The Building Tradesman Newspaper

Friday, January 25, 2013

Legally speaking, here are some right-to-work questions and answers

By The Building Tradesman



By Andrew Nickelhoff
(The writer is a long-time Michigan labor attorney who prepared this document for distribution among local unions, to help answer members’ questions about Michigan’s new right-to-work laws).

Q: What are the right-to-work laws?

A: On December 11, 2012, the Republican majority in the Michigan legislature passed, and Governor Snyder signed, two right-to-work laws.

  • 2012 Public Act 348 (Senate Bill 116) amends the Labor Mediation Act,1939 Public Act 176, which covers Michigan private sector employees.
  • 2012 Public Act 349 (House Bill 4003) amends the Public Employment Relations Act (PERA), 1947 Public Act 336, which covers public sector employees.  The amendments in these two laws are basically the same, with some minor differences.

Q: What do the right to work amendments do?

A: Public Acts 348 and 349 remove language that permitted union security clauses (union shop, agency shop or “fair share” agreements).  They provide that employees may not be required, as a condition of obtaining or retaining employment, to:

  • Become or remain a member of a union
  • Pay union dues, fees, assessments, or other charges or expenses or provide anything of value to a union, or
  • Make a charitable contribution in lieu of the above.

This will prohibit union security agreements that require non-members to pay dues, a service fee or fair share as a condition of continued employment. A person injured by enforcement of a prohibited union security agreement can bring a civil action for damages and an injunction, and if successful can receive reimbursement for attorney fees and costs.

Q: Do unions still have to represent bargaining unit members who do not financially support the union?

A: Yes.  As the exclusive bargaining representative, the union still has a duty to fairly represent all bargaining unit members.

Q: Do the new laws require unions to give non-payers any rights as union members?

A: No. The laws do not force the union to give membership rights, such as voting on contracts and electing officers, or eligibility for members-only benefits, to non-payers.

Q: Can unions attempt to persuade employees to join the union or pay a fair share?

A: Yes. However, the amendments prohibit anyone from using force, intimidation or unlawful threats to compel or attempt to compel an employee to become or remain a member of a union, or to pay union dues, fees, assessments or other charges or expenses or provide anything of value to a union, or to make a charitable contribution in lieu of the above.  The terms “intimidation” and “unlawful threat” are not defined. Violation may bring a civil fine of up to $500.

Q: Are any unions or employees exempted from right to work?

A: The only private sector employees who are not covered are agricultural workers, employees in domestic service, employees covered under the Railway Labor Act, and employees at certain federal job sites.   Public employee unions are allowed to negotiate “fair share” union security agreements for bargaining units covering employees of public police and fire departments.  Also, under current law state employees in the civil service and state police should not be covered by these new laws.  However, current civil service rules that allow for fair share agreements can be changed by the Michigan Civil Service Commission.

Q: When do these laws go into effect?

A: These laws will apply to agreements that “take effect” or are “extended or renewed” after the effective date of the act – March 27, 2013. Therefore the laws grandfather union contracts in effect on March 27, 2013, until such agreements are replaced, extended, or renewed.

Q: What if a contract in place at the time the law goes into effect is amended, but the union security clause is not changed?

A: You should consult with your attorney about this.

Q: Will citizens have the opportunity to vote on  these laws, like with the emergency manager law?

A: Public Act 348 and 349 are not subject to a referendum.  Laws containing appropriations are not subject to referendum, and the legislative majority added a $1 million appropriation in order to prevent a referendum. However, there are other ways that citizens can have a vote on these laws.

  • 2012 Public Act 348 (Senate Bill 116) amends the Labor Mediation Act,1939 Public Act 176, which covers Michigan private sector employees.
  • 2012 Public Act 349 (House Bill 4003) amends the Public Employment Relations Act (PERA), 1947 Public Act 336, which covers public sector employees.  The amendments in these two laws are basically the same, with some minor differences.
Q: What do the right to work amendments do? A: Public Acts 348 and 349 remove language that permitted union security clauses (union shop, agency shop or “fair share” agreements).  They provide that employees may not be required, as a condition of obtaining or retaining employment, to:
  • Become or remain a member of a union
  • Pay union dues, fees, assessments, or other charges or expenses or provide anything of value to a union, or
  • Make a charitable contribution in lieu of the above.
This will prohibit union security agreements that require non-members to pay dues, a service fee or fair share as a condition of continued employment. A person injured by enforcement of a prohibited union security agreement can bring a civil action for damages and an injunction, and if successful can receive reimbursement for attorney fees and costs. Q: Do unions still have to represent bargaining unit members who do not financially support the union? A: Yes.  As the exclusive bargaining representative, the union still has a duty to fairly represent all bargaining unit members. Q: Do the new laws require unions to give non-payers any rights as union members? A: No. The laws do not force the union to give membership rights, such as voting on contracts and electing officers, or eligibility for members-only benefits, to non-payers. Q: Can unions attempt to persuade employees to join the union or pay a fair share? A: Yes. However, the amendments prohibit anyone from using force, intimidation or unlawful threats to compel or attempt to compel an employee to become or remain a member of a union, or to pay union dues, fees, assessments or other charges or expenses or provide anything of value to a union, or to make a charitable contribution in lieu of the above.  The terms “intimidation” and “unlawful threat” are not defined. Violation may bring a civil fine of up to $500. Q: Are any unions or employees exempted from right to work? A: The only private sector employees who are not covered are agricultural workers, employees in domestic service, employees covered under the Railway Labor Act, and employees at certain federal job sites.   Public employee unions are allowed to negotiate “fair share” union security agreements for bargaining units covering employees of public police and fire departments.  Also, under current law state employees in the civil service and state police should not be covered by these new laws.  However, current civil service rules that allow for fair share agreements can be changed by the Michigan Civil Service Commission. Q: When do these laws go into effect? A: These laws will apply to agreements that “take effect” or are “extended or renewed” after the effective date of the act – March 27, 2013. Therefore the laws grandfather union contracts in effect on March 27, 2013, until such agreements are replaced, extended, or renewed. Q: What if a contract in place at the time the law goes into effect is amended, but the union security clause is not changed? A: You should consult with your attorney about this. Q: Will citizens have the opportunity to vote on  these laws, like with the emergency manager law? A: Public Act 348 and 349 are not subject to a referendum.  Laws containing appropriations are not subject to referendum, and the legislative majority added a $1 million appropriation in order to prevent a referendum. However, there are other ways that citizens can have a vote on these laws.