6 things to know about Proposal 2; Collective bargaining

Oct 9, 2012

Michigan voters are faced with a choice:

Should the right to collective bargaining for all Michigan workers be enshrined in the Michigan Constitution?

The amendment would affect the rights of workers in private companies and workers in the public sector.

If you work for a private company, the right to collectively bargain is upheld by federal law (the National Labor Relations Act). But the NLRA does not cover government workers.

The rights of state and local government workers in Michigan (such as secretaries, teachers, social workers, doctors, nurses, probation officers, etc.) are dictated by state law (Public Employment Relations Act).

Movement for an amendment

The call for this constitutional amendment is a reaction to state laws and rhetoric seen as anti-union.

Republicans in the Michigan Legislature have said they want to pass "right-to-work" laws. 

Right-to-work laws affect private company workers.

These state laws ban contracts that compel employees to join a union, or that compel them to pay fees to that union.

Without some type of compulsory payment or membership requirements, unions lose their power.

Those opposing these kinds of measures call them "right-to-work-for-less" laws.

23 states in the U.S. have some type of right-to-work laws on the books.

Indiana was the latest to join the list last February.

That event, the anti-union talk from the Governors in Ohio and Wisconsin, and the "anti-union laws" and talk in the Michigan Legislature rattled union supporters.

Organizers in Michigan supporting Proposal 2 want to make sure that Michigan doesn't become the next "right-to-work" state.

But this proposal goes beyond that. It would also have a huge impact on public sector employees.

Six things to know

These “six things to know” are based on the analysis by the Citizens Research Council of Michigan.

The CRC is a non-partisan, independent, non-profit public policy research group.

If the proposal passes: 

1) So called “right-to-work” laws could not be passed in Michigan

If voters approve Proposal 2, laws severely restricting how unions operate in Michigan (right-to-work laws) would be at cross purposes with the newly amended Michigan Constitution.

It would effectively prevent such laws from being passed.

Republicans controlling the state legislature have stated that "right to work" legislation is something they want.

Republican Governor Rick Snyder has said he believes the issue is too divisive and is not a part of his agenda. If the legislature passes a right-to-work law, the Governor has not said whether he will veto it.

2) Public sector employees could bargain on more issues, old laws superseded

In Michigan, state workers can collectively bargain within the constraints of state law (PERA).

If the proposal passes, those constraints would be lifted.

The proposed amendment states “no existing or future law of the State or its political subdivisions shall impair, restrict or limit the negotiation and enforcement of any collectively bargained agreement with a public or private employer…”

The Citizens Research Council writes:

Proposal 2012-02 would allow parties engaged in public sector collective bargaining (employees and governmental employers) to argue that the right to collective bargaining supersedes all laws that can be judged to abridge, impair, restrict, or limit the rights of public employees to organize for the purpose of collective bargaining... In essence, public sector employees and employers could bring any issue up for negotiation.

3) The state could still prohibit public employees from striking

The amendment would uphold the state law that bars public employees from striking.

From the proposed amendment:

No existing or future law of the State or its political subdivisions shall abridge, impair or limit the foregoing

rights; provided that the State may prohibit or restrict strikes by employees of the State and its political subdivisions.

4) There would be conflicts in the Michigan Constitution, lawsuits would follow

The CRC’s Eric Lupher said there would be “many, many, many lawsuits” if this proposal passes.

The amendment would conflict directly with other parts of the Michigan Constitution.

Lupher said there at two big conflicts (from the Legislative Branch section of the Michigan Constitution):

  • Article IV, Section 48: The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.
  • Aricle IV Section 49: The legislature may enact laws relative to the hours and conditions of employment.

Lupher said the courts have given Article IV section 49 preeminent status.

Courts have looked to Article IV section 49 when determining how state and local governments interact with employees.

“Well now we’re going to have a new section that would seem to be contrary to this. Will the courts continue to say that section 49 is the most important? Or will the fact that the voters have just spoken give greater weight to that section? It’s going to be very interesting and a lot of lawyers are going of have a lot of fun trying to sort all that out,” said Lupher.

5) “Home rule” could be restored to cities, villages, counties, and institutions

Michigan is a “home rule” state.

That means cities, counties, and other local municipalities are able to pass laws as they see fit within the confines of state and federal constitutions.

Over the years, there have been laws passed and court cases decided that can be seen to infringe on home rule.

If proposal 2 passes, and it supersedes other state laws bounding how local governments operate, cities, villages, counties, and some higher education institutions could have more autonomy.

From the CRC report:

That the proposed amendment has the potential to neuter or repeal PERA and other state enacted laws that affect employment is not necessarily a negative….A constitutional amendment that abrogates Section 48 and neutralizes or repeals PERA would restore the authority and autonomy that the drafters of the 1963 Constitution seemingly intended to provide to those entities.

6) If revenues continue to decline, services could be cut or moved to private contractors

One of the big reasons we’ve been seeing conflicts arising with public sector unions and governments is because of shrinking revenues.

In its report, the CRC argues that if it passes, Proposal 2 could increase government costs “because large percentages of government costs relate to personnel.”

In a period of declining revenues, the increased costs that could result from this proposal could well have the perverse effect of increasing pressure on state and local governments [sic] officials to cease provision of some services or move work to lower cost private sector providers.

Now what?

How you vote on this proposal will largely depend on how you view unions and whether you think this is the best approach for protecting collective bargaining.

As the CRC's Eric Lupher points out, Michigan has been a cradle of collective bargaining with its manufacturing history.

So you could ask yourself, will collective bargaining rights disappear without this proposed constitutional amendment?

"I don’t think that on November 7th if this proposed constitutional amendment is defeated, I don’t think that cities are going to be saying to their unions, ‘that’s it you’re done, we’re not going to negotiate with you anymore,’" said Lupher.

"State laws will still apply requiring those sorts of things. We will still have the right for private sector workers to unionize, again those are provided in national law.

It’s not a question of whether Michigan should continue to have unions or not, they’re going to be here, and they’re going to be an important part of our economy.

It’s a question of whether they should be provided for in the Constitution or not," said Lupher.

* Clarification - with regard to right-to-work laws, an earlier version of this story stated "But it's also something Republican Governor Rick Snyder says he is opposed to, saying right-to-work laws are too divisive." Gov. Snyder has not expressly said he's opposed to right-to-work laws, only that they're too divisive and they are not a part of his agenda. We changed the copy above to better reflect his position.