March 31, 2023
By Robert G. Brody and Mark J. Taglia
Late last week, Michigan’s Governor, Gretchen Whitmer, made history when she signed legislation repealing Michigan’s right-to-work law for private-sector employees. The legislation moved swiftly through both Michigan’s Democrat-controlled House of Representatives and Senate and was approved down party lines before quickly being signed into law. The effective date of the new legislation is March 30, 2024. Michigan was just one of 27 states to have a right-to-work law, and now it becomes the first ever to repeal one. This is a major win for Democrats in the state and perhaps creating a road map for others to follow.
What are Right-to-Work laws?
As mentioned above, 27 states have banned “union security” agreements by passing so-called “right to work” laws. In these states, it is up to each private-sector employee at a unionized workplace to decide whether to join the union and pay the full amount of dues, even though all workers are protected by the collective bargaining agreement negotiated by the union.
The new legislation includes a provision known as a union security clause which will allow collective bargaining agreements to require employees to pay union dues or lose their jobs. This will be a first for private-sector employees in Michigan since Michigan’s right-to-work law was passed in 2012.
Under the National Labor Relations Act, union security clauses are a “mandatory subject” for bargaining. This ensures the parties will discuss union security clauses if either party raises them. Mandatory subjects are those that directly impact wages, hours or working conditions (or terms and conditions of employment). These are subjects over which the parties to a collective bargaining agreement must bargain if a proposal is made by either party. This does not mean the parties have to reach agreement on such proposals, but rather that they must engage in the process of bargaining in good faith. Mandatory subjects may be bargained to impasse. If impasse is reached, a strike or lockout could be called.
With the passage of the new law, Michigan employers with unionized employees whose collective bargaining agreements do not contain a union security clause should anticipate a demand for one during the next negotiations. Getting such an addition after the first contract is negotiated will be difficult, It will be interesting to see what the union will be willing to give up in exchange for union security.
Because the new law includes appropriations for the state’s Department of Labor and Economic Opportunity (to enact, staff, educate and respond to inquiries regarding the new law), the new law will require a constitutional amendment or court ruling for it to be repealed. But for the included appropriations, a simple ballot initiative would have been enough to repeal it.
We encourage all our clients with Michigan based unionized employees to review their collective bargaining agreements to ascertain whether a union security clause is present and whether the agreement may need to be reopened for negotiations as a result of the repeal of the state’s right-to-work law.
It is obviously too soon to tell what impact this law will have on the national stage, or even on Michigan employers specifically. It could be a financial boon for unions or alternatively it could force employees who are anti-union to leave seeking the opportunity to remain union-free. More to come.
Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at email@example.com or 203.454.0560.