The incorporated right to work (hereafter RTW) movement has scored a victory in Michigan. On the heels of the 2012 election, during a lame duck session in which house Republicans held a 64 to 46 advantage over Democrats, the Michigan legislature passed two bills; one to enact RTW for public sector unions and the other for private sector unions. The private sector bill passed 58 to 52, with no votes from Democrats, and was quickly signed into law by Governor Rick Snyder without any formal public discussion or debate. Nefariously, the law was attached to an appropriations bill, which by Michigan law prevents opponents from taking the issue to a popular referendum.
This effectively means RTW will be central to the partisan dialogue leading up to the 2014 elections, when organised labour will try to “reward friends and punish enemies” at the ballot box in a repeal effort. To appreciate why RTW is controversial – why labour opposes RTW and corporate activists spend lavishly to pass RTW – one must understand the legal distinction between “bargaining unit member” and “union member” in US labour law. The two classifications are not equivalent and persons in the bargaining unit are not compelled to be union members. In the US, to simplify labour-management relations and limit union raiding, labour unions have the exclusive right to negotiate on behalf of the bargaining unit members they organise. Unions do not, however, determine bargaining unit composition. The National Labor Relations Board (NLRB), or similar agency at the state level holds final judgment over bargaining unit membership, where determination is based on “community of interest” criteria; for example similar skills, proximity, management oversight, and so forth. At any given workplace, if a job matches those criteria, the person holding that job becomes part of the bargaining unit, regardless of how that individual may feel about unionisation. Then, if a majority of workers in the prospective bargaining unit unionise (usually through an NLRB supervised election), the new organisation must represent all fairly and without prejudice. This “50% plus 1” method of determining union coverage nearly guarantees the presence of a minority group opposing unionisation. Further, often a person gains union coverage by accepting employment at a worksite that is already unionised, without ever having the opportunity to vote for or against unionisation, and these individuals might also oppose unionisation. Once a bargaining unit is organised, unions cannot deny representation services to persons in the unit who do not want to be union members; discriminatory behaviour is discouraged by civil lawsuits under duty of fair representation provisions. Thus a union is obligated, for instance, to defend a non-member during a disciplinary hearing which, if the case goes to arbitration, might cost the union tens of thousands of dollars. Bargaining unit members who refrain from becoming union members lose some rights, for example they cannot vote in union leadership elections or run for union office, but they obtain all the benefits and protections in the labour-management contract.
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