Major Laws Susceptible to Challenge

As noted above, the most radical portion of Proposal 2 — the proposed Article I, Section 28(3) — would give unions the ability to negotiate terms in their labor contracts that supersede state law. Also as discussed above, this ability to nullify or suspend laws would be limited only by the scope of collective bargaining itself, and this scope would be defined as “wages, hours, and other terms and conditions of employment.” In addition, under the proposed Article I, Section 28(4), there is a prohibition on state or local laws that would “impair, restrict or limit” any provisions in collective bargaining agreements concerning employees’ financial support of a union.

This phrase is defined in federal law, but since 1994, the scope of bargaining that the phrase represents has been narrowed by the Michigan Legislature in an exercise of its constitutional discretion over public-sector collective bargaining. In that year, because of a perceived imbalance of power favoring public school employee unions at the collective bargaining table (an imbalance reminiscent of the discussion in Abood), the Legislature passed Public Act 112, which added “prohibited subjects of bargaining” to PERA.[59] Additional prohibited subjects have since been added to PERA.[60] 

Proposal 2 would effectively restore the status quo pre-1994, rendering many of these prohibited subjects of bargaining vulnerable to nullification in new public school collective bargaining agreements. We now turn to these provisions. Note the large number of contracts under which such challenges could be mounted.  A review of the Mackinac Center’s database of Michigan School District Collective Bargaining Agreements indicates that there are a minimum of 1,698 collective bargaining agreements in Michigan’s public school system alone.[61] The content of each of these contracts — and the content of an unknown number of other union contracts in state, county, municipal and other government subdivisions — would provide opportunities to challenge some or all of the laws discussed in the remainder of this Policy Brief.