Related Principles at Issue in the New Model

There is one other very important aspect of union law that is affected by what occurred here with the SEIU and MQC3, and by what Proposal 4 seeks to set in stone. This goes to the very heart of the purpose which has justified collective bargaining.

Under collective bargaining, the representative union almost invariably becomes the exclusive representative of the employees. The union then speaks for all the employees in the bargaining unit regarding matters of employment, and the individual employees no longer have the right to negotitate on their own behalf on employment matters.

The courts recognize this restriction as an infringement on a dissenting employee’s First Amendment right to free speech and association. The U.S. Supreme Court has held this infringement to be justified because of the government’s compelling interest in “industrial peace and stabilized labor-management.”[94] In short, the U.S. Congress, in enacting the National Labor Relations Act, put forth a policy of sufficient importance — maintaining “industrial peace” and preventing stoppages to commerce — to legally override First Amendment rights to freedom of association and speech.

While this view may have been plausible in the first half of the 20th century, when labor relations were often marked by work stoppages and industrial sabotage,[95] is there a legitimate concern over “industrial peace” when in-home caregivers are caring for family members? These caregivers were not unionized prior to the novel theories implemented in the 1990s, yet there is no record of in-home caregivers disrupting commerce or resorting to widespread violence with their care recipients. The idea seems largely fanciful.

In fact, a First Amendment constitutional challenge on behalf of in-home caregivers has been brought in Illinois, and it appears to be headed to the U.S. Supreme Court.[96] If Proposal 4 passes, however, this is the new model of public-sector unionization that would be enshrined in Michigan’s constitution.

This model holds that the indirect receipt of public money in performing a service renders the recipient a public employee subject to unionization. If someone can be considered a public employee merely because he or she receives public money, then doctors who participate in Medicare can be deemed “public employees” and unionized. So too can landlords who accept payment from housing programs for low-income tenants or grocers who accept food stamps.

This model would therefore unionize a large number of business owners and workers against state and local government, just as it already has unionized home-based day care providers and foster care parents in other states.[97] While the potential for such a large number of unionized employees might be a natural goal of national labor unions, it could have significant consequences for the operation of government and for the potential union members themselves.