Tag: Right-to-Work

Dane County Judge: Wisconsin’s “Right to Work” law unconstitutional

wisconsin supreme courtIn a decision issued April 8, 2016, Dane County Circuit Court Judge William Foust ruled that Wisconsin’s “Right to Work” law violates the Wisconsin Constitution because it takes union property without just compensation (i.e., it is an unlawful taking).

According to the Wisconsin Manufacturers & Commerce (WMC), which played a leading role in seeking and attaining passage of the law, Judge Foust’s decision “is an act of blatant judicial activism that will not withstand appellate review.” Wisconsin Attorney General Brad Schimel also issued a statement expressing disappointment in the ruling and stating that he is “confident the law will be upheld on appeal.”

Judge Foust ruled that the law unconstitutionally takes union property by forcing a union to represent workers who are not members of the union and do not pay dues to the union. Judge Foust found the State’s argument that “neither federal law nor state law requires a union or other entity to become an exclusive bargaining representative” to be “disingenuous.” According to Judge Foust, the unions have no choice in representing all employees because, by law, their existence depends upon being the exclusive bargaining agent for any particular bargaining unit.

A copy of Judge Foust’s order is available here.

Article by: Rufino Gaytán of Godfrey & Kahn S.C.
Copyright © 2016 Godfrey & Kahn S.C.

But Wait! There’s More: The 11th Right to Work Misconception

Barnes & Thornburg

We’ll take the liberty of adding an 11th item to Scott Witlin’s excellent list of the top-10 most common right to work misconceptions.

11.  Right to work laws do not necessarily allow employees to immediately stop paying dues.

The devil’s in the details. In numerous Indiana union shops, workers asked to be freed from their dues-paying obligations after Right to Work was enacted. Michigan employers may be experiencing this already as well. Some Indiana employers stopped deducting their union dues. But it’s not the simple. As we have discussed before in this blog, employers must retrieve their employee’s dues authorization cards before they can stop taking union dues from their paychecks. As the NLRB has previously held in several cases, the language in the dues authorization cards control as to when and how an employee can revoke his or her consent to the dues deductions.

© 2012 BARNES & THORNBURG LLP

Michigan’s New Right to Work Law: What It Means for Employers, Workers and the Upper Midwest

Michael Best Logo

On December 11, 2012, Governor Rick Snyder signed into law two bills collectively enacting “Right to Work” legislation in the State of Michigan. Michigan becomes the 24th state to enact some form of a right to work law, and joins Indiana as the second state in the Upper Midwest to do so in 2012. Wisconsin passed a similar law in 2010, though that highly publicized legislation applied only to public sector employers and unions. The most significant aspect of right to work laws is that they prevent unions and employers from requiring workers to join a union or to pay union dues as a condition of employment. The law will take effect gradually (it takes effect on or around April 1, 2013), as it allows all current collective bargaining agreements between unions and employers to remain in place.

So what does the new law actually say? Michigan’s Right to Work Law was passed as two separate Public Acts. Public Act 348 addresses private sector unions and amended 1939 PA 176, which governs many union activities and the relationship between unions and private employers in Michigan. Public Act 349 is a nearly identical Act that relates to public sector employers and unions. The following is a summary of significant changes to private sector relationships between unions and employers as a result of Public Act 348:

  • Outlaws Closed Shops. Private sector employees may now choose whether or not to join a union or pay any dues or charitable contributions in relation to union membership. Individuals can no longer be required, as a condition of new or continued employment, to join or pay dues to a union, or to pay any charitable organization or third party an amount in lieu of union dues. Employees in Michigan can now decide, individually, whether they want to join a union and pay dues (“open shop”). Under prior Michigan law, an employee, by a labor agreement, could be compelled to join a union and pay dues (referred to as “closed shop” or “union security” clause). That is now banned.
  • Individuals Still Must Be Allowed to Join Unions. Consistent with prior Michigan law, individuals shall not be required to refrain or resign from membership in or to avoid financially supporting a union as a condition of employment.
  • Invalidates Closed Shop Agreements. Any agreement, contract, understanding, or practice between an employer and a labor organization that violates the Act is invalid.
  • Current Collective Bargaining Agreements Unaffected. The Act contains a “Grandfather Clause.” The prohibition against closed shop agreements applies only to an agreement, contract, understanding, or practice that takes effect or is extended or renewed after the effective date of the Act.
  • Violation Subject to Civil Fine. Any individual, employer, or labor organization that violates Section 1 of the Act by requiring an individual to join or resign from a union, or pay or refrain from paying dues, may be fined up to $500.
  • Private Right of Action for Injured Persons. Any person injured by a violation of the Act (i.e. forced or threatened to be forced to join or quit a union as a condition of employment) may file a civil action for injunction and damages. The provision contains a “fee shifter,” meaning a prevailing plaintiff gets costs and reasonable attorney fees associated with the civil action.
  • Employees Subject to Civil Fines for Intimidation. Any employee who attempts to compel by force, intimidation, or unlawful threats any person into joining a union or paying dues may be liable for a civil penalty of up to $500.
  • Responsibilities of the Michigan Department of Licensing and Regulatory Affairs (LARA). The Act allocates $1 million to LARA to do the following: (1) respond to public inquiries regarding the Act; (2) provide sufficient staff and resources to implement the Act; and (3) inform employers, employees, and labor organizations concerning their rights and responsibilities under the Act. An informational hotline, website, and/or informational pamphlets are likely to become available as a result of this section.

Public Act 349 contains nearly identical provisions pertaining to public sector employers and unions in Michigan. The only significant difference in Public Act 349 is it contains an exception for public police, fire departments, and state police unions. These unions may continue to collectively bargain for an agreement that all members of their organization shall pay union dues or fees to their union or exclusive bargaining representative.

There are likely to be challenges, both legal and political, to the new legislation. Labor unions, including the Michigan-based UAW, have already pledged to challenge the Acts in court. The Acts grant exclusive jurisdiction to the Michigan Court of Appeals, and indicate that the Court of Appeals will hear the action in an expedited manner. From a political standpoint, the monetary allocation to LARA in each Act prevents a referendum on the Acts because of language in Michigan’s Constitution. Instead, the UAW has indicated it will attempt to recall state legislators who supported the Act, and potentially Governor Snyder. A recall effort as to Governor Snyder may be less likely because he is up for re-election in 2014, but one might expect a scene similar to what played out in Wisconsin throughout 2011.

The significance of this legislation will also be felt throughout the Upper Midwest. Like Wisconsin, Michigan may be viewed as a bellwether for union opposition to right to work legislation. State and local governments, as well as private employers operating in closed shop states will need to remain aware of regional trends and shifting business climates as the right to work legislation in their neighboring states begins to take effect. As Michigan’s neighbor to the south, Ohio is now potentially under more pressure to pass a right to work measure given that its surrounding neighbors, Indiana, Kentucky, and now Michigan, are right to work states.

MBF client-employers will want to continue to monitor legislative developments, especially those clients making site selection decisions either to expand existing facilities or open new locations. Also, for those clients with operations in Michigan, there are issues to consider now including employee communications and other impacts the new Michigan law will have on existing operations.

© MICHAEL BEST & FRIEDRICH LLP

Right to Work Passes, Signed by Michigan Governor

Barnes & Thornburg

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)

© 2012 BARNES & THORNBURG LLP

Indiana Becomes the First "Right-to-Work" State in the Rust Belt

The National Law Review recently published an article regarding Right-to-Work by Lisa Carey-Davis of Schiff Hardin LLP:

Indiana Governor Mitch Daniels signed the Right-to-Work Act, making Indiana the first Rust Belt state — and the first state in more than ten years — to adopt right-to-work legislation. With this law, Indiana joins 22 other states, mostly in the southern and western United States, that prohibit employers from requiring employees to become or remain union members and to pay dues or fees to the union as a condition for getting — and keeping — their jobs.

The Impact of the New Law in Indiana and Beyond

Supporters of the new law contend that because it offers employers “more flexibility and lower hiring costs,” more businesses will now choose to call Indiana home. Republican House Speaker Brian Bosma declared that the Right-to-Work Act “announces, especially in the Rust Belt, that we are open for business.”

Some suggest that other Rust Belt states may soon follow Indiana’s example. State Representative Jerry Torr, who sponsored Indiana’s bill, has predicted that two of Indiana’s more heavily unionized neighbors — Michigan (19%) and Ohio (14%) — will “fall like dominoes” in the wake of Indiana’s decision because “they will have to in order to compete.” Mike Shirkey, a Republican state representative from Michigan, admitted that he was disappointed that Indiana beat Michigan to the punch, adding “now a border state is going to establish a leverage position in being attractive to businesses.”

Currently, roughly 11% of Indiana’s workforce is unionized, primarily in the auto and steel industries. If history is any indication, that number may soon decline. On average, right-to-work states have significantly lower rates of unionization than states without such laws. In 2010, for example, the average rate of unionization was seven percent in right-to-work states, while the average in the rest of the states was more than double at 15%.

The Right-To-Work Act was passed by Indiana’s Republican-controlled legislature over bitter opposition from Democratic lawmakers, including a walkout by House Democrats that denied Republicans for several weeks the quorum required to take action on the bill. Democrats also proposed an amendment that would have put a Right-to-Work referendum on the November ballot, but that amendment was voted down. Unlike Ohio — where a short-lived statute that stripped public sector employees of collective bargaining rights was struck down last year by voters — ballot initiatives in Indiana must be approved by the legislature and cannot be introduced by voters. Therefore, a referendum vote on Indiana’s new law is unlikely.

What the New Law Means for Indiana Employers

The new law contains a grandfather clause that exempts any collective bargaining agreement already in effect on March 14, 2012. Until those grandfathered contracts expire, employers may continue to abide by and enforce union security provisions contained therein by requiring employees to join unions and to pay dues as a condition of employment.

But contracts “entered into, modified, renewed, or extended” after the new law takes effect on March 14 cannot contain such requirements. Specifically, the law prohibits employers from requiring employees to join or remain members of any labor organization, and from requiring them to pay dues, fees or “other charges of any kind” to such organizations. If a contract violates any of these prohibitions, the entire contract — not just the offending clause — is “unlawful and void” according to the statute. In addition, any Indiana employer that violates the law may be subject to both criminal and civil penalties and may be sued by an individual who claims to have been injured by the employer’s actual or threatened violation of the law.

Employers are not required to inform employees about the change in the law, but some may wish to do so.

© 2012 Schiff Hardin LLP