Jottings By An Employer's Lawyer

Thursday, December 13, 2012

Michigan As a Right to Work State - Random Thoughts


First, somewhat as an aside, the news coverage of this issue reminds me that any time I follow an issue that is covered by the media and falls into an area where I have my own expertise, I always come away with one thought - yikes.  And then I quickly remind myself, I need to apply more skepticism to other things that the talking heads say in areas where I don't have any particular expertise.

More relevant to the topic of this blog, it would be hard to view this as anything other than a cataclysmic event for organized labor.  Unions in the private sector have been on a well documented slide for most of the time I have been practicing law, which goes back to 1975.  But suffering a loss in a state that because of the UAW and the car industry is probably most identified as a "union" state on what has always been one of labor's most, if not the most,  important issues, right to work, is a message of pending doom of a different magnitude.

The challenge for unions to re-define their message, or maybe more importantly, their mission, which has been obvious for a long time, seems like it has a much shorter time line than ever before.

Although I tend to view this from my background as lawyer who has been involved in labor and employment matters (and clearly much more employment than labor), one of the things that seems to be true is that in many ways, rather than a fight over the merits or non-merits of union representation and whether it should be encouraged or not, the underlying bigger challenge is being made because of union's role as a major force, particularly in the "ground game" of the Democratic party.

Finally, for though those who view union's decline as a good thing, I would remind of the rule of unintended consequences. Which by definition means, one never knows what is going to happen when there are such big structural changes.

Just as an example, on Morning Joe yesterday, Joe Scarborough voiced support for a concept that would surely be anathema to employers (although a real boon to my profession), member only bargaining. When some one pointed out that the union's argument against right to work was the "free rider" argument, where in a right to work state employees in a union facility get the benefits of the union's bargaining efforts without having to pay for them, he said why not let the union negotiate for it's members and they get the pay raises, and those who don't want to be members, don't. 

Although I doubt that Joe Scarborough and Charlie Morris, the former SMU labor law professor, have much in common, there could not have been a much better endorsement for Professor Morris' concept he has been pushing for some time now. See Thinking About a Different World Under the NLRA and A "New Spring" in Labor and Employment Law?

And you know that at least some on labor's side may also beginning to think how that or other different approaches might be used to frame a new argument

It will be some time before we know how this all plays out, but for those rejoicing about this latest development and what it seems to imply about organized labor's future, I am reminded of the trite but true statement, be careful what you ask for.


Comments:
What Michigan legislators did was to eliminate - as do states like Texas - from the workplace the basic concept of democracy as we have always viewed it in the nation. That basic idea is that majority rules. On the other hand, now that free riders in Michigan can take advantage of union benefits without paying for them, the logical course is to award those benefits only to union members that pay and work for the process that generates those benefits.
 
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