Right-to-work

While much of the initial fervor related to Michigan passing right to work legislation has subsided, a lawsuit that could collaterally challenge the law silently proceeds. As we previously reported, a lawsuit was filed under Michigan’s Open Meetings Act to challenge the process used by the Michigan’s Legislature to pass the controversial legislation. In January, the ACLU stepped in to litigate on behalf of the groups challenging the law.

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Now that Right to Work is a reality in Michigan, the State has hired a labor specialist to assist in implementing the laws, which went into effect March 28.  Travis Calderwood was hired by the Michigan Bureau of Employment Relations in February to field questions from those who want to know more about the operation of the new law. Mr. Calderwood recently gave MLive an interview answering certain common questions. Employers with additional questions can contact Mr. Calderwood through the Bureau of Employment Relations.  

See all of our previous Michigan Right to Work coverage here.

Early statistics indicate that Indiana’s passage of Right to Work legislation is already showing benefits to the state, according to the Indiana Economic Development Corporation (IEDC).

The IDEC has reported that 91 companies have told the agency that Right to Work has been a factor in their decision-making process on the location of new projects. Out of that group, the IEDC says that 64 are well along in the development process and are projected to have the potential of more than 8,390 new jobs and more than $2.7 billion in investments if they come to fruition.

The IEDC report also indicates that 39 companies have committed to new projects in the state since RTW which should produce more than 4,500 new jobs and an investment of more than $1.6 billion. Information from the IDEC can be found in the latest issue of BizVoice published by the Indiana Chamber of Commerce which is available here.

In addition, statistics recently released by the United States Bureau of Labor Statistics (BLS) indicate that the percentage of Indiana workers who are members of unions dropped from 11.3% in 2011 to 9.1% in 2012. In actual numbers, the number of union members dropped from 302,000 to 246,000.  The percentage of workers represented by unions dropped from 12.4% to 10.0%. Those numbers cover both private and public sector employees. The BLS statistics can be reviewed here. 

Nationally, the BLS annual report found that 11.3 percent of wage and salary workers were members of a union in 2012, down from 11.8 percent in 2011. The total number of workers belonging to a union also declined, down to 14.4 million from 14.8 million.

On Feb. 13, 2013, the New Hampshire House of Representatives voted down the latest right-to-work bill and thwarted yet another attempt to join the latest RTW states (Indiana and Michigan). This is the third time that this type of legislation had been defeated in the previous three years (prior two attempts were vetoed by the former Governor) in New Hampshire. It appears that the RTW in that state is losing momentum.

Elsewhere, as previously covered earlier this week on this blog, the RTW law in Michigan is under legal attack. 

A group of Michigan labor unions filed a lawsuit yesterday challenging the constitutionality of Michigan’s recently enacted Right to Work legislation. The lawsuit, filed in the U.S. District Court for the Eastern District of Michigan, challenges only the legislation affecting private employers, claiming that it violates the Supremacy Clause of the federal Constitution because private employers are regulated by federal labor law, not state law. The complaint asks for a declaratory judgment finding the Right to Work legislation invalid. 

The unions bringing the suit likely have a tough road ahead if they are to succeed in the lawsuit. As we previously covered, a lawsuit challenging Indiana’s Right to Work law under similar theories was soundly dismissed by an Indiana federal court in January, and lawsuits in other states have similarly been unsuccessful.

The lawsuit filed Monday is the second to challenge Michigan’s Right to Work law.  A previous lawsuit filed in state court claims the law should be invalidated because the way it was passed violates the state’s Open Meetings Act, citing the fact that Michigan’s Capitol Building was closed to the public due to a large number of protestors when the bills were passed on Dec. 6, 2012.  The ACLU has stepped in to represent Michigan’s labor unions in that lawsuit, which is pending in Ingham County.

The new lawsuit is Mich. State AFL-CIO et al. v. Callaghan et al., Case No. 2:13-cv-10557 (E.D. Mich.).  A copy of the complaint is available here.

See all of our previous Right to Work coverage here.

Operators Local 150 has been soundly tossed out of federal court in its effort to overturn Indiana's Right to Work Act. In a decisive 24-page opinion, Judge Philip Simon of the Northern District of Indiana examined and dismissed every challenge to the Act raised by the Operating Engineers.

The Union challenged the statute under the Contracts Clause, the Ex Post Facto Clause and the Equal Protection Clause of the U.S. Constitution. They further challenged the Act as being pre-empted by the National Labor Relations Act and finally raised issues with it under the Indiana Constitution. Simon dismissed all of the federal constitutional challenges as failing to state a claim. He dismissed the state constitutional claims without prejudice on federalism grounds under the 11th Amendment noting clear authority from the United States Supreme Court that claims against state officials under state law cannot be considered in federal court.

Simon concluded that “For better or worse, the political branches of government make policy judgments. The electorate can ultimately decide whether those judgments are sound, wise and constitute good governance, and then can express their opinions at the polls and by other means. But those are questions beyond the reach of the federal court, which instead is limited to analysis of particular legal arguments that the challenged legislation runs afoul of preemptive federal labor law or the U.S. Constitution.”

A copy of the opinion is available here.

The Associated Press has quoted Union Spokesman Ed Maher as saying that they are considering an appeal of Simon's decision.

Though the Operators’ Local 150 challenge has been dismissed, a challenge brought under the state constitution by the Steelworkers Union continues in state court in Lake County, Indiana. That case contends, among other things, that the statute violates an Indiana constitutional protection that bars demands for services from someone “without just compensation.” Judge George Parras denied the state's motion to dismiss that action last October. (You can see our discussion of that decision here.)

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

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 saw two states adopt new right to work laws: Indiana and Michigan. As a result, the concept of right to work has been prominent in the news for the first time in decades. From the recent protests in Michigan, as well as those earlier in the year, it would seem that many protesting do not understand what a right to work law does and does not do. The label “right to work” has become been so laden with the baggage of being anti-union, that few beyond labor lawyers and union officials understand what these laws are and what they do.

In the face of these misconceptions, here are 10 facts about right to work laws:

1. Right to work laws do not ban collective bargaining;
2. Right to work laws do not prohibit employees from joining unions;
3. Right to work laws do not invalidate existing collective bargaining agreements;
4. Right to work laws do not make it more difficult for unions to organize non-union workers;
5. Right to work laws do not outlaw strikes;
6. Right to work laws do not allow employers to discriminate against employees because of their union activity;
7. Right to work laws do not allow employers to fire strikers;
8. Right to work laws do not allow employers to ignore lawfully selected employee unions;
9. Right to work laws do not allow employers to cut employee pay; and
10. Right to work laws do not take away any rights from the employees as opposed to unions.

What right to work laws do is simply take away the ability of a union to force an employer to fire an employee if the employee does not want to pay the union the costs of union dues and/or initiation fees.  In non-right to work states, Federal labor law permits an exception to the discrimination provisions in the statute and permit unions to require that employers fire employees who do not pay money to the union.

Big unions hate these laws because it hurts them economically.  They cannot impose upon employees—frequently without any choice on the employees’ part—the obligation to pay the union money for the privilege of keeping their jobs.  Unions hate these laws, not because it impacts the rights of the employees, but because it hits the unions and their officials in their piggy banks.  The fewer union-dues payers, the less money there is for the unions to pay their officers and employees.  In addition, when workers choose not to join a union, they remain free of any threat of union discipline (expulsion or fines) if they choose not to follow the union’s rules.  This means the union officials have less power over the workers whose interests they are supposed to represent. 

Thus, while right to work laws make things harder for unions, there can be no doubt that they preserve rights and freedoms for individual workers. 

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)