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

It’s been just a month since Michigan voters defeated Proposal 1, which (if passed) would have amended the state constitution to permanently protect unions’ rights. And the legislature and governor wasted no time at all, approving legislation on Tuesday that officially makes Michigan the 24th right-to-work state in the nation—an astounding turn of events in this former bastion of collective bargaining. So what does this mean for teacher unions?

Michigan teachers will still have the right to organize, unionize and bargain collectively. Contrary to popular misconception, collective-bargaining rights are not directly affected by right-to-work laws. What such laws do is give individual employees the freedom to join or not join the union—and bar the union from collecting involuntary dues from those who opt not to join.

In Fordham’s recent study, How Strong are U.S. Teacher Unions: A State-by-State Comparison, we identify and distinguish several different sources of union strength—and three main ways that one could limit said strength if one were so inclined.

1. Collective bargaining rights dictate whether employers must, may, or cannot recognize an employee organization as a union. In Michigan—as in thirty other states—if employees want to negotiate a binding contract (a.k.a., 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.) Michigan’s new law won’t change its status as a collective-bargaining state.

2. Laws that determine the scope of bargaining control what must, may, or cannot be part of any binding contract. That scope, as it applies to Michigan’s teachers, was drastically limited in July 2011 when the 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 other items and topics: 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 now narrower than in 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.

3. Right-to-work laws stipulate that no union can require membership as a condition of employment. A state that requires collective bargaining can also be right-to-work—like Michigan, as of yesterday (or Florida). These laws also stipulate that the union cannot charge involuntary agency fees in lieu of membership dues to individual employees who opt not to join it. Unions argue that such fees are important because they cover union operating costs and that, even if Mr. Smith chooses 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 its members). But reformers counter that unions take a very liberal interpretation of “operating costs,” using them not only 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.)

What will this mean for 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 make him pay fees to it anyway. It also means that the state-level Michigan Education Association won’t see any of Mr. Smith’s money.

Between 2011’s Public Act 103 and this week’s measure, Michigan’s teacher unions have been hit with a one-two punch. The former gives administrators and boards greater latitude by limiting the scope of bargaining; the latter is likely to weaken the unions politically, financially, and organizationally.

But don’t think for a minute that they’ve been 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 that were followed by last month’s union-spearheaded defeat of State Superintendent Tony Bennett. But it is a start to ensuring that unions confine their work to teachers in the schoolhouse, not big-money politics at the statehouse.

A version of this article originally appeared in Fordham’s Flypaper blog.

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