As observed earlier, the phrase “wages, hours and other terms and conditions of employment” covers a wide range of potential bargaining issues, including some that are not obvious at first blush. For instance, a government-employee union (and government employer) could include in a contract the ability to smoke indoors on the job in a public building, even if this violates the statutory ban on indoor smoking in public places. This example may seem absurd, but the National Labor Relations Board has already determined that smoking on the work premises is a mandatory subject of collective bargaining. As one of the “terms and conditions of employment,” smoking provisions in a collective bargaining agreement with a government-employee union would have the power of the Michigan Constitution and supersede Michigan’s existing “public space” indoor smoking ban.[*]
Proposal 2 does not enumerate the specific laws that it would invalidate. Recall, however, that the legal clauses in literally thousands of state and local government contracts — a minimum of 1,698 contracts in Michigan’s public school districts alone — would provide myriad opportunities to challenge state law. In turn, determining the full scope and impact of Proposal 2 will be left primarily to the Michigan Employment Relations Commission, the Civil Service Commission and Michigan’s court system, all of which will be asked to invalidate any law deemed to abridge, impair or limit collective bargaining.
[*] Theoretically, private-sector collective bargaining agreements might trump state law as well. For instance, imagine that a unionized wait staff at a large restaurant chain demanded the ability to smoke on the job despite the Michigan state law prohibiting smoking in restaurants. Would the NLRB hold that Proposal 2’s language applied to workers under the NLRB’s jurisdiction? And how would Michigan’s courts treat private-sector union contracts that conflicted with state law? The answers to these questions are unknown.