In UAW v. Green, No. 147700, the Michigan Supreme Court upheld the constitutionality of 2012 PA 349, the portion of Michigan’s controversial Right to Work laws which prohibits a public employer from requiring its employees to join a union or pay union dues, fees, or other expenses as a condition of obtaining or continuing public employment. In a 4-3 decision, The Court held that the Civil Service Commission’s power to regulate the conditions of employment through collective bargaining agreements did not encompass the specific authority to tax or to appropriate funds. Consequently, the Commission could not authorize governmental units to impose mandatory agency-shop fees on civil servants. Justices Kelly, McCormack, and Bernstein dissented.
Civil Service Commission rule 6-7.2 allows public collective bargaining agreements that require collection of a mandatory service fee, known as an “agency shop fee” from union-eligible employees who opt out of union membership. However, 2012 PA 349 purports to make these mandatory agency shop fees illegal. Various unions brought an action in the Court of Appeals against members of the Michigan Employment Relations Commission, the Governor, and the Attorney General, seeking a declaratory judgment that portions of 2012 PA 349 prohibiting public employers from requiring their employees to join a union or pay union-related expenses violated the state constitution with respect to employees in the classified state civil service. In a split decision, the Court of Appeals held that the challenged portions of the Act were constitutional, and the Supreme Court granted plaintiffs’ application for leave to appeal.
The MSC concluded that the Commission may choose to exercise its constitutional duties through public collective bargaining, but it may not require civil servants to fund the commission’s own administrative operations, i.e. collective bargaining, through agency-shop fees. The Court reasoned that the authority to compel entities to subsidize the Commission’s operations is one of taxation and appropriation, it is fundamentally legislative in character and not within the authority granted to the commission under the Constitution. Therefore, the Court affirmed the judgment of the Court of Appeals, albeit on different grounds.
Justice Kelly, joined by Justices McCormack and Bernstein, dissented and would have reversed the Court of Appeals. The dissent would have upheld the authority of the Commission to promulgate Civil Service Rule 6-7.2 as part of its power to regulate all conditions of employment in the classified civil service and to determine the qualifications of all candidates for positions in the classified service under the Michigan Constitution.
