association just because the law interferes with the internal structure of an organization. In Chapter 423 of the Michigan Compiled Laws alone there are five statutes that arguably would violate Justice Mallett’s holding.⁶ Never before has a court suggested that these statutes violate the right of freedom of association. No one has accepted this argument because the right of freedom of association has never before been interpreted as broadly as suggested by Justice Mallktt. Instead, the focus of freedom of association inquiries typically rests on statutes that impair the ability of individuals to participate in associations.

c

Regarding plaintiffs’ assertion that § 17 interferes with the right of an education association to advise local bargaining units, we choose to interpret the statute to avoid interfering with these rights. Plaintiffs base their argument on the part of subsection 1 that states: education associations “shall not in any other way prohibit or prevent the bargaining unit from entering into, ratifying, or executing a collective bargaining agreement.” Read expansively and in isolation from the rest of the statute, this language could be inteipreted as prohibiting education associations from counseling a local bargaining unit against entering into a tentative bargaining agreement if such counsel is effective.

Under this interpretation the subsection would undeniably violate First Amendment rights because such a statute prohibits speech by employees of the education association on the basis of its content. Cohen v California, 403 US 15; 91 S Ct 1780; 29 L Ed 2d 284 (1971). Although under Connick v Myers, 461 US 138; 103 S Ct 1684; 75 L Ed 2d 708 (1983), content-based restrictions on public employee speech may sometimes be upheld,⁷ the education association’s employees are not public employees. Connick simply does not apply.

As a second constitutional infirmity, plaintiffs allege that § 17 violates public school employees’ freedom of association rights. In Brotherhood of Railroad Trainmen v Virginia ex rel Virginia State Bar, supra, the United States Supreme Court recognized that an association’s interest in advising and assisting its members is an interest implicating freedom of association rights. Id. at 5-6. On the basis of this right, the Court struck down a Virginia statute aimed at ending a union’s practice of both recommending that injured union workers not settle accident claims with their employers without consulting a lawyer and recommending specific lawyers to consult. Id. at 4-5. If we were to accept plaintiffs’ inteipretation of § 17, we would find the same association interest relied on in Brotherhood of Railroad Trainmen present in this case.

However, we would conclude that plaintiffs’ proposed inteipretation of this section is not the preferred interpretation. We note that “[w]henever possible an interpretation that does not create constitutional invalidity is preferred to one that does.” Schwartz v Secretary of State, 393 Mich 42, 50; 222 NW2d 517 (1974). In this case, only the phrase “shall not in any other way prohibit or prevent” in subsection 17(1) can be interpreted as violating the First Amendment. The remaining text merely restricts the power of education associations to veto local bargaining units’ approval of collective bargaining agreements. Therefore, § 17 would be constitutional if we interpreted this section to allow education associations to advise and assist local bargaining units.

We would conclude that such an interpretation is not only constitutionally compelled, but is the preferred interpretation. In this subsection, the Legislature removes an education association’s power over the ratification of a collective bargaining agreement and returns that power to the local bargaining unit. As expressed by the statute: “The power to decide whether or not to enter into, ratify, or execute a collective bargaining agreement with a public school employer rests solely with the members of the bargaining unit . . . .” The act of advising a local bargaining unit not to ratify an agreement in no way interferes with the local unit’s “power” to ratify or execute a collective bargaining agreement.

Therefore, in reading the statute as a whole and to conform to constitutional requirements, we would hold that the language of subsection 17(1) that restricts an education association from “in any other way” prohibiting a local bargaining unit from ratifying a collective bargaining agreement only restricts the association from holding a legal “power” over the local unit. The ability to advise and assist a local unit is not a legal power that associations can enforce against local units. Accordingly, under our interpretation of the statute, subsection 17(1) does not violate plaintiffs’ First Amendment rights.

m

SUBSECTIONS 15(3) AND (4)

Plaintiffs submit that subsections 15(3) and (4)⁸ violate public school employees’ First Amendment and equal protection rights. Their argument is based on an overly expansive interpretation of these sections.

A

Subsections 15(3) and (4) prohibit collective bargaining over nine subjects. Plaintiffs argue that by denying collective bargaining these subsections actually impinge on public school employees’ freedom of speech. If these subsections denied public school employees the right to voice their concerns over these nine subjects, they would violate the First Amendment. City of Madison v Wisconsin Employment Relations Comm, 429 US 167; 97 S Ct 421; 50 L Ed 2d 376 (1976). However, nothing in the subsections prohibits discussion.

Instead, they prohibit public school employers from collectively bargaining over these subjects with their employees. Collective bargaining as a process requires both parties to confer in good faith — to listen to each other. MCL 423.215(1); MSA 17.455(15)(1). The First Amendment does not. Smith v Arkansas State Hwy Employees, supra at 465. In these subsections, the Legislature simply has removed the statutory requirement that public school employers listen to their employees and instructed the employers not to collectively bargain with regard to these subjects. In effect, the Legislature simply classified the disputed subjects as illegal subjects of collective bargaining.⁹ That classification does not implicate First Amendment rights.

B

Plaintiffs also argue that subsections 15(3) and (4) violate public school employees’ equal protection rights because they only prohibit public school employees, not all public employees, from collectively bargaining over the enumerated subjects. To decide this claim, we recognize that public school employees are not a protected class. We also recognize that this challenge does not implicate any fundamental rights. Plaintiffs allege that these subsections violate their First Amendment rights, but, as previously discussed, we disagree.

Therefore, we will review their claim under the rational basis standard of review. We uphold a statute under that standard if it furthers a legitimate government interest and if the challenged classification is rationally related to achieving the interest. Shavers v Attorney General, 402 Mich 554, 618; 267 NW2d 72 (1978).

One of the government interests advanced by the act as a whole is the reduction of strikes by public school employees and of the resultant interruption of public education. Gaidamavice v Newaygo Bd of Co Rd Comm’rs, 341 Mich 280, 285; 67 NW2d 178 (1954). Subsections 15(3) and (4) reflect the Legislature’s judgment that removing certain topics from collective bargaining will promote this interest. In practice, subsections 15(3) and (4) may or may not achieve the desired result. However, it is reasonable for the Legislature to assume that this limitation on collective bargaining will reduce the number of public school employee strikes. Accordingly, we will not disturb its judgment,¹⁰ and we accept the proposed purpose of these sections as a legitimate government interest.

We also agree that the classifications are rationally related to the purpose of reducing strikes by public school employees. Public Act 112 creates the classifications of public employees employed by the public school and public employees otherwise employed. These classifications are appropriate because of the existing record of public employee strikes. As reflected in the affidavit of Shlomo Sperka, Director of the Michigan Department of Labor, Bureau of Employment Relations, the overwhelming majority of public employee work stoppages in this state between fiscal years 1988-89 and 1993-94 involved public school employees. In light of this history, the Legislature rationally could have decided that the relationship between public school employees and employers required unique treatment to reduce work stoppages. Therefore, subsections 15(3) and (4) survive plaintiffs’ equal protection challenge.

IV

SUBSECTIONS l(l)(i) AND 6(1)

Plaintiffs allege that the prohibition against unfair labor practice strikes in subsection l(l)(i)¹¹ and subsection 6(1)¹² violate their free speech rights. Because both subsections are operationally similar, we will limit our discussion to subsection l(l)(i), understanding that our conclusions concerning that subsection apply to both. Subsection l(l)(i) provides:

“Strike” means the concerted failure to report for duty, the willful absence from one’s position, the stoppage of work, or the abstinence in whole or in part from the full, faithful, and proper performance of the duties of employment for the purpose of inducing, influencing, or coercing a change in employment conditions, compensation, or the rights, privileges, or obligations of employment. For employees of a public school employer, strike also includes an action described in this subdivision that is taken for the purpose of protesting or responding to an act alleged or determined to be an unfair labor practice committed by the public school employer.

Therefore, a strike is defined in relation to the motivation for the work stoppage. As applied to public school employees, the list of prohibited motivations includes protesting unfair labor practices. Plaintiffs argue that by prohibiting strikes motivated by unfair labor practices this subsection effectively prohibits speech on the basis of its content.

If the Legislature prohibited picketing on the basis of the motivation for the picketing, we would agree that such a regulation violated free speech rights. Chicago Police Dep’t v Mosley, 408 US 92; 92 S Ct 2286; 33 L Ed 2d 212 (1972). However, the conduct at issue in subsections l(l)(i) and 6(1) is the act of striking, not the act of picketing. Withholding services alone does not communicate a sufficiently distinctive message. Striking is more action than speech.

Therefore, we conclude that the act of striking is not sufficiently communicative to enjoy First Amendment protection. United States v O’Brien, 391 US 367, 376; 88 S Ct 1673; 20 L Ed 2d 672 (1968). Accordingly, the Legislature may regulate that conduct without violating free speech guarantees. Therefore, the prohibition of strike activity on the basis of the motivation for the strike does not violate the First Amendment, regardless of the type of motivation the Legislature singles out.¹³

v

SUBSECTION 1(2)

Plaintiff afl-cio argues that subsection 1(2)¹⁴ violates public school employees’ First Amendment free speech rights. Currently, that subsection provides:

This act does not limit, impair, or affect the right of a public employee to the expression or communication of a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of public employment or their betterment as long as the expression or communication does not interfere with the full, faithful, and proper performance of the duties of employment.

Before enactment of Act 112, the pera contained similar language, appended to the act’s definition of “strike.” This language spoke in terms of expression or communication not designed to interfere with employment. Specifically, the former text read:

This act shall not be construed to limit, impair, or affect the right of a public employee to the expression or communication of a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of public employment or their betterment, so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment. [MCL 423.201(a); MSA 17.455(l)(a) (emphasis added).]

Therefore, the original text took the intent of the speaker into consideration.

Plaintiffs argue that Act 112 removed the intent element from this subsection and that the subsection now punishes speech that has the unintended effect of interfering with the “performance of the duties of employment.” Plaintiffs misread this subsection. Subsection 1(2) does not punish any conduct. It only instructs courts respecting their efforts to interpret the PERA. Because subsection 1(2) is instructional in nature, it cannot violate free speech rights by itself.

Additionally, this subsection voluntarily limits the pera’s impairment of employee expression or communication. It is a shield that protects public employees from impairment of expression, not a sword that prohibits expression. As such, even if this shield of protection were not as extensive as the shield of protection guaranteed under the First Amendment, the First Amendment would protect employee speech where this section does not. The Legislature could rewrite the subsection to provide less protection than the First Amendment, and it would still not violate the First Amendment. The revision simply would render the subsection inconsequential. Therefore, subsection 1(2) does not violate the First Amendment.

VI

SUBSECTIONS 2a AND 6(1)

Finally, plaintiffs argue that the conflicting definitions of “strike” in subsections 2a¹⁵ and 6(1) fail to provide adequate notice of what conduct violates the act and that, therefore, these subsections violate due process. However, we conclude that the definition of the term “strike” is consistent as between these two subsections.

Subsection 2a(l) fines public school employees for engaging in strikes. It provides:

If a public school employer alleges that there is a strike by 1 or more public school employees in violation of section 2, the public school employer shall notify the commission of the full or partial days a public school employee was engaged in the alleged strike. [Emphasis added.]

Subsection 6(1) restates the definition of “strike” from subsection l(l)(i) that applies to the remainder of the act:

Notwithstanding the provisions of any other law, a public employee who, by concerted action with others and without the lawful approval of his or her superior, willfully absents himself or herself from his or her position, or abstains in whole or in part from the full, faithful and proper performance of his or her duties for the purpose of inducing, influencing or coercing a change in employment conditions, compensation, or the rights, privileges, or obligations of employment, or a public employee employed by a public school employer who engages in an action described in this subsection for the purpose of protesting or responding to an act alleged or determined to be an unfair labor practice committed by the public school employer, shall be considered to be on strike. [MCL 423.206(1); MSA 17.455(6)(1).]

Plaintiffs argue that the subsections are inconsistent because subsection 2a(l) only requires a strike by one employee, but subsection 6(1) requires “concerted action with others.” Although subsection 6(1) requires concerted action, the concerted action can be an action other than abstaining from work, such as providing financial support. Under subsection 6(1), a “strike” also obtains if a group of employees aids one employee’s effort to engage in a work stoppage; the one employee abstaining from work is on strike; the other employees are not on strike, but are engaging in concerted action with the striking employee. Therefore, the reference to “a strike by 1 or more public school employees” in subsection 2a(l) does not conflict with the definition of strike in subsection 6(1) because subsection 6(1) recognizes strikes in which only one employee abstains from work. Accordingly, one definition does not render the other unconstitutionally vague.

CONCLUSION

This Court unanimously upholds the Court of Appeals except with respect to 1994 PA 112, § 17. When properly interpreted, the signers of this opinion do not believe that any of the facially challenged provisions before us violate constitutional rights. We reach this conclusion understanding that § 17 shall not be construed to prohibit education associations from advising or assisting local bargaining units, even if the education association advises against ratifying a collective bargaining agreement. Accepting this interpretation, we would affirm the decision of the Court of Appeals in its entirety. Consequently, because a majority has not overturned § 17, it remains a valid and binding statutory provision.

Riley and Weaver, JJ., concurred with Brickley, C.J.

Levin, J. (separate opinion). The opinions of my colleagues are in agreement on all but the challenge to § 17 of 1994 PA 112.¹ I join with the three signers of the opinion (that finds that § 17 imposes an unconstitutional infringement on the freedom of association guaranteed by the First Amendment) in vacating the decision of the Court of Appeals² insofar as it held § 17 to be constitutional. But I do not do so on the ground that § 17 is unconstitutional, but on other grounds.

I join in vacating the decision of the Court of Appeals for reasons stated by the United States Supreme Court, which, on more than one occasion, has “cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations.” Public Affairs Associates, Inc v Rickover, 369 US 111, 112; 82 S Ct 580; 7 L Ed 2d 604 (1962); Eccles v Peoples Bank, 333 US 426, 432; 68 S Ct 641; 92 L Ed 784 (1948).

Here, a factual record is nonexistent, and is thus even more “fragile” than the record described in Rickover, supra at 112-113,³ where the United States Supreme Court vacated the decision of the United States Court of Appeals for the District of Columbia Circuit,⁴ which had addressed the merits, and where the United States Supreme Court said:

So fragile a record is an unsatisfactory basis on which to entertain this action for declaratory relief. [369 US 114.]

The Michigan Education Association and the Michigan State AFL-CIO assert that § 17 unconstitutionally interferes with their members’ right to associate freely as guaranteed to them under the Michigan and United States Constitutions. As set forth in plaintiff afl-cio’s complaint, plaintiffs allege that § 17

unconstitutionally interfere^] and intrude[s] upon the internal arrangements and organizational relations between affiliated employee organizations in a number of respects, and additionally impair[s] the constitutions, by-laws, and goveming instruments of such organizations, thereby prohibiting, burdening, and chilling public school employees in the exercise of their right to freely associate with others for the common orderly advancement of their beliefs, ideas and interests. . . .[⁵]

The Governor and the MERC, represented by the Attorney General, assert that § 17 has a narrower effect, and does not implicate constitutionally protected associational freedoms. At oral argument, the Assistant Attorney General said that “[t]he collective bargaining process remains untouched with [the exception of] only one aspect, and that is the final decision on the signing of the contract.”

Although my colleagues who would affirm the Court of Appeals declaration of constitutionality adopt a narrow construction of § 17, one which perhaps would not impermissibly trample upon the associational rights of union members, one cannot be confident, based on the record so far developed, that such a construction is either correct or may dependably be relied on.

Some of the language of § 17 seems, at least initially, to be clear on its face. There can be little doubt that a bargaining representative may not expressly “veto” a collective bargaining agreement reached between a public school employer and an employee bargaining unit. Nor can the bargaining unit or education association expressly require ratification by the association “as a condition of entering into a collective bargaining agreement.”

Surrounding that black and white language, however, lies an area of gray that is yet undefined, although probably more important for purposes of resolving specific conflicts that may arise. Following the seemingly clear provisions, is more general language that “[a] bargaining representative or educational association . . . shall not in any other way prohibit or prevent the bargaining unit from entering into, ratifying, or executing a collective bargaining agreement.” Much of oral argument in this Court was spent in an effort to uncover, without much success, the true meaning of the statute in general and § 17 in particular and the effect it would have once implemented.⁶

The justices who write for constitutionality, would hold that:

• “. . . [t]he act of advising a local bargaining unit not to ratify an agreement in no way interferes with the local unit’s ‘power’ to ratify or execute a collective bargaining agreement;

• “. . . reading the statute as a whole and to conform to constitutional requirements, . . . the language of subsection 17(1) that restricts an education association from ‘in any other way’ prohibiting a local bargaining unit from ratifying a collective bargaining agreement only restricts the association from holding a legal ‘power’ over the local unit.”⁷

Nevertheless, as demonstrated by the divergent hypotheses regarding what § 17 does, and what effect it will ultimately have, set forth in the complaints, briefs and at oral argument, there is a range of different meanings that one could attribute to the section. With only a scant and undeveloped record before us, we should not attempt to determine which interpretation will prevail, when § 17 is put into effect, for the answer may then become apparent.

In practice, it is possible that § 17 will no more infringe on employee associational rights than other legislation that regulated union structure and conduct to promote valid state interests.⁸ But it is also possible that an effort may be made to enforce § 17 in a manner feared by the unions, chilling the right of association and undermining the hierarchical structure that the unions claim is essential to their function.⁹ One cannot say with assurance how the state may seek to enforce § 17.

n

The record in the instant cases consists of the complaints and the defendants’ responses, motions, briefs and arguments at the trial and appellate levels. There is no factual record, depositions or stipulations regarding the facts.

The United States Court of Appeals for the First Circuit recently observed that “the discretion to grant declaratory relief is to be exercised with great circumspection when matters of public moment are involved, or when a request for relief threatens to drag a federal court prematurely into constitutional issues that are freighted with uncertainty.” Ernst & Young v Depositors Economic Protection Corp, 45 F3d 530, 535 (CA 1, 1995).

A court should avoid adjudicating the constitutionality of a statute when facts critical to the analysis are yet to be developed. “A constitutional challenge must present ‘a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” United States v Instruments SA, Inc, 807 F Supp 811, 815 (D DC, 1992) (quoting, Aetna Life Ins v Haworth, 300 US 227, 241; 57 S Ct 461; 81 L Ed 617 [1937]); 26 CJS, Declaratory Judgment, § 44.

This Court should pass on the constitutionality of a statute in a declaratory judgment action only as a “last resort,” and should refrain from “anticipat[ing]” the question which would ultimately be raised once the statute is applied. Ashwander v Tennessee Valley Authority, 297 US 288, 345-348; 56 S Ct 466; 80 L Ed 688 (1936) (Brandéis, J., concurring).

In this case issues remain that can be resolved only when § 17 is applied in practice and a factual record is developed.

I join in vacating the decision of the Court of Appeals and the circuit court insofar as they held § 17 to be constitutional.

1 MCL 423.217; MSA 17.455(17).

2 Plaintiffs also argue that § 17’s veto prohibition violates their equal protection rights because it only applies to public school employees. We disagree and discuss plaintiffs’ equal protection challenge more completely in relation to plaintiffs’ challenge to the prohibition against collective bargaining over certain subjects in subsections 15(3) and (4). Our analysis of both equal protection claims is substantially the same. Under our interpretation of § 17, neither a protected class nor a fundamental right is involved. Therefore, we review plaintiffs’ claim under the rational basis standard. We conclude that reducing the number of strikes by prohibiting education associations from vetoing the ratification of collective bargaining agreements is a proper public purpose. Concluding that the Legislature had a proper public purpose behind the enactment of § 17, the remaining equal protection analysis parallels our analysis of subsections 15(3) and (4).

3 The complete text of subsection 17(1) is:

A bargaining representative or an education association shall not veto a collective bargaining agreement reached between a public school employer and a bargaining unit consisting of employees of the public school employer; shall not require the bargaining unit to obtain the ratification of an education association before or as a condition of entering into a collective bargaining agreement; and shall not in any other way prohibit or prevent the bargaining unit from entering into, ratifying, or executing a collective bargaining agreement. The power to decide whether or not to enter into, ratify, or execute a collective bargaining agreement with a public school employer rests solely with the members of the bargaining unit who are employees of the public school employer, and shall not be delegated to a bargaining representative or an education association or conditioned on approval by a bargaining representative or an education association.

4 For the first time in the PERA, this subsection requires a particular method of collective bargaining. To be effective, subsection 17(1) requires that the bargaining agent submit tentative agreements to the bargaining unit for ratification. Bargaining agents will no longer be able to ratify a collective bargaining agreement on behalf of the bargaining unit.

5 Courts recognize another type of freedom of association right protecting against government interference in intimate human relationships. See Roberts, 609 US 617-622. That right is not implicated in this case.

6 See MCL 423.9a; MSA 17.454(10) (interfering with unions’ internal system for deciding to strike), MCL 423.9e; MSA 17.454(10.4) (regulating the composition of bargaining units), MCL 423.9g; MSA 17.454(10.6) (forcing a union in some situations to attach a copy of the last offer to the strike ballot), MCL 423.214; MSA 17.455(14) (interfering with bargaining groups’ internal structure of elections), and MCL 423.251; MSA 17.456(1) (forbidding organizations from hiring strike breakers).

7 In Connick, the United States Supreme Court recognized that the government’s interest in promoting the efficiency of public services balances public employees’ free speech rights except where employees’ speech touches matters of public concern. Id. at 142.

8 MCL 423.215(3), (4); MSA 17.455(15)(3), (4).

9 An “Illegal” subject of bargaining is a provision, such as a closed shop, that is unlawful under the collective bargaining statute or other applicable statute. “The parties are not explicitly forbidden from discussing matters which are illegal subjects of bargaining, but a contract provision embodying an illegal subject is . . . unenforceable.” [Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54-55, n 6; 214 NW2d 803 (1974) (citation omitted).]

10 We reiterate our statement in Shavers-.

“We' are not concerned . . . with the wisdom, need, or appropriateness of the legislation.” Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to “subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.” [Id. at 614, n 38, quoting Ferguson v Skrupa, 372 US 726, 730; 83 S Ct 1028; 10 L Ed 2d 93 (1963).]

11 MCL 423.201(1)0); MSA 17.455(l)(l)(i).

12 MCL 423.206(1); MSA 17.455(6)(1).

13 Plaintiffs also express concern that the amendments of subsections 1(1)® and 6(1) interfere with the rights articulated in Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616; 227 NW2d 736 (1975). Rockwell held that the MERC may reinstate teachers who were engaged in an unfair labor practice strike if reinstatement best effectuated the policies of the PERA. Id. at 641. However, this Court decided Rockwell on the basis of a separate section of the PERA not amended by 1994 PA 112. See MCL 423.216(b); MSA 17.455(16)(b). Accordingly, we conclude that Rockwell is unaltered by Act 112.

14 MCL 423.201(2); MSA 17.455(1)(2).

15 MCL 423.202a; MSA 17.455(2a).

1 (1) A bargaining representative or an education association shall not veto a collective bargaining agreement reached between a public school employer and a bargaining unit consisting of employees of the public school employer; shall not require the bargaining unit to obtain the ratification of an education association before or as a condition of entering into a collective bargaining agreement; and shall not in any other way prohibit or prevent the bargaining unit from entering into, ratifying, or executing a collective bargaining agreement. The power to decide whether or not to enter into, ratify, or execute a collective bargaining agreement with a public school employer rests solely with the members of the bargaining unit who are employees of the public school employer, and shall not be delegated to a bargaining representative or an education association or conditioned on approval by a bargaining representative or an education association.

(2) If an education association, a bargaining representative, or a bargaining unit violates this section, the board of a public school employer or any other person adversely affected by the violation of this section may bring an action to enjoin the violation of this section in the circuit court for the county in which the plaintiff resides or the circuit court for the county in which the affected public school employer is located. Failure to comply with an order of the court may be punished as contempt. In addition, the court shall award court costs and reasonable attorney fees to a plaintiff who prevails in an action brought under this section.

(3) As used in this section, “education association” means an organization, whether organized on a county, regional, area, or state basis, in which employees of 1 or .more public school employers participate and that exists for the common purpose of protecting and advancing the wages, hours, and working conditions of the organization’s members. [MCL 423.217; MSA 17.455(17).]

2 Michigan State AFL-CIO v Michigan Employment Relations Comm, 212 Mich App 472; 538 NW2d 433 (1995).

3 The Court described the record in the following paragraphs:

In these cases, we are asked to determine matters of serious public concern. They relate to claims to intellectual property arising out of public employment. They thus raise questions touching the responsibilities and immunities of those engaged in the public service, particularly high officers, and the rightful demands of the Government and the public upon those serving it. These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly by way of resort to a discretionary declaratory judgment, should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements.

The decisions of the courts below rested on an Agreed Statement of Facts which sketchily summarized the circumstances of the preparation and of the delivery of the speeches in controversy in relation to the Vice Admiral’s official duties. The nature and scope of his duties were not clearly defined and less than an adequate exposition of the use by him of government facilities and government personnel in the preparation of these speeches was given. Administrative practice, insofar as it may relevantly shed light, was not explored. The Agreed Statement of Facts was in part phrased, modified and interpreted in the course of a running exchange between trial judge and counsel. The extent of the agreement of counsel to the Agreed Statement of Facts was in part explained in the course of oral argument in the District Court. None of the undetailed and loose, if not ambiguous, statements in the Agreed Statement of Facts was subject to the safeguards of critical probing through examination and cross-examination. This is all the more disturbing where vital public interests are implicated in a requested declaration and the Government asserted no claim (indeed obliquely may be deemed not to have disapproved of the defendant’s claim) although the Government was invited to appear in the litigation as amicus curiae and chose not to do so. So fragile a record is an unsatisfactory basis on which to entertain this action for declaratory relief.

4 109 US App DC 128; 284 F2d 262 (1960).

5 Plaintiff MEA alleged in its complaint that “[t]he thrust of subsection 17(1) of [1994] PA 112 is to quash free collective speech and efforts to resolve impasses by eliminating bargaining representatives.”

6 The Assistant Attorney General said that “[t]he Act hasn’t finished playing out yet.”

7 Ante, p 379.

8 Babbit v United Farm Workers Nat’l Union, 442 US 289; 99 S Ct 2301; 60 L Ed 2d 895 (1979); Smith v Arkansas State Hwy Employees, Local 1315, 441 US 463; 99 S Ct 1826; 60 L Ed 2d 360 (1979).

9 Cf. Brotherhood of Railroad Trainmen v Virginia ex rel Virginia State Bar, 377 US 1, 5-6; 84 S Ct 1113; 12 L Ed 2d 89 (1964); Brown v Alexander, 718 F2d 1417, 1421-1423 (CA 6, 1983).