10 Oct MICHIGAN SUPREME COURT FINDS STATE WORKERS COVERED BY “RIGHT TO WORK” LAW

In December 2012, Governor Snyder signed legislation making Michigan the 24th state to implement Right to Work legislation.  The law became effective on March 28, 2013.  Collective bargaining agreements in effect prior to March 28, 2013 were exempt from the right to work legislation until the contracts expire.   

Right to work legislation affects the rights of employers and unions to enter into collective bargaining agreements which require employees to join and maintain membership in a union (or pay appropriate “agency fees” to the union) as a condition of employment.  These provisions, known as union security clauses, are quite common and almost universally accepted in the area of labor relations.  Michigan, with its strong history of labor, had a very high percentage of contracts with union security provisions.  With the implementation of the right to work law, employees and unions are prohibited from entering into agreements that require membership or payment of fees to a union in lieu of membership.

Michigan’s right to work legislation was challenged by a number of labor organizations.  In the case of United Auto Workers v Nino Green, the UAW and a number of other unions challenged the application of the right to work legislation to state civil service employees.  

Historically, state civil service employees had enjoyed a different framework of labor relations because state employees were not covered by the Public Employment Relations Act (PERA), the statute that establishes the framework of collective bargaining and union representation in the rest of the public sector.  State employees’ terms and conditions of employment are established by the state Civil Service Commission and the collective bargaining rights that state employees enjoy has been established through the state civil service rules.  

With this historical background in mind, the UAW and other unions challenged the right to work law, claiming that the right to work law did not apply to state government workers because the Civil Service Commission itself had sole authority over state employee’s conditions of employment. 

On July 29, 2015, the Supreme Court found that while the state Civil Service Commission may exercise its constitutional authority to allow collective bargaining, they “lack the authority to tax or appropriate – to wit:  the authority to compel civil service employees to make involuntary financial contributions to subsidize the Commission’s exercise of its constitutional duties and responsibilities.”  

            The court went on to state:

The only potential source of an authority to permit mandatory agency shop fees is the Commission’s power to ‘regulate’ the conditions of employment, which regulation is affected through public collective bargaining agreements.

But the power to ‘regulate’ does not encompass the specific authority to compel other entities, including civil servants themselves, to subsidize the Commission’s constitutional operation.  This authority is one of taxation and appropriation and is fundamentally legislative in character.

By characterizing agency shop fees required under union security provisions as a “tax” or an “appropriation,” the Supreme Court effectively found that the Civil Service Commission overstepped its constitutional authority by allowing collective bargaining agreements that require payment of dues or other agency fees paid by non-union members for representation in the collective bargaining process.  Accordingly, the court found the right to work laws applicable to state civil service employees.