The model amendment benefited from the Oklahoma experience. As Justice Opala noted, federal labor law is not static; big changes sometimes occur. One example is the 1951 Railway Labor Act amendment that allowed union shops, which had previously been prohibited. Another is the 1947 Taft-Hartley amendments to the NLRA, which included section 14(b), the provision that permits state right-to-work laws. In clause E, the model amendment explicitly seeks to regulate to the full extent permissible by federal law at all times.*

Clause B(1) of the model amendment also contains a union-nondiscrimination clause, despite the 10th Circuit’s contention that such a provision would be pre-empted by federal law. It is by no means certain that the 10th Circuit properly interpreted Lincoln Federal and American Sash. The Supreme Court held that the two cases must be considered separately, a fact not properly accounted for in the 10th Circuit’s analysis. The Supreme Court issued separate opinions on the two cases because the Arizona amendment, unlike the Nebraska amendment and North Carolina law, did not contain a union nondiscrimination clause. The Supreme Court’s decision to issue separate opinions leads to the conclusion that a law that failed to include such a union nondiscrimination provision could risk an equal protection violation, despite the 10th Circuit’s assertion that such a law would likely pass muster under the "rational basis" test.

Of course, the presence of this nondiscrimination clause could theoretically lead to a court challenge to the model language similar to the lawsuit in Oklahoma. But the unions’ strategy in Oklahoma was entirely dependent on an argument that the language of the amendment was not severable. The model amendment proposed here contains an explicit severability clause, rendering a union challenge to the nondiscrimination clause all but fruitless. In clause E, the model amendment explicitly recognizes that federal law may (or may not) pre-empt some portion of its language. This explicit recognition obviates any argument that voters were unaware of a potential overlap or conflict with federal law. The clause also ensures that voters are directly informed that the remainder of the law would be enforced in the event of a pre-emption of any part of the amendment.

Note, too, that the amendment does not include either the hiring-hall provision or the paycheck-protection provision that did not pass muster in the Oklahoma case. The absence of these elements means that there is less language in the model that could be susceptible to a pre-emption claim, and therefore that there is less chance a court would use pre-emption and severability to annul the amendment in its entirety. It should also be noted that Michigan already has a paycheck protection statute (though it is somewhat narrow).[47]

And ultimately, there is much to be said for a labor relations policy that maximizes government neutrality. Given that federal law provides unions with a collective bargaining monopoly regardless of the wishes of some of the individual workers and employers involved, and given that the U.S. Constitution (and simple fairness) requires equal treatment under the law, a neutral approach would support providing antidiscrimination protection to both union members and nonmembers.

The Oklahoma experience is not the only one that provided guidance. The beginning of Clause B of the model amendment discusses both private- and public-sector employment because the state supreme courts of South Carolina and Tennessee have held that their right-to-work laws did not apply to public employees in the absence of language explicitly saying so. The model language would recognize the same right-to-work freedoms for public employees as it would for private workers.

Clause B(3) is informed by Nevada’s Cone decision, in which the court ruled that a union could assess nonunion workers a fee when those nonmembers filed a grievance. While other courts have reached a different conclusion where the right-to-work provisions did not explicitly prohibit such fees, the model amendment in B(3) eliminates any ambiguity by explicitly prohibiting the collection of such an assessment (or any other type of fee).

Clause B(4) is included because people with religious objections to union membership are typically required to pay their union dues or agency fees to a charity instead of the union. Note that the clause would also exempt non-religious-objectors from such payments if the unions ever attempted to require the payments.

Clause D provides civil remedies for violations of the amendment, a stipulation common in other states’ right-to-work provisions. The remedies are meant to fully compensate a worker and to minimize obstacles to workers’ enforcing their rights. In particular, the provision granting an employee who prevails in court under this amendment both costs and reasonable attorney fees makes it easier for employees with legitimate claims to access the courts.

Many states include misdemeanor criminal sanctions in their right-to-work statutes, but only one state — Oklahoma — does so in a right-to-work amendment. The model language here does not include such a sanction. No other provision in the Michigan Constitution creates criminal penalties for violations; the state’s constitution is not generally considered the place to insert minor criminal infractions. Nothing in the model language prevents the Legislature from creating misdemeanor criminal penalties for violations of the amendment or from providing further civil remedies.** In other words, when it comes to enforcement of the section’s provisions, the amendment acts as a floor, not as a ceiling.

* This clause differs from the approach adopted in Michigan Senate Bill 607 and House Bill 4454. Those bills specifically list the federal laws that might pre-empt parts of the proposed right-to-work legislation and exempt the employees subject to these federal laws from the bills’ right-to-work guarantees. Such an approach was not adopted in the model amendment because these federal laws might change, and the model embraces an elastic approach that does not require a new state amendment for each change in federal law. For example, if Congress were to pass a new provision of the Railway Labor Act paralleling the NLRA’s section 14(b), then state right-to-work laws would be permitted to cover railway and airline employees. If the Senate and House bills were passed as written, however, the Legislature would have to amend the resulting state right-to-work law to include those transportation employees. The model amendment, in contrast, would automatically include them, since the amendment states, “[T]he section shall be implemented to the maximum extent that the United States Constitution and federal law permit.” For a discussion of the other differences between the Michigan Senate and House bills and the model amendment, see the two footnotes that follow.

Thus, the model amendment differs from Michigan Senate Bill 607 and House Bill 4454, which do not include a union nondiscrimination clause.

** Indeed, both Senate Bill 607 and House Bill 4454 include misdemeanor criminal penalties for violation of the proposed statutes. Note that the bills also state that prosecutors or the attorney general “shall investigate each complaint of a violation of this act and shall prosecute the criminal case if credible evidence of a violation exists.” This provision of the proposed statutes would likely prompt a constitutional challenge on grounds that the “separation of powers” doctrine prevents the Legislature from restricting the discretion of prosecutors, who are part of the executive branch of government.