WSJ Gets it Wrong on Michigan Homecare (and Harris v. Quinn)

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

The Wall Street Journal’s editorial page today implies that SEIU’s home-care membership has plummeted in Michigan because membership in the union can “no longer [be] coerced.”  The Journal’s “coercion” argument is that the drop in union membership levels is attributable to Michigan’s 2012 right-to-work law.  The argument is misleading, to put it politely.

Some of the facts relied on in the editorial are correct.  In 2005, home care workers in Michigan were granted the legal right to unionize and collectively bargain, and in an election conducted by the state Employment Relations board, a large majority of those workers who voted (about 7,000 out of 8,000) voted to unionize.  Under principles of majority rule, this election made the union the bargaining representative of Michigan’s home-care workers.  At this point, Michigan law imposed on the union a statutory obligation to represent all the home-care workers in the bargaining unit.  This obligation extended to the workers who didn’t vote in the election, and even to the workers who voted against the union.  With the obligation to represent all workers in the unit, the union gained the right to collect dues from the workers the union had to represent.

When the WSJ says that the Michigan home-care workers’ membership in the union was “coerced” what they mean is that the union had a legal right to collect dues from all the workers in the bargaining unit: that anyone who wanted to be a home-care worker in the Michigan program had to pay dues to the union.  The implication of today’s editorial is that when Michigan took away the union’s right to collect these dues – which the state did with its 2012 right-to-work law – this legal change caused union membership to plummet.  That’s why the Journal draws a connection to Harris v. Quinn, a case that involves a challenge to the Illinois law that allows unions to collect dues from all the home-care workers they represent.

The problem with the Journal’s argument is that, in addition to the right-to-work statute, Michigan (as the editorial notes) passed another law in 2012: this law entirely revoked home-care workers’ legal right to collectively bargain through unions.  After this 2012 law, home-care workers simply had no reason to remain members of the union because the union lost its legal ability to represent the workers in collective bargaining.  From this perspective, it’s impressive that any home-care workers have decided to remain with SEIU, even though the state has taken away the union’s bargaining rights.

It might well be that right-to-work laws lead to declines in the amount of dues unions collect.  But the Michigan home-care developments don’t show this.  What they show is that when a state makes it illegal for home-care workers to collectively bargain through unions fewer home-care workers try to collectively bargain through unions.

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