JURIST Guest Columnist Karla Swift of the Michigan State AFL-CIO argues that the “right to work” laws enacted by the Michigan Legislature in 2012 are unconstitutional and were enacted in violation of Michigan’s Open Meeting Act…

The Michigan State AFL-CIO is currently pursuing two separate litigation paths challenging the so-called “right to work” laws, which were rushed through the Michigan Legislature and hastily signed by Governor Rick Snyder in December 2012. We firmly believe that, one way or another, these unjust laws will be overturned.

As JURIST previously reported, the Michigan State AFL-CIO, together with the Change to Win Coalition and the Michigan State Building and Construction Trades Council, filed a lawsuit in US District Court for the Eastern District of Michigan challenging the constitutionality of Public Act 348 (PA 348) [PDF], the new right to work law covering private sector employers and workers.

PA 348 violates the Supremacy Clause of the US Constitution by imposing state regulation in an area that is preempted exclusively by the National Labor Relations Act (NLRA). Specifically, PA 348 violates the Supremacy Clause by invading federally preempted regulation of private sector labor management relations it at least the following respects:

• It imposes penalties for violation, such as civil fines, criminal penalties, and a private right of action, which are not provided for under the NLRA;
• It regulates an employee’s right to “refrain from” organizing, bargaining and other concerted workplace activities;
• It regulates conduct aimed at causing individuals to refrain or resign from union membership and union financial support;
• It restricts union-administered employment referral and “hiring hall” arrangements;
• It invalidates an entire collective bargaining agreement between an employer and workers if any provision violates 2012 PA 348.

These unconstitutional provisions are not severable from the rest of the law and, therefore, our lawsuit calls on the court to permanently enjoin Michigan from enforcing right to work in the private sector.

Our state’s newly adopted right to work laws are also subject to challenge based on the unprecedented way in which they were enacted. The Michigan State AFL-CIO has joined with other union organizations, the American Civil Liberties Union (ACLU), legislators and journalists as plaintiffs in an action to challenge the new right to work laws on the grounds that they were passed in violation of Michigan’s Open Meetings Act [PDF].

The case was filed in Ingham County Circuit Court and charges that government officials, in an unprecedented assault on democracy, deprived the public of their right to participate in and observe the legislative process, by locking citizens out of the Michigan State Capitol while crucial legislative action was taking place. Under Michigan’s Open Meetings Act, citizens have a stake in seeing that our government conducts business in a democratic and transparent way. No laws should be passed while citizens are locked out of their Capitol building.

In addition to being illegal, the secretive conduct of the legislature was shameful. It’s particularly disturbing that journalists were prevented from providing complete coverage of this historic lame duck session. The public has a right to know what their government is doing. These are the facts alleged in the complaint:

• On Dec. 6, 2012, the Michigan Capitol doors were locked to prevent additional people from coming to witness or engage their legislators while the controversial right to work bills were being debated on the House and Senate floors.
• The public, including some journalists, were locked out for more than four hours while legislators debated and voted on the bills.
• While individuals already in the Capitol could stay, people waiting outside were not allowed to enter.
• The galleries overlooking the House floor were intentionally packed with legislative staffers so that the public would not be allowed in.
• The lockout at the Capitol merely added to the legislators’ attempts to swiftly pass these bills with little public input. The bills were abruptly introduced during the last days of the lame-duck legislative session, already a period of diminished public accountability.
• Rather than allowing the bills to go through the standard committee hearing process where the public would have been invited to comment, the right to work language was introduced for the first time on the House and Senate floors on the same day the bills were passed.
• As further evidence of the desire to prevent the public from holding their government accountable, the lawsuit also notes the appropriations provision that was added to make the legislation referendum-proof under the Constitution of Michigan.

Like its private-sector counterpart, Public Act 349 (PA 349) — the so-called right-to-work amendment to the Public Employee Relations Act (PERA) [PDF] — was hastily enacted in a few days during the lame duck session in December 2012. Snyder and Attorney General Bill Schuette assert that PA 349 applies to Michigan’s classified civil service, despite decades of case law reaffirming that the exclusive and plenary jurisdiction of the Michigan Supreme Court takes precedence over attempts by the legislature to regulate employment in the civil service. The application of PA 349 to the civil service not only would violate the Constitution of Michigan, it would exceed the legislature’s powers and conflict with PERA itself.

In an attempt to short-circuit the normal judicial process for deciding such questions, the governor has requested an advisory opinion from the Michigan Supreme Court as to whether the application of PA 349 is constitutional. We believe that the question should be given full due process in the lower courts and, therefore, the Michigan State AFL-CIO has filed an amicus brief urging the court to reject the governor’s request.

At the time this article was submitted, the Ingham County Circuit Court had dismissed the case against PA 349 on jurisdictional grounds; a similar suit was subsequently filed with the Michigan Court of Appeals. The Michigan Supreme Court has yet to respond to the governor’s request for an advisory opinion.

Without intervention, right to work laws for both public and private sector workers will go into effect on March 27, 2013. In the event that these policies are enacted temporarily, the Michigan State AFL-CIO will continue to pursue all legal and political avenues available to have these unreasonable collective bargaining restrictions reversed. Working people will continue to organize, and the labor movement will overcome this obstacle.

Karla Swift is the President of the Michigan State AFL-CIO.

Suggested citation: Karla Swift, Michigan’s So-Called ‘Right to Work’ Laws Face Legal Challenges, JURIST – Hotline, Mar. 13, 2013, http://jurist.org/hotline/2013/03/karla-swift-michigan-right-to-work.php