KHVPF Insight

Michigan Repeals Right-To-Work Law

Michigan Repeals Right-To-Work Law

For more than a decade, Michigan workers enjoyed the freedom to refrain from or resign membership with labor organizations. Workers also could not be compelled to financially support unions through compulsory dues, fees, and other charges. No more. Within three months of taking over both Houses of the Michigan Legislature, Democrats repealed Michigan’s right-to-work law. Now, Michigan will once again permit private-sector bargaining agreements that require new and existing employees in union shops to join the union and pay dues, fees, and other union charges. The act also included a $1 million appropriation to “educate” workers about the policy — an appropriation that makes the bill immune from reversal in a
public referendum under Michigan constitutional law.

Right-to-work laws are one area of labor-management relations not governed by federal labor law. More precisely, federal law permits states to prohibit agreements between an employer and union that requires membership in the labor organization as a condition of employment. The Wagner Act of 1935, better known as the National Labor Relations Act, protected the rights of employees to organize a workforce and mandated that employers engage in collective bargaining over hours, pay, and working conditions. The NLRA permitted agreements that required membership as a condition of employment. Thus, employment could be restricted to union members only, a so-called “closed shop.”

In 1947, Congress passed the Taft-Hartley Act over President Truman’s veto. This act outlawed closed shops. The Act allowed the establishment of an “agency shop” in bargaining agreements where company employees can opt out of the union but are still required to pay the equivalent of union dues. In a victory for right-to-work advocates, however, Section 14(b) of Taft Hartley allows states to prohibit compulsory union membership dues and fees while still obligating unions in such states to fully represent all employees, whether they pay dues or not. These employees — known as “free-riders” — are the main target of the right-to-work repeal. It has been estimated that up to 33% of workers in unionized Michigan workforces have opted out of union membership and the resulting duty to pay dues, but this will no longer be an option.

That said, employees retain the right under federal law to opt out of union membership under federal law; however, unions and employers may agree that these non-members must still pay dues and fees related to the union’s bargaining and representative obligations. And the law does not apply to state employees due to the U.S. Supreme Court’s 2018 ruling in Janus v.AFSME, which held compulsory public union membership violates the first amendment to the U.S. Constitution.

Although the law takes effect in 90 days, unions for private-sector employers in Michigan will have to seek to re-open existing contracts or wait until a contract expires to bargain for compulsory dues. Some existing contracts may have mandatory dues clauses that were automatically triggered because of right-to-work being repealed.

Eric J. Pelton