• Discussion of Freedom-To-Work Legislation
  • December 18, 2012 | Authors: Michael R. Blum; Ray H. Littleton; Frank T. Mamat
  • Law Firm: Foster, Swift, Collins & Smith, P.C. - Farmington Hills Office
  • On Tuesday night, Governor Snyder signed House Bill 4003 and Senate Bill 116, making Michigan the 24th state to enact "freedom-to-work"/ “right-to-work” laws.1 House Bill 4003 applies to the public sector and Senate Bill 116 applies to the private sector. In short, this legislation will prohibit an individual from being required as a condition of obtaining or continuing employment to do any of the following:

    • Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.

    • Become or remain a member of a labor organization.

    • Pay any dues, fees, assessments, or other charges or expenses of any kind or amount or provide anything of value to a labor organization.

    • Pay to any charitable organization or third party an amount that was in lieu of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of or employees represented by a labor organization.

    In addition, any agreement, contract, understanding, or practice between or involving an employer and a labor organization that violates this prohibition will be unlawful and unenforceable. However, police and firefighters are exempt from Michigan’s Freedom-to-Work laws because of the unique nature of their jobs and other Michigan laws applicable to their collective bargaining rights.

    The State of Michigan has the authority to implement these Freedom-to-Work/Right-to-Work laws under Section 14(b) of the National Labor Relations Act (NLRA), which allows the State to enact laws prohibiting union security clauses in union contracts. Section 14(b) provides, “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” A “union security clause” is a provision in a collective bargaining agreement that requires an employee to either become a member of the union or pay at least union “agency fees” (union dues minus deductions for union political expenditures, lobbying, public relations and organizing efforts) in order to remain employed.

    Michigan’s Freedom-to-Work laws will apply to collective bargaining agreements that become effective or are extended or renewed after the scheduled effective date of March 16, 2013. So what does this mean for currently unionized employees in Michigan?

    Currently, employees already have the right to “resign” from their union or not join their union. In other words, an employee cannot be compelled to become a member of a union. Nonetheless, the union is still required to represent all employees in the bargaining unit regardless of union membership and those who choose not to remain union members will nevertheless still be fully covered by any collective bargaining agreement negotiated between an employer and the union. Moreover, any benefits that are provided by an employer pursuant to the collective bargaining agreement (e.g., wages, seniority, vacations, pensions, health insurance) will not affected by an employee’s non-membership.2 However, if an employee is not a member, the employee will not be able to participate in union elections or meetings, vote in collective bargaining ratification elections, or participate in other "internal" union activities.

    Most importantly, until the Freedom-to-Work/ Right-to-Work legislation takes effect on March 16, 2013, Michigan non-member employees will still be subject to “union” dues or an “agency fee” in lieu of full dues assessed to union members. After March 16, 2013, however, Michigan employees, who do not work on certain federal property, will have the right to refrain from becoming a union member and will not be required to pay dues or an agency fee to the union unless the employee choses to join the union.

    1Twenty-three states currently have Right to Work legislation, including: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.

    2If the union offers some "members-only" benefits, a non-member might be excluded from receiving those.