A primer on right-to-work and collective bargaining in education

Union protest
What does right-to-work mean for teacher unions?
Photo from the Washington Post.

It’s been merely a month since Michigan voters defeated Proposal 1; if passed, it would have amended the state constitution to permanently protect the unions’ right to collect agency fees. And the state legislature wasted no time at all, approving legislation yesterday that officially makes Michigan the 24th right-to-work state in the nation—an astounding turn of events in a former bastion of collective bargaining.  So what does this mean for teacher unions?

First off, Michigan teachers will still have the right to unionize and bargain collectively. Contrary to popular misconception, collective-bargaining rights and right-to-work laws are not the same thing. In a nutshell, there are three important parts of public-sector labor law: First, collective bargaining rights dictate whether employers must, may, or cannot recognize an employee organization as a union. Teachers are always free to organize no matter in which state they teach, but in Michigan—as in thirty other states—if employees want to negotiate a binding contract (also called a collective-bargaining agreement, or CBA) with their employer, the employer must recognize them as a union and enter into a CBA. (Fourteen states leave the decision up to the district, and five states prohibit collective bargaining in education.) The new law in Michigan won’t change Michigan’s status as a collective-bargaining state.

Nor will it change the second part of collective bargaining: the laws that determine the scope of bargaining (the provisions that must, may, or cannot be a part of any binding contract). That scope, as it applied to teachers, was drastically limited in July 2011 when the Michigan legislature passed Public Act 103, stipulating that base wages, hours of employment, and terms and conditions of employment (things like teacher leave, class size, and extracurricular duties) must be bargained. But it also explicitly prohibited a number of items—unions cannot negotiate over teacher evaluations, discipline procedures, dismissals, layoffs, performance pay, and transfers and reassignments, nor can they bargain over the length of the school year. The scope of bargaining in Michigan is narrower than all but two other states. In short, Michigan’s school districts must negotiate with their local union, but what they can negotiate over is already narrow.

Which brings us to the third part of public sector labor law—right-to-work status.  Right-to-work laws stipulate that no union can require membership as a condition for employment. A state that requires collective bargaining can also be right-to-work, like Michigan as of yesterday. These laws also dictate that should employees choose not to be members, the union cannot charge them involuntary agency fees in lieu of membership dues.  Unions argue that agency fees are important because they cover union operating costs, and even though Mr. Smith might choose not to be a union member, he still benefits from the services that the union provides (for example, the union negotiates salaries and benefits for all teachers in a unionized district, not just the union members). But reformers counter that unions take a very liberal interpretation of “operating costs,” using them just for operations but for political purposes like advocacy and lobbying too. (This is a gray area that has seen a lot of attention lately in states like California and Alabama.)

Teacher union report
For more on teacher unions, check out this report.

What will this look like in Michigan? Say Mr. Smith teaches in Ann Arbor. With the new law, if he decides that he doesn’t want to join the Ann Arbor Education Association, the AAEA can’t charge him agency fees in lieu of membership dues. It also means that the state-level Michigan Education Association doesn’t see any of Mr. Smith’s money, either.

And now the critical question: What’s the big deal?

In How Strong are U.S. Teacher Unions: A State-by-State Comparison, we at Fordham argue that there are a number of sources of union strength. And short of changing collective-bargaining rights (laws that are nearly impossible to alter), there are two other major paths to limiting that strength: narrowing the scope of collective bargaining and prohibiting agency fees.  And between Public Act 103 and the new right-to-work law, teacher unions in Michigan just got hit with a one-two combination punch.

This is not to say, however, that the unions are knocked out of the game. Take fellow rust-belt state Indiana, which recently passed right-to-work legislation and drastically narrowed unions’ scope of bargaining…changes which were followed by the disheartening, union-spearheaded defeat of State Superintendent Tony Bennett last month. But it is a start towards ensuring that unions limit their work to teachers in the schoolhouse, not big-money politics at the statehouse.

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