Right to Work: Right for Michigan? Asked & Answered: Eric J. Pelton

By Steve Thorpe

Legal News

Indiana recently became the first state in a decade to enact a so-called ''Right to Work'' law and was the 23rd state to adopt such a measure. Supporters in Michigan say a similar law is needed here to remain competitive. Critics say supporters overstate the economic benefits. Gov. Rick Snyder has said that the debate is divisive and he doesn't want to see Right to Work legislation cross his desk.

Eric J. Pelton, a founding member of Kienbaum Opperwall Hardy and Pelton, PLC, has represented employers in litigation and concerning traditional labor matters for more than 20 years.

Thorpe: What are the characteristics of a typical ''Right to Work'' law?

Pelton: States without Right to Work laws, such as Michigan, permit union security agreements that condition employment on financial support of a union. If an employer has entered into a collective bargaining agreement with a union that includes a so-called union security clause, a bargaining unit employee can be terminated if he or she fails to pay dues. A Right to Work law prohibits such union security agreements and also prohibits employers from conditioning employment on the payment of dues. Unions are still required to represent all employees, even those who decline to pay dues. Right to Work laws are strictly limited to this issue.

Thorpe: Do you anticipate any legislation introduced in Michigan to differ greatly from other states?

Pelton: The Right to Work legislation currently being discussed in Michigan is a less stringent version of what some other Right to Work states, such as Indiana, have enacted. The proposed Michigan legislation does not automatically cover all employees within the state. Instead, House Bill 4054, which is currently pending in the House Commerce Committee, would give municipalities and public school districts the opportunity to enact ''Right to Work Zones,'' which would allow specific geographic areas to enact Right to Work laws or maintain the current system. If HB 4054 were to become the law in Michigan, the Right to Work debate would then turn to the local level. Also, Senate Majority Leader Randy Richardville has spoken out in favor of a Right to Work law that would only apply to Michigan public school teachers. At this stage it is difficult to determine what form a Right to Work law in Michigan might eventually take, if one is enacted at all, but it seems unlikely politically that it will be as all-encompassing as the recently enacted law in Indiana.

Thorpe: Indiana was the first state in a decade to enact a Right to Work law and the first from a so-called ''Rust Belt'' state. The campaign to enact that there became a bitter and ugly battle. Would you expect the same here in Michigan?

Pelton: Recent polls have shown that a majority of Michigan residents favor a Right to Work law. However, any effort to make Michigan a Right to Work state would undoubtedly be faced with fierce opposition and a wide-scale disinformation campaign on all sides of the issue. Michigan has a long history with labor unions and any attempt to legislate power away from unions would be vigorously contested, even by some in the business community.

The economic benefits of Right to Work laws have been sharply disputed. Supporters often cite statistics showing that real personal income in Right to Work states outpaces that of non-Right to Work states. Opponents point to states such as Oklahoma and North Carolina that lost jobs after Right to Work laws were enacted. The fact that there is no consensus about the economic effects of Right to Work laws is one of the major factors contributing to the heated debate.

Thorpe: Michigan businesses tend to be less enthusiastic about Right to Work than their brethren in other states. Is this pragmatism simply a desire for labor peace in a fragile economic recovery, or is it based on other factors?

Pelton: There is no single explanation for the reluctance of Michigan businesses to support Right to Work legislation. The desire to maintain peace during the current period of economic recovery has been cited by business leaders as a significant factor for not aggressively pushing Right to Work legislation. Compared to other states, a large percentage of Michigan's workforce is affiliated with labor unions. That unions and their members have demonstrated their ability to influence political and economic conditions in this state is a significant consideration for many Michigan businesses.

Additionally, the pro-business tax and regulatory changes being implemented by Gov. Rick Snyder's administration and the Republican controlled legislature give employers the opportunity to improve their financial condition without having to take a stance on this politically charged issue.

Thorpe: Have there been legal challenges to Right to Work and, if so, how have they fared?

Pelton: Section 14(b) of the National Labor Relations Act grants to states the power to prohibit compulsory union membership and dues. Since this provision was enacted in 1947, several U.S. Supreme Court and U.S. Court of Appeals decisions have clarified its reach. Generally, the Supreme Court has upheld the validity of state Right to Work laws. However, state laws that have attempted to ban all union-employee relationships or other union activities such as hiring halls or service fees for grievance representation have been declared to fall outside a state's rights under Section 14(b), and thus preempted by the National Labor Relations Act.

Published: Mon, Mar 5, 2012

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