Michigan Appeals Court Reminds Union Lawyers: Forced Agency Fees Impose a ‘Significant’ Burden on ‘Critical’ First Amendment Rights

Yesterday the Michigan Court of Appeals firmly rejected a bid by union officials and their lawyers to deny protection under the state’s recently adopted Right to Work law to roughly 35,000 civil service employees.

Big Labor lawyers had contended that the Right to Work law, which prohibits the extraction of forced union dues and fees as a condition of employment, could not constitutionally be applied to workers whose terms and conditions of employment are regulated by the Michigan Civil Service Commission (CSC).

However, a 2-1 majority of the judges reviewing the case, adopting a legal theory very similar to one developed by a National Right to Work Foundation attorney in a memo directed to Michigan officials with an interest in defending the law’s applicability to state civil service employees, rejected union lawyers’ claim.  As the majority opinion pointed out, civil rights statutes adopted by the Legislature to prevent workplace discrimination apply equally to civil service employees, notwithstanding the CSC’s authority under the state constitution to “regulate all conditions of employment in the classified service.”  The court then found that the Michigan Right to Work law is a civil rights statute, because it protects employees’ First Amendment rights.

Ignoring a series of U.S. Supreme Court rulings, including last year’s landmark Foundation victory in Knox v. SEIU, dissenting Judge Elizabeth Gleicher suggested that somehow forced dues and fees for unwanted union “representation” do not implicate the First Amendment.  However, the majority did not let her get away with it:

“[I]n direct opposition to the dissent’s assertion, the Supreme Court has explicitly declared that agency fees impose a ‘significant’ burden on ‘critical’ First Amendment rights. . . . That fact has been decisively established.”  

In a passage quoted by the AP account of yesterday’s Michigan ruling (see link below), the majority concluded:

“In light of the First Amendment rights at stake, the Michigan Legislature has made the policy decision to settle the matter by giving all employees the right to choose,” Judges Henry Saad and Pat Donofrio wrote, adding that legislators decided to “remove politics from public employment and to end all inquiry or debate about how public sector union fees are spent.”

The AP account reports that union lawyers are likely to petition for a Michigan Supreme Court appeal.

Court: Right-to-Work Law Applies to State Workers