Right to Sue

Right-to-work legislation in Michigan sure to spark lawsuits

Labor Protest in Lansing / AP
December 11, 2012

Michigan Gov. Rick Snyder will make Michigan one of the largest right-to-work states in the country on Tuesday, but opponents have vowed to fight the legislation.

"You can expect the lawsuits. There’s nothing to prevent the unions from filing suit, so they’re going to do it," said Patrick Wright, a senior legal scholar at the conservative Mackinac Public Policy Center.

Snyder urged labor groups on Sunday to "move forward … and get something done so we can move on to other important issues in our state." The state’s powerful union shops responded by continuing protests that began last week.

"They've awakened a sleeping giant," United Auto Workers president Bob King told the Associated Press on Saturday.

Right-to-work legislation, which allows employees to opt out of union dues, has met legal challenges in almost every state that has adopted the reforms. Indiana, the first Rust Belt state to pass a right-to-work legislation, will defend its law before an Indiana federal court on Friday. Right-to-work supporters say the battle carries even more significance in traditionally labor-friendly Michigan where 17.5 percent of workers belong to a union.

Mark Mix, president of National Right to Work, has helped states across the country defend the laws. He expects one of his toughest battles yet in Michigan.

"Labor leaders jealously guard their privilege of forcing everyone into unions but the message is clearer in this case: If Michigan can do these labor reforms, anyone can," he said.

"The symbolism is central to whatever challenge [unions] raise—it would be quite embarrassing for the union movement to lose Michigan," Wright said. "It sends a strong statement about weakened labor influence."

President Barack Obama, who received millions of dollars from labor groups, slammed the law on Monday

"What they're talking about is giving you the right to make less money," Obama told union members near Detroit. "[The right-to-work laws] don't have to do with economics. … They have everything to do with politics."

Former Oklahoma Gov. Frank Keating says Obama has ignored right-to-work’s legacy of job growth. Jobs jumped nearly four percent since voters added right-to-work to the state constitution in 2001 despite two recessions.

"It’s a salvation stone for state economies," he said. "The difference between Oklahoma and Texas used to be the difference between North Korea and South Korea. We don’t have that obstacle anymore."

The path to Oklahoma becoming a right-to-work state faced many obstacles, especially in the courts. Labor unions immediately challenged the amendment, alleging that the state law would interfere with federal laws that allow railroad and airport employees to form unions. The Oklahoma Supreme Court rejected that argument in 2004 after a costly legal battle.

That ruling has not deterred union attorneys from filing suit against subsequent right-to-work legislation. Indiana labor groups have filed lawsuits in federal and state courts alleging that right-to-work laws violate Equal Protection rights and allow employees to benefit from union bargaining on wages without paying dues.

"Right-to-work no longer allows us to collect the reasonable fees for that representation so there’s a free rider problem there," said Marc Poulos, one of the attorneys challenging the Indiana law on behalf of the Indiana, Illinois, and Iowa Foundation for Fair Contracting (IIIFFC). "We also benefit [in the courts] from changes of philosophy that have started looking at labor rights as fundamental rights."

Several prominent Michigan unions have already consulted IIIFFC for legal advice though Poulos would not comment on the talks.

Right-to-work supporters claim it is the unions that have been free-riding under Michigan’s current system, which forces all employees to join unions as a condition of employment. Mix said workers rights would be reinforced by the labor reforms.

"There are ‘union security clauses’ in state law that say workers have to pay union fees, in order to work—they’re about union security, not worker security," Mix said. "With right-to-work, we can start a new model where workers can vote with their pocketbook to hold unions accountable and make decisions based on the shop-floor instead of politics."

Michigan lawmakers have tried to inoculate the legislation from previous legal challenges. The senate bill, for example, states that the law applies "to the maximum extent that the state constitution of 1963, the United States Constitution, and federal law permit," language designed to avoid Oklahoma’s hang-ups. Wright said such provisions would do little to deter organized labor.

"I expect many challenges using many different theories," Wright said.

Poulos says that labor groups have certain advantages against state governments in federal court, comparing labor reforms with local gun restrictions that have been struck down by higher courts.

"Generally speaking, the courts have become more friendly in ruling against states that overreach with legislation," he said. "The Supreme Court has said that states cannot overreach and step in the way of individuals exercising their Second Amendment rights; we believe they will do the same here with their labor rights."

Wright is confident that the law will pass constitutional muster with Republicans outnumbering Democrats on Michigan’s State Supreme Court four to three.

"The laws are well drafted and I expect that they’ve incorporated the previous legal challenges … [supporters] have done as much as they can to avoid legal challenges," he said. "Michigan is perceived to have a conservative supreme court and it will act and uphold laws that should be upheld."

Keating agrees, though he worries about what Michigan’s move will mean for Oklahoma’s business prospects.

"As an Oklahoman, I hate to see states like Wisconsin and Michigan and Indiana pass right-to-work because that’s going to take away the advantages that states like Oklahoma have in attracting business," Keating said.