Labor: Michigan right-to-work law continues to put labor on its heels

States, the federal government, organized labor and the NLRB all have a stake in this debate

Michigan became the 24th state to pass “right-to-work” legislation on Dec.11, amid scenes of protest reminiscent of the Wisconsin, Indiana and Ohio capitals in recent years. The law means that public and private sector employers cannot require employees to become union members or pay union dues as a condition of employment. So-called right-to-work states differ from union-security states, where the law allows collective bargaining agreements to require all employees to join the union or pay union dues. TheMichiganright-to-work law came as a surprise to many because it was introduced and passed in a matter of days. 

The Michigan law is yet another powerful blow to labor dealt by states over the last few years. In 2011, Wisconsin was at the center of a national polemic caused by Governor Scott Walker’s law, popularly known as Act 10, which removed collective bargaining rights from public employees. This law proved to be the beginning of a snowball effect as a wave of legislation followed inOhioandIndianaaffecting both public and private sector workers. Although later repealed, Ohio implemented legislation similar to the Wisconsin law that prevented public employees from collectively bargaining on significant issues related to their employment. Indiana became the first state in several years to pass right-to-work legislation.

The impact of these developments was highlighted by each occurring in the backyard of labor’s biggest Midwestern strongholds. Wisconsin has a long history of supporting the labor movement as one of the first states to recognize the collective bargaining rights of public employees. Moreover, few cities rival Detroit as the modern-day face of labor, considering its association with auto workers there. In each case, however, Republican lawmakers seized the opportunity before them through their control of state government to pass through these significant pieces of legislation.

By passing its recent right-to-work law, Michigan may be paving the way for further changes in state legislatures. As recently as earlier this year, Michigan Governor Rick Snyder downplayed his interest in passing right-to-work legislation, but quickly signed the bill into law when it crossed his desk. Wisconsin’s Governor Walker made similar remarks once in office, suggesting right-to-work is not a priority for him. However, Governor Walker sponsored right-to-work legislation earlier in his political career as a member ofWisconsin’s Assembly. With Republicans holding the governor’s office in 30 states, it seems likely other parts of the country may build on these Midwest efforts to curtail the influence of labor.

The counter-weight to these state-based measures lies in the federal government. At an event inMichiganwhile the right-to-work bill was proceeding to the Governor’s desk, President Obama signaled his opposition to the law. The President also enjoyed significant support from organized labor on his way to re-election in November. With Democratic control over appointments to the National Labor Relations Board, the primary federal authority on labor is sure to continue to support collective bargaining rights in the private sector. These efforts will likely build on the NLRB’s pursuit of greater influence over the last four years by diving into social media policies and practices, speeding up election procedures and using its rulemaking authority to require posting of employee rights under the National Labor Relations Act.

Another consideration in this great debate is the role that courts will play.Wisconsin’s Act 10 is currently embroiled in the state and federal court system with judges ruling on the constitutionality of provisions contained in the law. Those legal challenges are sure to continue. Governor Snyder’s remarks following the passage of Michigan’s right-to-work law also anticipate that passing the law is not the final step. How courts interpret these laws may have profound effects on whether legislators and governors attempt to pass or how they may write future laws. 

While union participation rates remain at historical lows, it has been a long time since the country experienced this much activity affecting labor. The various political parties are actively exercising their control to strengthen or weaken the powers and influence of labor where possible. As these changes continue to develop, it is important to consult counsel to stay ahead of the game.

Contributing Author

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

Additional Contributors: Jesse Dill

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