On December 11, 2012, the Governor signed 2012 PA 349, which has been commonly referred to as the public sector right to work law. (There is a separate right to work law which applies to the private sector, 2012 PA 348, which will not be addressed here.) The law will take effect on March 28, 2013. However, police and firefighters are excluded from 2012 PA 349.

Before Enactment of 2012 PA 349

Historically, most unions and public employers have agreed to union security clauses in collective bargaining agreements, which means that as a condition of employment employees would financially support the union by either (1) becoming a member of the union and paying union dues within a specified amount of time of becoming employed; or, (2) not joining the union and paying an agency or representation fee to the union (in some rare cases, such clauses also may have required, in lieu of paying the union, the employee making a corresponding charitable contribution). Generally, pursuant to these union security clauses in collective bargaining agreements, employees who failed or refused to so financially support the union would be subject to discharge. All unit employees would be represented by the union as the exclusive bargaining agent and would be bound by the collective bargaining agreement negotiated between the employer and union.

Requirements Under 2012 PA 349

Under 2012 PA 349, unless there is a collective bargaining agreement in place prior to March 28, 2013, which requires employees as a condition of employment to financially support a union, public employees (with the exception of police and firefighters) can no longer be compelled to join a union, or pay dues or an agency fee to a union, or be required to make a corresponding charitable contribution, nor can the employee be fired if he or she does not join the union or does not agree to financially support the union. Similarly, for collective bargaining agreements entered on or after March 28, 2013, it would be illegal for a public employer to agree to a provision in a collective bargaining agreement which requires, as a condition of employment, a public employee to be a member of the union or to otherwise financially support the union (or to make a charitable contribution in lieu of such dues or fees).

Union security provisions in a collective bargaining agreement entered into prior to March 28, 2013, remain in full force and affect until such agreements expire, even if those union security provisions require the employees to financially support the union as a condition of employment.

Even under the new law, bargaining unit employees (even if they choose not to financially support the union) remain represented by the union and remain bound by any terms and conditions of collective bargaining agreements. The fact that an employee does not financially support the union does not mean that the employer and employee are now free to directly negotiate with each other over wages or other terms and conditions of employment – that remains the role of the union as the exclusive bargaining representative of unit employees. Thus, the differences can be summarized by the following chart:

Counties’ counsel/human relations specialists should review their current collective bargaining agreements entered into prior to March 28, 2013. If there are union security provisions which require employees, as a condition of employment, to financially support the union, such provisions remain enforceable until such contract expires (even if that is after March 28, 2013).

Police and firefighter unions are exempt from the law. Thus, there is no change for such employees. However, counties should note that often units which contain police employees also include non-police employees (such as 9-1-1 dispatchers and support staff). In negotiating new collective bargaining agreements with such “mixed” units, counties should carefully assure that the non-police or non-firefighter employees of such “mixed” units are distinguished in any union security provisions so that 2012 PA 349 is fully adhered to.

Parties to collective bargaining agreements with unions which have expired or will expire before March 28, 2013, remain free to enter into new collective bargaining agreements which may contain union security provisions which may require unit employees to financially support the union as a condition of continued employment so long as the agreement is ratified by the union(s) and employer prior to the new law taking effect.

For collective bargaining agreements which are entered into on or after March 28, 2013 (except for those with police or firefighters), counties are now legally forbidden from including union security provisions or other provisions which require, as a condition of continued employment, a public employee to financially support the union or make a corresponding charitable contribution. Individuals, employers and unions are subject to civil fines of $500 and potential lawsuits for violation of this Act. The decision whether or not to financially support the union now becomes a decision solely of the individual employee. However, for counties and other municipalities (unlike school districts), there does not appear to be any prohibition in the law forbidding a county from undertaking to collect dues or service fees from wages of unit employees pursuant to a voluntary authorization by the employee to permit such deductions. As such, if an employee provides a written authorization to a county to deduct union dues and fees, the law does not appear to prohibit the county from complying with such voluntary deduction. Conversely, however, if an employee provides a county notice that the employee is withdrawing his or her authorization to deduct union dues or agency fees from the employee’s paycheck, that decision must be respected and adhered to. However, once again, this does not mean that the employer and employee are now free to negotiate with such employee(s) directly over wages and conditions of employ. The union continues to be the exclusive bargaining representative for the unit employees, and the unit employees continue to be bound by, and protected by, the terms and conditions of the collective bargaining agreement between the county and the union.