In 2006, childcare providers in the state of Michigan unionized, primarily so that they could negotiate state low-income subsidies with Michigan's Department of Human Services. The vote to unionize was largely one-sided, but not unanimous. Similarly, few childcare providers voted against the subsequent collective bargaining agreement, which required participants in Michigan's Child Development and Care Program to either join the union or pay an "agency fee."

Nonetheless, a few non-union providers were angry enough about the fee to sue the state and the union for return of their union dues and agency fees. The trial court refused to certify the proposed class, because intra-class conflicts meant that the named plaintiffs were not adequate class representatives. The plaintiffs appealed, and the Sixth Circuit took the case: Schlaud v. Snyder, No. 12-1105, 2013 U.S. App. LEXIS 10275 (6th Cir. May 22, 2013).

The Sixth Circuit affirmed, noting that the trial court's reasoning was not an abuse of discretion:

plaintiffs' proposed class includes a substantial number of providers who voted in favor of financially supporting the Union in an action that alleges that the entire class was forced to support the Union financially. This is a clear conflict within the proposed class. Plaintiffs, who allege that they were compelled to pay the fees under the CBA, have divergent interests from other potential class members, who voted in favor of that same CBA. Further, those who voted for the CBA did not suffer the injury alleged by plaintiffs because they were not compelled to support the Union financially--they voted to do so. Finally, plaintiffs' lawsuit would impair the ability of the Union to represent its members and is, therefore, not in the interest of those proposed class members who voted in favor of using collective action to improve the conditions of the CDC.

(Emphasis added.) The Sixth Circuit also refused to certify a proposed subclass comprising those who had not voted in any union election, since many of the proposed class members had become certified childcare providers after the vote on the CBA.

The Sixth Circuit's opinion provides an excellent example of an intra-class conflict: if the plaintiffs had their way, the vast majority of childcare providers would have lost an arrangement they clearly thought was to their advantage. (In this case, the proposed class action would also have created additional problems for its class members, undermining the union they had voted to join.) Not every intra-class conflict will be this stark, but defense attorneys can use the reasoning in Schlaud to show why intra-class conflicts are a problem in other class actions that involve large groups with divergent interests.