Patrick Connolly
Associate Manager, Health, Retirement, & Employment Policy, U.S. Chamber of Commerce


November 18, 2020


Following an adversedecisionby the U.S. District Court for the Eastern District, Michigan’s largest unions on October 14 dropped a lawsuit challenging a rule that requires annual reauthorization of union membership for state employees.

In July, the Michigan Civil Service Commission amendedRule 6-7.2of the state’s Civil Service Rules, which went into effect on September 1. The amended rule requires that Michigan employees reauthorize their union membership each year and stipulates that failing to do so will result in a cessation of dues deductions until reauthorized. In addition to requiring reauthorization, the Commission also amended the rule to discontinue service fee payroll deductions by the end of 2021.

Shortly after the rule took effect, a number of unions, including the UAW, SEIU, AFSCME, and AFL-CIOfiled suitseeking a temporary injunction and for the rule to be struck down. The unions argued that the rule “substantially impairs” collective bargaining agreements and infringes upon their First Amendment freedom of association by requiring regular reauthorization in order for dues to be paid. They also argued that the discontinuation of service fee deductions violates theContracts Clauseof the U.S. Constitution by impairing agreements between the State of Michigan and the unions concerned.

Following the complaint, the state argued against the plaintiffs’ assertion that the new rule violated their freedom of association, and that it instead supported a worker’s right to freedom of speech in terms of union membership. In support of the state’s argument, the Mackinac Center Legal Foundation and the National Right to Work Legal Defense Foundation jointly filed an amicus brief in which they argued that the annual renewal requirement and discontinuation of service fee deductions are consistent with the First Amendment right to free speech of the state’s workers as articulated by the Supreme Court’s landmark decision inJanus v. AFSCME,which held in 2018 that a “State’s extraction of agency fees from nonconsenting public sector employees violates the First Amendment.”

In an October 1 opinion denying the motion for a preliminary injunction, U.S. District Judge George Caram Steeh noted that the court was bound by the 6th Circuit’s decision inKaminski v. Coulter​ thatheld “an alleged Contracts Clause violation cannot give rise to a cause of action under[42 U.S.C.]§ 1983,” which is the federal statute that permits civil suits for alleged violations of civil rights. As such, Steeh found the argument that Rule 6-7.2 violated the Contracts Clause unconvincing.

Regarding the First Amendment challenge to the rule, Steeh noted that the Supreme Court precedent underYsursa v. Pocatello Educ. Ass’n​ and the 6th Circuit’s decision inBailey v. Callaghanset a precedent that the prohibition against “abridging the freedom of speech…does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” He also rebuffed the plaintiffs’ argument that the rule causes irreparable harm, noting that he could find no such harm. He added that the Civil Service Commission had sent numerous reauthorization reminders to employees providing them their options for reauthorization and that 82% of members had already reauthorized their deductions.

Perhaps sensing that their odds of victory were remote, the unions dropped their lawsuit shortly after Steeh denied their request for an injunction. Inasmuch as the decision is consistent with Janus and a victory for worker’s freedom of choice regarding union membership, it is a positive development as a matter of principle. With the rule left intact, Michigan state employees will now have to reauthorize union membership in October of each year for dues to be deducted from their payroll. More importantly, unions representing public sector employees in Michigan will have to earn their support rather than take it for granted.

About the authors

Patrick Connolly