While there will likely be several legal challenges to the state's new right-to-work law, there is one challenge that may have the strength to beat it.
That challenge would be centered on the argument that the law does not apply to some 35,000 unionized state employees who are covered under the Michigan Civil Service Commission. Many state employees are subject to the control of the commission, according to Varnum attorney Pat White.
“My suspicion is that this is going to be somewhat of a close call,” White said, “one of those that will have to be settled by the courts.”
White said the question is whether it’s a term or condition of employment to require payment from a union.
“Whether the collection of dues is different than the obligation to pay dues,” he said. “In other words, does the obligation to pay dues or a fee fall closer to the concept of collecting dues, which is clearly not a term or condition of employment or more closely to, ‘This is something that relates to your working conditions in this workplace?’ Nice question, great for lawyers.”
The Michigan Civil Service Commission was put into place prior to widespread unionization, and the Michigan constitution gives the MCSC power over state civil employees’ compensation and conditions.
Only a vote of the commission could enact right-to-work policies for state workers, according to a statement by the Michigan Senate Democrats.
Attorney General Bill Schuette has come forward saying that the RTW law does apply to unionized state government workers, but many others disagree with his assessment.
“I’m not sure whether this is something they thought about in any great detail before they did this, because it went through so quickly,” White said. “I’m not sure there was anything they could have done, because I’m not sure the Civil Service Commission would have necessarily agreed to this provision had it been there.
“I’m not sure they could have convinced the Civil Service Commission to sign on or necessarily been able to get around that issue without amending the Civil Service statute.”
It is likely that a legal challenge will be posed around this issue, he said.