The Right-to-Work law controversy continues in Michigan with a new lawsuit being filed by the Mackinaw Center for Public Policy and three teachers employed in Taylor, Michigan. This lawsuit is in response to the 10-year union security agreement entered into between Taylor's teachers' union and its public school system. This agreement provides for the Taylor Federation of Teachers to be the exclusive bargaining representative of the teachers until 2023 and requires teachers to pay union dues or a service fee as a condition of their employment. Michigan's new Right-to-Work law prohibits this type of union security provision in contracts entered into or modified on or after March 28, 2013.
Taylor's new agreement is drawing rapt scrutiny because it was just enacted, appears to comply with the requirement, and therefore allows parties to enter into extended agreements that circumvent the Right-to-Work law. Unions around the state have been asking and achieving similar agreements with their school districts in exchange for significant consessions. Because Taylor is one of the first school districts enacting the new security provision, it is serving as the issue's lighting rod.
The lawsuit takes issue with the fact that the union security agreement is a separate collective bargaining agreement from the five-year agreement containing the teachers' wages, terms and conditions of employment, and working conditions. It alleges that Michigan law prevents one part of a labor agreement from extending beyond the others (Count I). It also contends that the agreement has insufficient consideration because it lists "labor peace and bargaining continuity" as the benefit (Count II). Finally, the lawsuit alleges that the union security agreement is in essence a policy that binds future school boards and this is impermissible under Michigan law (Count III).
Examining Michigan law on these points, I don't think the plaintiffs are likely to be successful on Count I because the provision they cite, M.C.L. 423.215b, prohibits wage or benefit increases after a collective bargaining agreement expires. It doesn't specifically address the issue of the continuation of a separate collective bargaining agreement for union security. I think their argument is that there can only be one agreement, not two like in Taylor, but it's a stretch to read that into the law's prohibitions.
Regarding Count II, for the consideration to be valid, there must be a mutual exchange of something of value. The plaintiffs argue that this was already guaranteed during the five years of the other CBA, so it can't be used again for this agreement. In addition, the union can't guarantee bargaining continuity for 10 years, especially because Michigan law allows for another union to be elected as bargaining representative three years after a new agreement is enacted. There is no clear answer in Michigan law for this argument. I lean towards the defendants, though, because I think labor peace and bargainining continuity could be considered valuable consideration. I do think it could be problematic for the union security contract if another union was elected during its 10 year term.
Finally, to be successful on Count III, the plaintiffs will have to prove that the union security contract is really a legislative policy that binds subsequent school boards. I think this will be hard to establish.
We will be watching closely as this lithmus test for Right-to-Work and certain circumvention strategies unfolds in court.