JURIST Guest Columnist Theodore J. St. Antoine of the University of Michigan Law School says that although Michigan’s right-to-work laws raise several constitutional issues and were adopted under unusual circumstances, the courts will likely uphold the core provisions prohibiting the union shop….

One may believe, as I do, that so-called “right-to-work” laws have little to do with protecting workers’ claims to jobs and almost everything to do with impeding a union’s capacity to represent working people effectively. Even so, it is an entirely different question whether the new Michigan right-to-work legislation is legally vulnerable to the various court actions that have been filed to challenge it.

A right-to-work law prohibits a union and an employer from entering into a “union shop” agreement that requires employees to join the union or pay dues or fees to the union as a condition for keeping a job. Under federal law, which governs most private businesses of any significant size, only a union that has the majority support of the employees in a plant or other bargaining unit can lawfully obtain such a “union shop” agreement.

Federal law only permits a union to enforce the payment of what union supporters call the individual worker’s “fair share” of the union’s costs of representing all the employees in the bargaining unit, members and nonmembers alike. Employees cannot be required to become union members and subject themselves to union rules like, for example, having to honor a picket line during a strike. As a practical matter, state right-to-work laws are primarily concerned with the payment of dues and fees, not union membership as such.

Under the doctrine of federal preemption, the regulation of labor relations by federal law would ordinarily preclude most state intrusions. But a compromise was reached when Congress adopted the Taft-Hartley Act in 1947, which amended the National Labor Relations Act (NLRA). Section 14(b) of the NLRA expressly authorizes the states to prohibit agreements requiring union “membership” as a condition of employment. “Membership” here has been interpreted to include the payments of dues and fees, and states are allowed to prohibit that requirement as well.

Labor relations in the public sector dealing with state or municipal employees are generally not covered by federal law. They are subject to state law, limited by certain federal constitutional limitations like freedom of speech and assembly and equal protection of the law.

Michigan’s new right-to-work legislation consists of two different statutes, Act 348 dealing with the private sector and Act 349 dealing with the public sector. The Michigan State AFL-CIO and the Michigan State Building Trades Council have challenged the validity of Act 348 in federal district court. The ACLU, the State AFL-CIO, the State Building Trades Council and other union representatives have challenged both Acts in state court.

Neither court action contests the capacity of the state legislature to enact traditional right-to-work legislation prohibiting the standard union-shop agreement requiring union membership or the payment of dues and fees to a union as a condition of employment. The state court complaint did underline the “highly controversial” nature of the legislation, but the emphasis was on the procedures followed and the unusual circumstances on the day the two statutes were adopted.

Contrary to normal practice, the Michigan Senate and House of Representative took up the right-to-work bills in a “lame-duck” session in early December 2012 without the usual preliminary committee hearings and an opportunity for public comment. On the day the bills were debated and voted on, large crowds descended upon the Michigan State Capitol. Rightly or wrongly, legislative authorities considered the situation dangerous and ordered the building closed and locked — preventing access by members of the public who wished to enter. The building was reopened pursuant to a court order more than four hours later. In the meantime debates and voting had proceeded, although final votes on the legislation may not have been taken until after public access was restored.

The state court action alleged that the two right-to-work acts are invalid because they were adopted in violation of the Michigan Open Meetings Act’s [PDF] requirement that “all deliberations” and “all decisions” of a public body be made “at a meeting open to the public.” In addition, violations were charged of the Michigan Constitution’s guarantee of the right to assemble and petition the government, and of the US Constitution’s First Amendment parallel rights of free speech and assembly and the right to petition the government.

The outcome would seem to turn on a judicial assessment of the reasonableness of closing the Capitol and of the legislature’s continuing to operate in the face of that closing. Even if the closing itself was justified on the grounds that a large number of enraged protesters presented a substantial risk of bodily injury or property damage, that does not necessarily justify the legislature’s failure to adjourn until such time as order was restored and the risk eliminated. In fact, the legislature was able to proceed with its business when the Capitol building was reopened under court order. But there is a traditional presumption of legislative validity that the conservative majority of Michigan’s Supreme Court is likely to find persuasive.

The federal court action focuses on Act 348, which covers private employment. The plaintiffs contend that the law is unlawful in its entirety because some of its provisions are contrary to federal law and these unconstitutional provisions cannot be separated from its other provisions. The anti-preemption Section 14(b) of the NLRA limits state action regarding matters otherwise regulated by the NLRA to the actual “execution or application” of agreements requiring union membership (including the payment of dues and fees). The plaintiffs complain that Act 348 exceeds these limits by purporting to regulate other concerted activity governed by federal law, including conduct aimed at causing individuals to refrain from union membership or financial support and including union-administered job referral and “hiring hall” arrangements. The latter would clearly appear beyond the scope of Section 14(b)’s authorization as applied to the larger business firms subject to federal law. To that extent Act 348 would be invalid. But it would also seem that the section dealing with the “union shop” prohibition could be severed and sustained.

In addition to the two court actions that have been brought, Governor Rick Snyder has asked the Michigan Supreme Court to rule directly on several constitutional questions. For example, does Act 349 interfere with the authority of the Civil Service Commission (CSC) over the classified state civil service under the Michigan Constitution? Do the Acts violate equal protection of the law under either the State or US Constitution because the legislation does not apply to all employees in public or private sector bargaining units? Leaving the CSC issue to the experts in that area, one can safely predict that the exclusion of certain groups of employees from statutory coverage will satisfy the modest “rational basis” test applicable to equal protection issues when there are no “suspect classifications” like race or religion.

In my judgment, the courts will uphold the core provisions in both new statutes, prohibiting the union shop. How Michigan citizens will react is a story for another day.

Professor St. Antoine is the James E. & Sarah A. Degan Professor of Law Emeritus at Michigan Law School, where he was Dean from 1971 to 1978.

Suggested citation: Theodore J. St. Antoine, Challenges to Michigan’s Right-to-Work Laws, JURIST – Forum, Mar. 8, 2013, http://jurist.org/forum/2013/03/st-antoine-michigan-right-to-work.php