Michigan

The 6th Circuit in Bailey v. Callahan, decided Thursday, May 9, has vacated an injunction entered by the District Court and has upheld Michigan’s Public Act 53 which prohibits Michigan’s public schools from assisting in the collection of dues and service fees for unions. The Court summarized the Union’s First Amendment challenge to the statute in this way:

“Unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.” 

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Now that Right to Work is a reality in Michigan, the State has hired a labor specialist to assist in implementing the laws, which went into effect March 28.  Travis Calderwood was hired by the Michigan Bureau of Employment Relations in February to field questions from those who want to know more about the operation of the new law. Mr. Calderwood recently gave MLive an interview answering certain common questions. Employers with additional questions can contact Mr. Calderwood through the Bureau of Employment Relations.  

See all of our previous Michigan Right to Work coverage here.

The dues spigot from Michigan’s home health care workers that had been pouring money into SEIU’s coffers since 2006 has been officially shut off, according to the Director of the Michigan Department of Community Health. Director James Haverman confirmed to the Mackinac Center for Public Policy that SEIU has ended its status as bargaining representative for Michigan’s home health care workers after their contract expired in February.

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A group of Michigan labor unions filed a lawsuit yesterday challenging the constitutionality of Michigan’s recently enacted Right to Work legislation. The lawsuit, filed in the U.S. District Court for the Eastern District of Michigan, challenges only the legislation affecting private employers, claiming that it violates the Supremacy Clause of the federal Constitution because private employers are regulated by federal labor law, not state law. The complaint asks for a declaratory judgment finding the Right to Work legislation invalid. 

The unions bringing the suit likely have a tough road ahead if they are to succeed in the lawsuit. As we previously covered, a lawsuit challenging Indiana’s Right to Work law under similar theories was soundly dismissed by an Indiana federal court in January, and lawsuits in other states have similarly been unsuccessful.

The lawsuit filed Monday is the second to challenge Michigan’s Right to Work law.  A previous lawsuit filed in state court claims the law should be invalidated because the way it was passed violates the state’s Open Meetings Act, citing the fact that Michigan’s Capitol Building was closed to the public due to a large number of protestors when the bills were passed on Dec. 6, 2012.  The ACLU has stepped in to represent Michigan’s labor unions in that lawsuit, which is pending in Ingham County.

The new lawsuit is Mich. State AFL-CIO et al. v. Callaghan et al., Case No. 2:13-cv-10557 (E.D. Mich.).  A copy of the complaint is available here.

See all of our previous Right to Work coverage here.

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

2012 saw two states adopt new right to work laws: Indiana and Michigan. As a result, the concept of right to work has been prominent in the news for the first time in decades. From the recent protests in Michigan, as well as those earlier in the year, it would seem that many protesting do not understand what a right to work law does and does not do. The label “right to work” has become been so laden with the baggage of being anti-union, that few beyond labor lawyers and union officials understand what these laws are and what they do.

In the face of these misconceptions, here are 10 facts about right to work laws:

1. Right to work laws do not ban collective bargaining;
2. Right to work laws do not prohibit employees from joining unions;
3. Right to work laws do not invalidate existing collective bargaining agreements;
4. Right to work laws do not make it more difficult for unions to organize non-union workers;
5. Right to work laws do not outlaw strikes;
6. Right to work laws do not allow employers to discriminate against employees because of their union activity;
7. Right to work laws do not allow employers to fire strikers;
8. Right to work laws do not allow employers to ignore lawfully selected employee unions;
9. Right to work laws do not allow employers to cut employee pay; and
10. Right to work laws do not take away any rights from the employees as opposed to unions.

What right to work laws do is simply take away the ability of a union to force an employer to fire an employee if the employee does not want to pay the union the costs of union dues and/or initiation fees.  In non-right to work states, Federal labor law permits an exception to the discrimination provisions in the statute and permit unions to require that employers fire employees who do not pay money to the union.

Big unions hate these laws because it hurts them economically.  They cannot impose upon employees—frequently without any choice on the employees’ part—the obligation to pay the union money for the privilege of keeping their jobs.  Unions hate these laws, not because it impacts the rights of the employees, but because it hits the unions and their officials in their piggy banks.  The fewer union-dues payers, the less money there is for the unions to pay their officers and employees.  In addition, when workers choose not to join a union, they remain free of any threat of union discipline (expulsion or fines) if they choose not to follow the union’s rules.  This means the union officials have less power over the workers whose interests they are supposed to represent. 

Thus, while right to work laws make things harder for unions, there can be no doubt that they preserve rights and freedoms for individual workers. 

As expected, the Michigan House voted today to enact the pending Right to Work bills. Michigan Governor Rick Snyder signed the bills this evening, making Michigan the 24th Right to Work state in the nation. The changes to the law become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013.

The full text of the final bills is available on the Legislature’s website and can be accessed by clicking on the links below:

SB 116(private employees)
HB 4003(public employees)

On Dec. 6, 2012, the Michigan House and Senate passed bills that, if signed by Governor Rick Snyder, will give private and public sector employees the right to not pay union dues to a union representing an employer's employees as a condition of employment. The legislation addressing public sector employees includes all public employees except for police officers and firefighters. If this legislation becomes law, Michigan will become the 24th Right to Work state in the United States.

Because applicable procedural rules require that there must be a five-day period before Michigan's House and Senate can vote on the other chamber's bill, the legislation has not yet made its way to Governor Snyder's desk. During this five-day period there is expected to be a heavy lobbying effort by organized labor as well as proponents of the proposed legislation. Yesterday Governor Snyder said he will sign both pieces of proposed legislation into law when they reach his desk. If passed and signed, it is anticipated this proposed legislation will become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013. 

Given the impact this legislation would have on both private and public Michigan employers, Barnes & Thornburg's Michigan office will present a program regarding the practical impact that Right to Work may have on Michigan employers. The programs are scheduled for Jan. 3, 2013 and Jan. 17, 2013. More detailed information about these presentations will be available as soon as the Right to Work law is signed. 

The Right to Work bills are House Bill 4003, House Bill 4054, and Senate Bill 116.

See also: 

Right-to-Work Legislation Speeds Ahead in Lansing (Detroit Free Press)

Right-to-Work Bills Win Approval from Michigan Senate, House (Mlive.com)

Back in July, we told you about Michigan's second stab at putting limits on the use of Project Labor Agreements (PLA) in the state. Michigan's first PLA-limiting law was blocked by a federal court ruling that the subject area covered by the PLA law was pre-empted by the National Labor Relations Act.

Late last week, a federal court judge in Michigan called strike two on the state finding the revised version of the PLA bill also was pre-empted by the National Labor Relations Act.

The law, entitled the Michigan Fair and Open Competition in Government Construction Act, would have barred local communities from entering into contracts (PLAs) which required bidders, contractors and subcontractors to adhere to the terms of or become signatories to collective bargaining agreements for work on that particular project.  The Court applied the U.S. Supreme Court's decision in Garmon which concluded that the right to enter into PLAs is a right protected by Sections 7 and 8 of the NLRA. 

We'll continue to monitor this - and the previous case - as they go through the appellate system. 

The UAW and other unions spent more than $23 million in their campaign to amend the Michigan Constitution to make unionization a right protected under the state's constitution. After fighting a tough fight through the Michigan courts to even get Proposal 2 on the ballot, Michigan voters on Tuesday soundly defeated the measure 58 percent to 42 percent.

The unions pushed Proposal 2 because of what they viewed as anti-labor initiatives from Governor Snyder as well as the threat posed when neighboring Indiana pushed through a right to work act.  Snyder has stated before that he has no interest in pushing a right to work bill in Michigan which has the third highest percentage of unionized workers in the country.

For coverage on the defeat of Proposal 2, you can look here:

Detroit Free Press – “Michigan voters reject all proposals; emergency manager law repealed.”

Purt Huron Times-Herald – “All Michigan proposals defeated, emergency manager law repealed.”