The Building Tradesman Newspaper

Friday, September 06, 2013

Mackinac Center ties itself into legal RTW knot to attack unions

By The Building Tradesman

At its core, Michigan’s new right-to-work laws covering public and private employees are fairly simple.

Unions, the new laws say, must provide bargaining and representation services to all of its members – whether or not they pay dues. Unlike non-right-to-work states, now if a Michigan worker doesn’t want to pay his union dues, he doesn’t have to, but he still gets to enjoy the wage, benefit and other advantages of a collectively bargained contract.

The impetus behind the law, of course, is to emasculate unions and take away workplace and political power from working people and hand it to companies. But the law itself is quite simple.

You might not get that when you see all the labels being applied to right-to-work by those who support such laws. For example, the National Right to Work Legal Defense Foundation says its mission is “to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.”

Michigan Republican House Speaker Jase Bolger said in an op-ed that “Michigan has joined a growing national trend toward greater workplace fairness and equality” with the new RTW law. Apparently he didn’t quite see the potential for lessened workplace fairness and equality and wedges created when workers toil side by side, and some pay dues while others don’t.

Other RTW supporters say it’s about “workplace freedom” with Gov. Rick Snyder calling the law “freedom to work,” whatever that means. Who hasn’t had freedom to work?

Now comes the kings of doublespeak: the legal minds at the ultra-conservative Mackinac Center Legal Foundation. All of a sudden the champions of business and free enterprise have morphed into the champions of wronged workers.

The Mackinac Center on Aug. 22 announced that its legal foundation filed a lawsuit in Wayne County Circuit Court on behalf of four employees of the City of Dearborn against Teamsters Local 214. The lawsuit is over a union policy that charges a fee for nonunion members, “who are still forced to be part of the bargaining unit,” to file grievances. The quotation is lifted directly from the Mackinac Center’s press release.

Further, according to the Mackinac Center, the three plaintiffs “all exercised their worker freedom rights after Michigan’s right-to-work law took effect and now choose not to support Teamsters Local 214 financially. The union in June adopted a policy charging non-members a minimum of $150 in order to file a grievance.”

Maybe the Mackinac Center’s legal team, now so concerned with workers’ well-being, could have filed the grievance on behalf of those workers. Unlike their expectations for union bargainers, the Mackinac Center would undoubtedly expect to be paid for its services.

“This (Teamsters) policy flies in the face of seven decades of Supreme Court precedence and five decades of Michigan labor law,” said Derk Wilcox, senior attorney for the Mackinac Center Legal Foundation. “Our clients are simply following the law and we think the union should, too.”

The Mackinac Center pointed out that the U.S. Supreme Court in 1944 ruled that unions must represent all members of a bargaining unit fairly and without discrimination.

“Unions are granted a monopoly because they are the exclusive representative,” Wilcox said. “The price of that monopoly is that they have to represent all workers equally, even those who exercise their worker freedom rights.”

And furthermore…

“Our clients have no confidence that, even if they paid this fee, the union would handle any potential grievances they file in good faith,” Wilcox said. “What the union did here was a spiteful reaction to workers lawfully exercising their independence.”

So let’s get this straight. These workers who won’t pay dues expect that they will get what they pay for in the form of grievance representation. At the same time, duh, they have no faith that their grievances will be handled in good faith.  Wilcox said the Teamsters had “a spiteful reaction,” but it looks a lot like the union reacted rationally, like a business, and is wisely testing the legal waters regarding charging for grievance representation.

“They want it both ways,” Teamsters Local 214 President Joseph Valenti told MIRS News Service. “They want to file their grievances, most of which are frivolous, and then they want us to pay for the God damn thing.”

Valenti told MIRS that the $150 charge is half of what it costs a union to file a grievance and a mere fraction of what an employee would have to pay if they hired a lawyer and went through the process on their own.

The Teamsters new policy also requires non-dues paying members to pay 50 percent of the cost of seeing the grievance through the process. “They can't destroy unions fast enough,” he said. “They're raiding us faster than Jesse James raided trains.”

MIRS said Michigan Capital Confidential contacted Ann Arbor labor attorney David Nacht, who wrote in an e-mail that while he hasn't reviewed the case, he thought the claims by the plaintiffs seemed unfair.

“The lawsuit seems to suggest that unions have an obligation to provide grievance representation for employees who aren't paying for the union to provide those services,” Nacht wrote. “Unions, like companies, or any other entity, have to cover their costs. In general, the Mackinac Center is opposed to government regulation that imposes regulatory burdens on the private sector. In this case, however, the Center is asking the courts to interpret the state law to impose a significant burden on a private entity, which is what unions are, without getting paid for it. I think a court is going to have trouble finding that position to be reasonable. Why should some public employees get for free what others have to pay for? That’s not fair.”