A 2011 law prohibited school districts from using public resources to collect dues on behalf of unions through payroll deductions. Like the prohibited subjects of bargaining reviewed in this study, this law was repealed in 2023. It read:
(1) A public employer or an officer or agent of a public employer shall not do any of the following:
[…]
(b) Initiate, create, dominate, contribute to, or interfere with the formation or administration of any labor organization. A public school employer’s use of public school resources to assist a labor organization in collecting dues or services fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.[11][Emphasis added].
The logic behind this reform is simple: Taxpayer dollars meant to fund public education should not be used to financially support a private and politically active organization, especially one that it is perfectly capable of collecting its own membership dues. This was reinforced by the U.S. Supreme Court’s 2018 decision in Janus vs. AFSCME, in which the Court determined that public sector unions, such as teachers unions, engage in political speech when negotiating terms and conditions of employment for government workers.
In Janus, the Supreme Court was asked to review whether laws requiring employees to pay government unions in order to keep their jobs violated the First Amendment. Prior to the decision, government workers had the right to opt out of paying the portion of dues that their union spent on direct political activity, known as nonchargeable expenses, but they were still forced to pay the portion of dues supposedly only supporting the nonpolitical activity of a union. The Supreme Court rejected this approach in the Janus case by determining that all activities conducted by government unions constituted political activity.
The Court reasoned that even negotiating over wages or work hours is political in nature because those activities directly impact governmental decisions on spending and policy. It ruled that government workers could not be forced, under threat of losing their employment, to pay dues or fees to a union. Requiring that support would violate the First Amendment rights of public employees because they would be forced to support political activity. This essentially brought right-to-work protections to all government workers across the country, and this protection continues even after the repeal of Michigan’s right-to-work law.[*]
The 2023 changes to Michigan’s collective bargaining law — the Public Employment Relations Act — now again allow districts to redirect public resources meant for educating students to organizations whose function is inherently political. Many public schools will soon find themselves being pressured to act as a union’s bill collector. The de facto result is that Michigan taxpayers will subsidize political activity through school payroll deductions.
Unfortunately, some school districts appear poised to subsidize unions. A number of districts have language in their collective bargaining agreements that either unlawfully continued to permit payroll deduction of union dues or automatically resumes deducting dues now that the prohibition has been repealed. But even districts without this problematic language will now be asked to bargain over whether they will use taxpayer dollars to subsidize inherently political activity through payrolls. As a matter of principal, this is no different than school districts collecting campaign contributions for certain political candidates or using public funds to endorse a school millage, both of which violate Michigan law.[12]
In our review, 6% of contracts contained terms that appear to violate the state law prohibiting districts from collecting union dues through payroll deductions. Another nearly 40% contained terms which were questionable or could be interpreted as allowing for the practice. The rest of the contracts, just over half, appeared compliant with the law. Just over a third of these contracts contained language that either automatically revived these dues deductions or which could easily be adapted to do so.
Often, terms allowing for these dues deductions were preceded by references to other payroll deductions, such as for insurance premiums, retirement savings or annuity payments.[†] It is possible that these open-ended terms could be used to seamlessly revive payroll deductions for union dues, without even the need to renegotiate the collective bargaining agreement.
Troy School District provides an example of this questionable language:
Deductions for financial institutions, tax-deferred annuities, United Foundation, and other deductions will continue as authorized by individual teachers. Other deductions may be arranged by mutual agreement between the Board and the [union].[13]
Some contracts go even further and appear to explicitly violate the law. Warren Consolidated Schools, for instance, operates under a collective bargaining agreement that explicitly requires teachers to pay a union or face termination.[14] Perhaps recognizing that this requirement is contrary to both Michigan’s right-to-work law and the Janus ruling, the union agrees to indemnify the school board for any legal liability and fees incurred if the district illegally terminates an employee for refusing to pay the union. Although this provision violates the First Amendment rights of teachers, employees reading this agreement are likely to believe that they are required to support the union. School districts should not agree to unenforceable contract terms, particularly when those terms clearly violate the law and mislead employees about their legal rights.
Other districts have already waived the right to negotiate over dues deduction upon repeal of the 2011 reforms. Detroit Public Schools’ bargaining agreement provides a clear example of language that automatically reinstates dues deductions without the need for renegotiation:
Consistent with and as limited by current practice, the District shall make payroll deductions upon written authorization from bargaining unit members to the extent permitted by law. In the event that there is a change in law which would authorize payroll deductions for Union dues and/or fees, the District shall allow and effectuate such deductions consistent with applicable law.[‡]
School officials should review their existing collective bargaining agreements for this language. Districts should not be in the business of subsidizing political activity, whether in the form of payroll deduction or otherwise. Deducting dues on behalf of a union also creates the risk of litigation. Public sector workers across the country have sued over such practices, with school districts frequently being named as defendants.[15] Schools wishing to avoid these issues should refuse to deduct union dues through their payroll systems.
[*] The Janus case was decided on constitutional grounds and, therefore, overrules any contrary public sector bargaining federal or state statutes. The 2023 law repealing Michigan’s right-to-work protections expressly acknowledges this, stating that the law does not go into effect unless Janus is repealed, or a federal constitutional amendment permitting agency fees is adopted. Thus, public sector workers cannot be forced to join a union, or to pay dues or agency fees. MCL § 423.210(5)(a).
[†] Generally, rules of statutory construction would indicate that any other mutually agreed-upon deductions be of the same or a similar class to those which are specifically listed. Under this canon of construction, dues deductions would typically be outside the scope of deductions that could be authorized. Given an outside party’s lack of standing to sue, however, a determination that dues deduction is sufficiently similar to the listed deductions would be challenging.
[‡] “Agreement between the Detroit Public Schools Community District and the Detroit Federation of Teachers, July 1, 2021-June 30, 2023” (Detroit Public Schools Community District, Sept. 24, 2020), https://perma.cc/H6DJ-5HKY. The reference in the contract to “Union dues and/or fees” is misleading, as it suggests to a reader that an employee’s rights are tied to the existence of Michigan’s right-to-work law. The Janus decision protects public sector employees from being forced to pay these fees as a matter of constitutional law, but employees who are not aware of that decision may conclude that they are required to pay agency fees based on the language of this collective bargaining agreement.