The Building Tradesman Newspaper

Friday, June 28, 2013

State’s RTW law sails past Legislature, slogs through courts

By Marty Mulcahy, Editor

LANSING – The rush to adopt Michigan’s new right-to-work laws in last December’s lame-duck session has created some legal roadblocks. Whether they’re major or minor obstacles remains to be seen.

That rush through the Legislature by right-to-work’s Republican sponsors left a few unanswered questions, but there was apparently not enough time to get legal answers during the speeded-up legislative process. So in an effort to thwart any potential lower-court injunctions that could bring a halt to the state’s right-to-work laws, Gov. Rick Snyder went directly to the Michigan Supreme Court and asked them to rule on two key questions.

But Snyder’s not getting an answer as quickly as he would have liked.

On May 3, after receiving Snyder’s request, the Michigan Supreme Court asked state Solicitor General John Bursch to offer an opinion on whether the high court should offer an advisory opinion indicating if the Supremes should immediately take up Snyder’s request for them to review the new RTW law. Bursch’s response came on June 7, basically telling the Supreme Court that they missed the boat and should have already issued such an opinion.

The reason, Bursch said, is that unions have since filed three lawsuits in an attempt to halt or overturn right-to-work. “At that time, there were no adversarial proceedings pending in any federal or Michigan court. And this Court’s immediate grant to the Governor’s request and subsequent issuance of an advisory opinion would have been valuable and aided in resolution of the issues presented. . .” wrote Bursch. At press time there was no response from the Supreme Court.

What Snyder is asking the state Supreme Court to rule on are two major questions:

1. Whether the public sector right-to-work law applies to 35,000 unionized state workers. Historically the Michigan Civil Service Commission has had autonomy to negotiate wages, benefits and working conditions with labor unions. “This is a very time-sensitive question,” Snyder wrote to the court in January. “It is essential that all parties to the negotiations know definitively whether the new contracts must comply with Public Act 349 before those negotiations commence” after July 1.

2. Whether the new right-to-work laws violate the U.S. Constitution’s 14th Amendment, which allows equal protection to all under the law. Snyder acknowledged in his letter that “the legislation does not apply to all employees in public or private sector bargaining units.”

One of the primary union lawsuits against the pair of state right-to-work laws alleges that Michigan lawmakers violated the Michigan Open Meetings Act, the state Constitution and the First Amendment of the U.S. Constitution when they were adopted on Dec. 6. The basis of the court action stemmed from the closing of the state Capitol as the state Legislature debated and adopted right-to-work legislation that day. The lawmakers rushed to get the legislation adopted before the end of the lame duck session.

Michigan Building and Construction Trades Council attorney John Canzano said he hopes the state Supreme Court stays out of the matter until the appropriate time.

“I agree that the Michigan Supreme Court should not issue an advisory opinion,” said Michigan Building and Construction Trades Council attorney John Canzano. “The Republicans hijacked the legislative process when they rammed through right-to-work legislation to avoid the public’s input.  The governor should not be allowed to hijack the judicial process as well.  These cases should be decided through the normal judicial process, where the Supreme Court is the last step, not the first step.”