Michigan Right-to-Work Law: A Newly Minted Bargaining Advantage by M. Nycole Hearon

M. Nycole Hearon

In the fall of 2012, the state of Michigan, the heart of union movements, became the center of attention as Republicans and Democrats made it a hotbed of political debate centered on whether Governor Rick Snyder would sign into law newly passed right-to-work legislation.  Republicans claimed the new law, if passed, would increase economic growth and job creation. Democrats, helped along with a personal visit to Michigan by the incumbent President, claimed the law would gut the core of unions and directly attacked the working class. High drama? Definitely. It was a presidential election year; all issues had to pick a color: red or blue. Melodramatic? Maybe not. As unions in Michigan go, so go other unions in the country.

In the simplest terms, right-to-work laws prohibit unions from requiring members to pay dues.[1] Moreover, they allow non-union members to receive the benefits of the union as if they were members of that union.[2] New employees automatically become members of jobs that have union representation unless that employee chooses to opt-out of the union. If an employee who has opted out of the union needs representation in an employment dispute, the union must represent the employee. Unlike, however, the union paying member, the non-union member must pay the cost of representation out of pocket.

Michigan is the home of one of the largest and oldest unions in the nation—the United Automobile Workers (UAW), formed in Detroit in 1935.[3] The UAW represents not only autoworkers, but includes workers in the aerospace, trucking, agriculture, technical, office and professional arenas. Other “heart of America” states, such as Ohio, Indiana and Wisconsin, passed similar measures,[4] but the passage of a right-to-work law in Michigan would signal the tipping point of the union movement in the U.S.  The threat of the right-to-work legislation became a reality on December 11, 2012 when Governor Snyder signed the bill into law, making Michigan the 24th state to pass right-to-work laws.[5]

As I kept abreast of the political showdown in Michigan, I could not help but think the new law would have a greater effect at the negotiating table than it would on  economics. After all, I cut my professional teeth in a right-to-work state where unions are alive and well, wielding a lot of political power.  I well remember spending a required full day, along with my newly hired colleagues, away from the office to sit in a room for eight hours while speakers explained our pay scale and benefits. At the time, I was a law clerk with the Clark County District Attorney’s Office in Las Vegas, Nevada. I learned that my interests were represented by the newly created Prosecutor’s Union. I had no complaints.  Clark County had the reputation of being one of the highest paid counties in the United States for prosecutors and public defenders, averaging $20,000 more in wages and benefits than other counties[6], even for its law clerks. As far as I was concerned, my union was doing exemplary work. I saw no reason to opt-out of the phenomenal benefits it provided.

It was difficult for me to view Michigan’s new law as a “the sky is falling” moment. Instead, parties on both sides, the employers and the unions, should view the law as an opportunity to negotiate terms at the negotiating table—long before threats of firings and union strikes can take place. The new law should be a bargaining point for both sides.

From a negative standpoint, one could argue that unions do not have bargaining advantage because there is no incentive for employees to join the union. Why pay for quality representation when the same benefits apply free? A dearth of members leads to a weak union. Employers can take advantage of the weakness and turn it against the unions by lowering pay and benefits over time without the threat of any real backlash. On the other hand, employers also face the possibility of relitigating the same issues repeatedly because different non-union employees bring the same issues in legal actions.

Remove the political aspects of right-to-work laws and you find the two most powerful, positive commonalities that benefit both parties—money and information. Employers know that happy workers make good employees, good employees mean productive employees, and productivity leads to profit. Union representatives have their fingers on the pulse of employee sentiment. They can relay systemic problems in the work environment that call for changes in pay, benefits, work hours and physical environment. Union representatives know that employers cannot make the correct changes in the system if employers do not know what problems exist. Union representatives bargain knowledge for money and employers bargain money for information.

The unions may lose a few members with the law, but it is more likely that their numbers will remain relatively the same. Employees do not have the time to litigate matters and one employee, alone, cannot put pressure an employer to change its practices. A union can do that. A good union is similar to a class action with one face that represents all the plaintiffs. A good union can pressure an employer to address systemic problems within the company. This is the reason unions have power in states where right-to-work laws have been in place over several decades. Moreover, right-to-work laws create a check on union power abuse. A mismanaged union leads to a memberless union that must still represent employees.  

An argument can be made that labor laws already exist that benefit employees and negate the need for union representation and bargaining.  While that is true in a general sense, no law can address internal problems that stem from the particular company culture. Company culture is unique to that company and only an insider can pinpoint how to make the company its most productive. Unions can do that. Right-to-work laws create both a bargaining advantage and an impetus for the employer and the union to work together. Employers need good unions and unions need members because both parties want the highest payout possible.

Michigan, because of its history and influence, will continue to be the topic of conversation and observation concerning unions. It would be wonderful to see this “mother” state for unions, with UAW at the helm, evolve into a negotiating powerhouse that can be the leader for other unions in right-to-work states. As Michigan goes. . . .

[1]Right-to-work laws: Now Michigan Anti-union Legislation in the Home of the Car Industry, http://www.economist.com, December 52, 2012.

[2]Rick Ungar, ‘Right-to-Work’ Laws Explained, Debunked, and Demystified, http:// www.forbes.com, December 11, 2012.

[3]Right-to-work laws: Now Michigan Anti-union Legislation in the Home of the Car Industry, supra, at n 1.


[5]The other right-to-work-states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.

[6]Clark County: Prosecutors Want to Form Union, http://www.reviewjournal.com, February 1, 2005.

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