The Building Tradesman Newspaper

Friday, July 26, 2013

Supreme Court’s pro-union ruling puts RTW appeals on path to more legal review

By Marty Mulcahy, Editor

LANSING – The Michigan Supreme Court may have placed a speed bump in front of the state’s newly minted right-to-work law.

On July 5 the Supreme Court rejected Gov. Rick Snyder’s request for an advisory opinion on whether the state’s RTW law is in fact constitutional. The high court declined to comment. “We are not persuaded that granting the request would be an appropriate exercise of the court’s discretion,” the court said unanimously.

The Supreme Court ruling leaves the door open for labor unions – which are attacking the law via appeal on a variety of fronts – to take their cases to lower courts in the hope that temporary injunctions might be issued to curb implementation of the RTW law.

“As I said when Gov. Snyder brought this case to the Supreme Court, the governor wanted to hijack the judicial process the same way the Legislature hijacked the legislative process by ramming through right-to-work in last year’s lame duck session,” said Michigan Building and Construction Trades Council attorney John Canzano. “This action by the state Supreme Court allows right to work appeals to go through the court system, and frees up the lower courts to do what they want to do.”

Michigan actually had two right-to-work laws go into effect for contracts settled after March 27, 2013: Public Acts 348 and 349. One affects private employees, the other, public employees. On Feb. 14, four public employee unions representing 31,100 state workers filed a lawsuit, seeking clarification whether the new law applies to public employees. The unions say the Michigan Constitution gives the state Civil Service Commission authority over state employees, including their collective bargaining agreements.

Right-to-work was moved so quickly through the state Legislature last December by state Republican lawmakers that some legalities were left hanging. Attorney General Bill Schuette, a Republican, said he thinks the new law does apply to the state workers. Snyder’s spokeswoman, Sara Wurfel, said “we’re confident that the constitutionality and legality of the freedom-to-work laws will be upheld in the courts.” But Snyder himself doesn’t seem to be so sure about the law’s affect on public employees, since that’s the question he took before the Supremes. Snyder used his authority to request the opinion from the Supreme Court in order to leap over any potential lower court roadblocks.

Canzano said Snyder should have his doubts – he said he and other labor lawyers don’t think that right-to-work affects those 31,100 state workers. “We all know the law doesn’t apply to civil service,” Canzano said. “The state’s Civil Service Commission has exclusive jurisdiction over them.”

However, a likely result of having the courts reinforce that the state Civil Service Commission has jurisdiction over those public workers, Canzano pointed out, is that the commission itself – which is comprised of appointees of the governor – could simply invoke its own right-to-work law for those 31,100 workers.

Organized labor this year has brought cases protesting RTW before Ingham County Circuit Court, the Michigan Court of Appeals, and federal court. “All the cases are meritorious and have strong claims and arguments,” said Andrew Nickelhoff, a Democratic labor lawyer involved in three of the four Michigan challenges, to CBS Local.

One of those union challenges deals with the locking of doors on Dec. 6 by Michigan State Police at the State Capitol Building while the right-to-work legislation was being voted on – an alleged violation of the state’s Open Meetings Act. On April 3, an Ingham County Circuit judge ruled that lawsuit could go forward, although he said an appeal of RTW by labor would be an “uphill battle.” The Capitol was shut down by State Police for about four hours as the Legislature debated the right-to-work measure, saying the closure was for “safety reasons.” GOP legislative leaders disavowed involvement in making the call to lock out multitudes of demonstrators and protestors from the building.

Another lawsuit, brought to Detroit’s federal courthouse by a coalition of unions that includes the AFL-CIO, Change to Win and Michigan Building and Construction Trades Council, charges that the right-to-work law affecting private industry workers should be invalidated because it violates the supremacy clause of the U.S. Constitution. In other words, federal labor law, not state lawmakers, should regulate collective bargaining rights of private sector workers.

While waging those legal battles that could take years to resolve, labor leaders also have plans for more immediate attempts to influence public opinion ahead of the 2014 election, when Gov. Snyder and many GOP lawmakers who voted for right-to-work are up for re-election.