How Big Labor Plans to Fight Michigan's Right-to-Work Law

Labor unions weigh their options in the courtroom and at the ballot box.

It seemed to happen in a flash. A cradle of the U.S. labor movement became the 24th state to adopt right-to-work laws, when Republican Governor Rick Snyder of Michigan signed legislation last week banning mandatory union dues.

The unions barely had time to muster one big protest in the state capital after the Republican-controlled Legislature approved the bills last week. Today they are preparing for a long war to recover from this huge blow to their power.

Labor has two options now that its ability to extract mandatory dues from workers as a condition for employment is gone. It can fight the law or try to persuade workers to voluntarily pay up.

Union bosses aren't accustomed to the second approach, so until the next elections in 2014 they can be expected to try everything to overturn the law and to stop the right-to-work fever from spreading to neighboring states.

Legal analysts say labor's first tactic will be to obtain a court injunction to stop the law from being carried out on grounds that its exemption for public-safety workers—firefighters and police officers—violates the U.S. Constitution's equal-protection guarantees. Unions have managed to persuade a Wisconsin judge to rule against a similar law by Republican Governor Scott Walker that ended mandatory dues deductions from the paychecks of public employees. The ruling is widely expected to be overturned on appeal.

Patrick Wright, the director of legal studies at the Mackinac Center for Public Policy, a free-market research group based in Michigan, says the equal-protection argument is unlikely to prevail because the alleged violations don't involve race or gender. A right-to-work law has to meet only "rational scrutiny"—not strict scrutiny—to be legally acceptable. This means the defendants—the governor and the Legislature—would merely have to offer some valid reasons, such as the law's economic upside for the state, for the law to be upheld.

Nor is a Wisconsin-style recall of Snyder and other Republican legislators likely to yield results. In Michigan, recall elections only unseat incumbents—not replace them with an opponent. That requires a separate special election, making it harder for unions to persuade voters to go along. Even if unions succeed in convincing them, the current lieutenant governor—who is an even bigger foe of labor than the governor—would replace Snyder until the special election.

So it makes more sense for unions to hold their fire and try to defeat the Republicans in 2014. Snyder, however, is a popular governor who has restored balance to the state budget while unemployment has dropped. Barring some unforeseen circumstance, he will be a formidable opponent.

In Ohio, unions managed to scrap an anti-labor law through a referendum. Under that process, all they had to do was obtain the requisite number of signatures for the law to be automatically suspended, pending a vote, which went in their favor. But this option is not available in Michigan because the new law is appended to an appropriations bill and is therefore referendum-proof.

That means unions will have to choose between an initiative or a constitutional amendment. Neither blocks the law from remaining on the books until voters go back to the polls in 2014. The initiative is the more likely route because it would require backers to gather signatures equal to only 8 percent of the votes cast in the last election to qualify for the ballot. The unions would be taking a small risk that the initiative would be overturned by a three-quarters vote of the Legislature. By contrast, a constitutional amendment would require them to gather 10 percent of the votes cast, though lawmakers couldn't touch it if it passed.

Once on the ballot, can such an initiative pass in Michigan?

The state's voters overwhelmingly defeated a measure last month that would have made it unconstitutional for Michigan to ever become a right-to-work state. The 15-point margin in that victory was what emboldened Republicans to push for right-to-work laws in the Legislature.  One poll showed that Michigan voters favored the right-to-work bills by 51 percent to 41 percent. (Even 40 percent of union households supported the law as did 63 percent of young voters.)

This gap may only widen as the law goes into effect without producing the economic Armageddon for Michigan's middle-class families that unions are predicting.

The law might even strengthen the economy, by drawing business from surrounding states where unions still have the right to collect mandatory dues. A study by the pro-right-to-work National Institute for Labor Relations recently found that 70 percent of all job growth in the last decade or so had occurred in households in right-to-work states. If that is the case, right to work will stick in Michigan and there isn't much big labor can do about it.

A version of this column originally appeared in Bloomberg View.