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Supreme ruling clears way for public right to work

August 4, 2015

Organized labor’s arguably best chance to chip away at the state’s Right to Work law for public employees was crushed Wednesday by a Michigan Supreme Court decision that upheld the Legislature’s authority to relieve state employees who’ve opted out of a union from paying a mandatory “agency shop fee.”

The 4-3 ruling was quickly celebrated by the Mackinac Center of Public Policy, the Michigan Freedom Fund and the Michigan Republican Party as a win for freedom in the workplace, but decried by employee unions as a neutering of Civil Service Commission and the collective bargaining process. 

Tom TYLUTKI, president of the Michigan Corrections Organization, said he felt the decision and the companion decision regarding the upholding of the 2011 retirement changes “was disheartening.” 

“I think this reeks of politics pretty heavily and we will be making our members very aware over who they vote for and what they stand for,” Tylutki said. 

Chief Justice Robert YOUNG, Jr., Justice Stephen MARKMAN, Justice Brian ZAHRA and Justice DavidVIVIANO signed the opinion. Viviano is the only Supreme Court justice to be up for re-election in November 2016. 

Wednesday’s decision sparked a public statement from Michigan Republican Party Chair Ronna RomneyMcDANIEL, who said she was thrilled that the “Freedom To Work” law was upheld. 

“Our workers should have the right to decide whether or not they want to join a union and should not be penalized for making that choice,” McDaniel said. 

Organized labor filed several lawsuits in response to the December 2012 passage of the Right to Work laws. The one addressed today — UAW v. Nino GREEN — was viewed by those in the labor movement as having the best chance of success in the state court. 

It dealt with the constitutional autonomy of the Michigan Civil Service Commission to managed the conditions of state employment, which prior courts had upheld. 

Technically, state of Michigan employees were not compelled to join a labor union even before Gov. Rick SNYDER signed the Michigan’s Right to Work laws Dec. 2012. The question before the court was whether the Legislature could relieve non-represented state employees from paying what are known as “agency shop fees.” 

Civil Service Commission rules require these service fees as a way to reimburse labor unions for the costs of collective bargaining arguably better wages and conditions for employees. The unions have negotiated various agreements that allow these fees to cover the employees for whom they represent. 

The public Right to Work law made these mandatory agency shop fees illegal, making the question of the legality of a public Right to Work law moot. 

The majority ruled the drafters of the Constitution didn’t give the CSC the power to require civil servants to give money from their paychecks to subsidize the commission’s exercise of its constitutional duties and responsibilities. 

The dissent, written by Justice Mary Beth KELLY and signed by Justices Bridget MCCORMACK and Richard BERNSTEIN, concludes courts have consistently held that the CSC has the power to make “rules and regulations covering all personnel transactions.” 

Kelly also wrote the fees in question go to the bargaining unit as opposed to the commission itself, shooting down the majority’s point that the CSC can’t assess fees on state employees to cover their costs. 

The majority responded that she missed their point, that the fee flows through the commission, which allowed for the benefit of collective bargaining in the first place. 

Ken MOORE, president of the Michigan State Employees Association, said the Supreme Court’s decision reinforces the legislature’s systematic chipping away of collective bargaining rights, which impacts all workers. 

“Ultimately, all taxpayers in the state of Michigan have been slammed on their fair wages and benefits,” Moore said. 

Patrick WRIGHT, vice president for legal affairs at the Mackinac Center, said the UAW’s lawsuit was an attempt to take away the rights of certain workers and force union payments on them. 

The court majority ruled correctly that state employee unions have illegally been receiving agency fees from state employees sine the adoption of the 1963 Constitution, Wright said. 

According to data from the U.S. Bureau of Labor Statistics, union membership has dropped from 16.3 percent in 2013 to 14.5 percent in 2014, the third largest drop in any state in the nation. Union membership nationally fell only .2 percent in 2014.

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