As anticipated, the Governor signed multiple bills today repealing Michigan’s Right to Work Act. The change to Michigan law eliminates incorporation of language from the National Labor Relations Act which protected an employee’s right to choose whether or not to join a union. With this change, it is no longer illegal under Michigan law to include a union security clause in a labor agreement. A union security clause requires compulsory membership in a union or payment of dues to a union as a condition of hire or continued employment. Inclusion of such a clause remains a topic of bargaining between the parties. The new law applies to labor agreements in the private and public sector.
This law does not have immediate effect and will go into effect 90 days after the close of the state’s legislative session. If the legislative session ends in December 2023, the bills could take effect as early as March of 2024. However, it is possible that the Legislature could adjourn even earlier and that would move up the effective date. Varnum continues to monitor this issue and will update as needed.
What Should Michigan Unionized Employers Expect?
1. Request to Bargain
Employers with a unionized workforce should anticipate and prepare for a union request to bargain in order to include a union security clause in existing labor agreements. Employers should review any labor agreements to which they are a party to determine if the labor agreement contains a conditional union security clause in the event of a change to Michigan’s Right to Work Act and consult with labor counsel regarding implementation of a conditional union security clause.
We also recommend consulting with labor counsel if the employer is a party to a current labor agreement that does not contain a conditional union security clause to ascertain their legal obligations, if any, to negotiate mid-contract changes. Labor contracts are not one size fits all, and a fact-specific analysis will avoid unfair labor practice charges alleging failure to engage in good faith bargaining.
Union security clauses should not be confused with “closed shop” clauses, which require immediate union membership as a requirement to be hired. Such clauses are unlawful under Section 8(a)(3) of the National Labor Relations Act. Unionized employers engaged in negotiation of a union security clause should consult with labor counsel to ensure the proposed union security clause does not violate the NLRA.
2. Employee Inquiries from Beck Objectors
Employers may receive questions from union members about their right to object to payment of union dues. Even under a union security agreement, employees who object to full union membership have the right to pay only the share of union dues used directly for representation, such as collective bargaining and contract administration. Generally, payment of dues is an issue between the employee and the union. Such objectors may no longer be considered full union members (subject to applicable internal union rules) but are still protected by the union contract. Unions are obligated to advise all covered employees about this option, pursuant to the Supreme Court ruling In Communications Workers of America v. Beck, 487 US 735 (1988).
Employees may also object to compulsory union membership on religious grounds in which case the employee may pay an amount equal to the union dues to a nonreligious charitable organization.
Employers should consult their labor agreements for the applicable process, if any, for collection and submission of union dues in the event of an employee objection.
Varnum’s Labor and Employment team is monitoring this issue closely and is available to provide counsel regarding bargaining obligations. Please contact your Varnum attorney if you have any questions.