By Gary Klotz
March 14, 2013
In late March, Michigan’s controversial right-to-work laws will take effect. Michigan will then become the 24th right-to-work state. The laws will apply to almost all private sector and public sector employees who are eligible to unionize.
What will the right-to-work laws do?
Under the right-to-work laws, a “union security” clause, which requires an employee to be a union member and to financially support the union, will become illegal. Specifically, the right-to-work laws will prohibit future collective bargaining agreements, including ones extended after March 28, 2013, from requiring an employee, as a condition of employment, either to become or remain a union member or to pay any union dues, fees, assessments, charges, or other expenses.
But any collective bargaining agreement that is in effect or is extended before March 28, 2013 will be “grandfathered” until that agreement expires after March 28, 2013. The right-to-work prohibitions will not take effect until that agreement expires. For example, if a current agreement will expire in 2015, the “union security” clause will remain in effect until the agreement’s expiration in 2015. As a result of this “grandfathering” provision, the effect of the right-to-work laws on any given collective bargaining agreement will depend on that agreement’s expiration date.
A “union security” clause and a union dues “check-off” clause are different. A “union security” clause requires union membership and financial support of the union as a condition of employment. A union dues “check-off” clause obligates an employer to deduct union dues from an employee’s paycheck, pursuant to an authorization signed by the employee, and to remit the dues directly to the union. An employee’s authorization for the deduction of union dues is a separate contract between an employee and a union.
The right-to-work laws will prohibit “union security” clauses, but not union dues “check-off” clauses. Consequently, an employee who opts out of union membership under a right-to-work law will be in the anomalous position of continuing to pay union dues, under a dues deduction authorization and a “check-off” clause, until the employee can end that authorization. The wording of that authorization and, for private sector employees, federal labor law will indicate when the authorization can be ended. Employers and employees will need to review the “check-off” authorizations to determine when that can occur.
What happens if you opt out of union membership?
An employee who, under the right-to-work law, opts out of union membership will still be part of the unionized group. That employee will be subject to the collective bargaining agreement and will continue to receive the wages, benefits, and other employment terms and conditions, including the grievance procedure, negotiated by the union. For that reason, an employer cannot grant or negotiate different wages, benefits, or other employment terms and conditions for employees who opt out of union membership. The union also will continue to have a legal duty to fairly represent all employees, including ones who opt out of union membership. Unions object to the right-to-work laws, in part, because non-union members - so-called “free riders” - receive the benefits of union representation without participating in or financially supporting the union.
By opting out of union membership, an employee will be sacrificing the right to participate in internal union matters. A union can exclude non-members from participating in internal union votes, such as, for example, to ratify a collective bargaining agreement or to elect union stewards or union officers.
While the right-to-work laws will provide unionized employees the opportunity to opt out of union membership, the percentage of unionized employees who, in fact, will opt out may be low. Peer pressure may cause employees to remain union members and to avoid the stigma of becoming “free-riders.” Employees also may perceive that remaining a union member and continuing to financially support the union are in their self-interest because of the value of the services furnished by the union.
What are the next steps for employers?
In preparation for the right-to-work laws, unionized employers should take the following actions:
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Train supervisors and managers how to answer employee questions about the right-to-work law. Training will ensure that employees receive accurate information and also will help protect the employer against claims of inappropriate or unlawful statements to employees.
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Develop a written explanation to employees about how the right-to-work law will affect them under their particular collective bargaining agreement and dues authorization forms. Educating employees about their rights will be a useful service, particularly given the need to determine both when, based on an agreement’s expiration date, the right-to-work law will apply and when an employee can end a dues deduction authorization.
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Develop an internal procedure for reviewing employee opt-outs from union membership and employee requests to end dues “check-off” authorizations
Non-unionized employers will not be directly affected by the right-to-work laws because they have no unionized employees. They may even assume that the indirect effects will be only positive: weaker, less wealthy unions and less risk of union organizing. Those assumptions may be correct.
Paradoxically, however, the right-to-work laws also may make it easier for unions to organize employees with a new, no-risk sales pitch: vote in a union and later decide whether to become a dues-paying member, depending on if the union negotiates a good contract. Private sector employers may be subject to piecemeal unionization by unions’ requests for micro bargaining units that are limited to a job classification or a department and that have been authorized by the National Labor Relations Board. Ensuring that its policies and procedures for staying union-free by creating a positive workplace are robust and effective will continue to serve as a non-unionized employer’s best defense against potential unionization, even with this new, no-risk sales pitch.
A non-unionized employer also should review its employee handbook’s policy on unionization and delete any references to compulsory union membership and compulsory financial support of a union as reasons why employees should remain union-free. Those references will be obsolete after the right-to-work laws take effect.
Gary Klotz is a labor and employment law attorney with Butzel Long, based in the firm’s Detroit office. He has represented employers in labor and employment law matters for more than 30 years. He is the author of numerous articles about labor and employment law, and he regularly speaks at management education programs about labor and employment law issues. You may contact him at [email protected].
