Justices drill UAW attorney in right-to-work case
Lansing — Republican-backed Supreme Court justices drilled a labor union attorney during a hearing Tuesday over whether Michigan’s two-year-old right-to-work law applies to state workers.
In challenging the landmark labor law, an attorney for the United Auto Workers argued before the high court Tuesday that the Michigan Civil Service Commission should still have the power to force state employees to pay a union a fee to maintain collective bargaining agreements.
“It’s pretty clear that the framers ... thought that the commission would regulate collective bargaining,” UAW attorney Bill Wertheimer said.
Shortly before the right-to-work law took effect in March 2013, the UAW sued to challenge whether the law applies to some 35,000 state workers whose wages and working conditions are set by the constitutionally autonomous Civil Service Commission.
But justices on the high court’s 5-2 conservative majority questioned whether the commission ever had authority under the 1963 state constitution to regulate collective bargaining and conditions of employment, such as compulsory union fees.
Chief Justice Robert Young Jr. and Justice Brian Zahra both noted there were not established public-sector unions representing state employees in 1963. Unions did not take root in state government until the 1980s, according to an attorney for the Michigan Chamber of Commerce.
“They certainly didn’t envision public unions and they didn’t envision agency fees,” Zahra said of the 1963 constitutional framers.
UAW attorneys contend the Civil Service Commission should have the “exclusive authority” to continue collecting agency fees from union-eligible employees in future contracts — a condition of employment that the Republican-controlled Legislature sought to ban through the right-to-work law.
The Michigan Court of Appeals sided with Gov. Rick Snyder and lawmakers, ruling that the law does apply to workers covered by the Civil Service Commission’s jurisdiction.
Tuesday’s hearing marks the first time the justices heard a legal challenge to the controversial law, which banned provisions in union contracts requiring employees to contribute fees to unions that represent them.
The Legislature specifically exempted the Michigan State Police and municipal police officers and firefighters from the right-to-work law. The state police have constitutional collective bargaining rights, while other public sector workers do not.
Attorney General Bill Schuette has argued that only the Legislature, not the commission, has power over the “conditions of employment” for state workers.
“The Civil Service Commission is not a fourth branch of government,” Assistant Solicitor General Ann Sherman told the justices Tuesday.
An attorney who argued before the Supreme Court Tuesday on behalf of the Michigan Chamber of Commerce said the union’s interpretation of the law could be construed to mean the Civil Service Commission doesn’t have to follow other state laws barring workplace discrimination and governing safety conditions.
“If the Legislature enacted a minimum wage law that would apply to all workers, the Civil Service Commission would be foolish to claim it doesn’t apply to them,” said John Bursch, an attorney at the law firm Warner, Norcross & Judd and a former state solicitor general.
In a conference call with reporters, Bursch said the justices’ line of questioning could spell trouble for the power of the traditionally union-friendly Civil Service Commission, a bipartisan four-member body appointed by the governor.
“They can rule on the narrower grounds that the Legislature had the power to enact freedom-to-work,” Bursch said. “But if I was on the other side and an advocate of collective bargaining, I’d be a little nervous right now.”
UAW President Dennis Williams issued a statement Tuesday expressing confidence that the constitution is on the labor union’s side in this legal battle.
“We are confident that the Michigan Constitution will prevail over politics,” Williams said.
UAW Local 6000 is the largest single state employee union, representing about 17,000 state workers across all departments.
Also on Tuesday, the justices heard oral arguments in another legal challenge state unions brought against a 2011 law that required 18,000 state employees hired before 1997 to contribute 4 percent of their pay to the pensions or switch to the state’s 401(k) defined contribution plan.
The Supreme Court this week is holdings its first oral arguments of the new year. Tuesday’s right-to-work hearing marked the first time new Justice Richard Bernstein was on the bench. He replaced long-time Justice Michael Cavanagh, who had to retire last year because of age limits.
Bernstein, who is blind, was guided into the Supreme Court’s chamber to his seat on the opposite end of the justices’ entrance by Justice Bridget Mary McCormack. Bernstein and McCormack are the court’s only Democratic-nominated justices.
At the start of Tuesday’s hearing, Young welcomed Bernstein to the court and then quipped: “He passed his first test with the instruction to his seat.”
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