– Photo by Paul Janczewski
By Paul Janczewski
Legal News
Michigan became the 24th state to enact a right-to-work (RTW) law, but one attorney who is opposed to it said the full effects of it may not be truly felt for years.
One thing Kevin Carlson wants people to realize, though, is that RTW is a “misnomer.”
“We’ve got to find something else to call it,” he said.
RTW opponents have come up with several other unflattering terms to label it. Union-busting. The Back in Time Amendment. Freeloading.
“When politicians use the term RTW, it’s really a misnomer,” he said. “Because the RTW law does not give any employees, in union or non-union workplaces, any additional job security, guarantee of employment or benefits of employment, that they didn’t already have.”
Carlson, a labor employment attorney for the Royal Oak firm of Pitt McGehee Palmer Rivers & Golden, is not only passionate about his niche in this type of law, but also well versed in its particulars.
After graduating from the University of Michigan, Carlson entered Wayne State University Law School.
He participated in the Civil Rights Litigation Clinic representing Michigan prison inmates in civil rights actions in federal court, interned in the State Appellate Defender Office in Detroit, and graduated cum laude in 2004. Carlson joined Pitt McGehee in 2006 as an associate attorney after serving as a law clerk for U.S. District Judge Arthur Tarnow.
“I got into this kind of law because I don’t like bullies,” Carlson said. “I like working for the underdog. I like helping the individual get what’s fair and just.”
Born and raised in Michigan, Carlson said that his union roots run true and deep.
His father was a teacher and a member of the union.
The term RTW was coined in the early 1940s, Carlson said, before the Taft-Hartley Act was passed in 1947, which made it illegal for employers to maintain a union, or closed shop, ending forced unionization as a condition for gaining or keeping employment.
“The reason it’s important to understand that is because when the term RTW was created, it was referring to a time and place where there could be forced unionization,” Carlson said.
In 2012, when the state enacted the RTW law, Carlson said the true, original meaning of the phrase was mangled.
“A true RTW would be a guarantee of job security, or just cause employment,” he said.
Meaning, an employer cannot terminate a worker unless they have just cause related to on-the job conduct.
“Union representation is a benefit of employment,” Carlson said.
Unions have gone through hardships over the years to protect employees from unsafe work conditions, harsh treatment, and other unsavory conditions to provide a safe place to work, with adequate pay and benefits.
“And if you’re going to claim the benefits of union representation, it’s only fair you pay your fair share of what the benefits cost,” he said. “But the RTW law in Michigan makes it illegal for two consenting parties, the union and the employer, to enter into that kind of contract. And when you think of America and Michigan as a free market, and you ask yourself, ‘Why would a government that wants to keep its hands off the free market get into the business of regulating what kinds of contracts people can enter into.’ It‘s unprecedented.”
Carlson and numerous other union members were also upset about the way the law here was enacted.
Gov. Rick Snyder, after repeatedly saying he took no position on RTW, reversed course when the House and Senate entered “lame duck” sessions after the fall 2012 elections, and “almost overnight” said he would sign the bills if approved, Carlson said.
Soon, the bills were introduced, voted on and passed, without any committee hearings, public debates, or earlier promised-upon input from labor unions.
“On the day the bills were introduced and people heard it was to be discussed on floor at House and Senate, they showed up in Lansing and were met with locked and closed doors,“ he said. “The political process for passing RTW was unprecedented.”
Carlson is representing several journalists and others who were excluded from the Capitol, claiming that provisions of Michigan’s Open Meetings Act were violated.
Nevertheless, RTW was enacted and became law this past March.
Proponents of RTW argue it will bring more jobs to the state. Opponents say those jobs pay far less, forcing employees to pay more for health care benefits and weakening unions by forcing then to represent workers who are not members.
“It overstretches the resources of the union so has to do more work with fewer resources,” Carlson said.
He also doubts the claims that it will draw more businesses here.
“I have yet to hear an employer declare that they’re going to pack up shop in a union state and move to Michigan strictly because we have RTW,“ he said.
In the 24 RTW states, workers generally earn less, he said.
“In other states, it hasn’t been good for workers.”
Most RTW states are in the South, and RTW states are generally Republican, while non-RTW states are Democrats. Experts say that could cause a shift in the political arena as well.
Carlson said the economic arguments can cut both ways. He said studies have shown that RTW can attract employers, but it also lowers the quality of life and standard of living for middle class workers. As a result, consumer spending goes down.
“And so the economic arguments do go both ways, but it appears, on the whole, that the more objective economic analysis comes out against RTW laws on the whole,” he said.
He also debunked several myths about the RTW law. Proponents say it prohibits forced unionization.
“But that’s been illegal for 60 years,” Carlson said.
Unions have been forced to make concessions, and globalized free trade have opened cheap labor markets, according to Carlson.
“RTW states have caused a race to the bottom,” he said.
He uses the Saturn car experiment as an example. That manufacturing operation went to Tennessee, a RTW state, and forced General Motors employees there to accept lower wages and benefits without the opportunity to negotiate or compromise.
“And all they ask for in return is a closer to level playing field, a fair shot,” he said. “And when the politics of one state offer a company the opportunity to get more for less, and the workers in the other state are forced to compromise, at some point, something has to give. And what we have now in Michigan, unfortunately, is an even more diminished opportunity for workers to reach the benefit of their bargain.”
The fact is, Carlson said, that employers are moving to places where the pool of workers is more educated in the areas of math, science, and technology.
And if Michigan does not have a strong middle class to send their children to schools to learn those skills, he said “they’re not going to have a workforce that can compete for jobs in the 21st century.”
The state, he said, is restricting worker’s rights at the same time it’s lowering investments in education, through evaluations that make it more difficult for teachers to do their jobs, less funding and other things that weaken the middle class.
“If Michigan wants to compete economically and get the better jobs, it should be interested in having more protections for workers, a higher quality of life, so that workers who work in a GM factory today can send their kids to school so they can be the technical innovators 10-20 years from now,” Carlson said. “It’s what upward mobility in the middle class should be about.”
His vision for RTW, long term here, is that unions will have to cut their professional staff, reduce services, and balance the interest of workers in the pursuit of workplace protection and representation, versus legal and political advocacies.
Dissension between those factions in the workplace — those who pay union fees and those who don’t — can also lead to problems, he said.
“And it’s going to cause resentment in the workplace, and that’s never good. It‘s not good for employee morale, for productivity, or for business, when you have workers who are conflicted,” Carlson said.
It could also lead to an increase of litigation, he said, when unions are unable to resolve an otherwise run-of-the-mill dispute between employer and employee.
RTW is here, Carlson said, and can only be overturned by acts of future state legislation and a governor’s signature, and not by a vote of the people.
To those who advocate for RTW, Carlson says, “I hope they’re right. But experience teaches us that’s not the way reality works, unfortunately.”
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