Right-to-work law

Right-to-work laws are statutes in a reported 26 states in the United States that are an effort to give employees the right to work without being required or compelled to join to a union. These statutes are not listed under US labor and employment laws as of May 2016, but have been operational with local employment hearing judges for over a half decade. Right-to-work laws were reported in all US states in regard to unemployment insurance hearings in which the employer was seeking to bar the employee from receiving these legal benefits after termination. Public policy exceptions have been devised by attorneys to seek to overturn the broad and unannounced sweep of these laws in the US. Local appellate judges have not indicated that they will allow public policy to be used on behalf of the former employees - most of whom were employees under their health insurance when injured (e.g., mental health parity laws).

According to the Legal Defense Foundation, right to work laws prohibit union security agreements, or agreements between employers and labor unions, that govern the extent to which an established union can require employees' membership, payment of union dues, or fees as a condition of employment, either before or after hiring. Right-to-work laws do not aim to provide general guarantee of employment to people seeking work, but rather are a government regulation of the contractual agreements between employers and labor unions that prevents them from excluding non-union workers,^[1] or requiring employees to pay a fee to unions that have negotiated the labor contract all the employees work under.

Unions are already governed by regulations and laws, including public policy on labor-management relations (e.g., a university central office professional position on "labor relations"). Typically, unions are organized by industry (e.g., health care, restaurant, steel workers, teachers, state government- professional, non-professional), and they are required to be voted in by employees and "management" with provisions on dues payments required as of 2011. For example, while municipal employees have their own unions, as do police and firefighters, other non-profit agencies in localities may not be offered these same protections. Unions have early roots in America from assuring pensions and benefits to employees, to fair hearings and union representation, and even working conditions, such as the "sweat shops" of early manufacturing.

Right-to-work provisions (either by law or by constitutional provision) exist in 26 U.S. states, mostly in the southern and western United States, but also including the Midwestern states of Michigan,^[2] Indiana,^[3] Iowa, and Wisconsin.^[4] Business interests represented by the United States Chamber of Commerce have lobbied extensively to pass right-to-work legislation.^[5][6][7][8] Such laws are allowed under the 1947 federal Taft–Hartley Act. A further distinction is often made within the law between those persons employed by state and municipal governments and those employed by the private sector with states that are otherwise union shop (i.e., pay union dues or lose the job) having right to work laws in effect for government employees.

History

Wagner Act (1935)

The National Labor Relations Act, generally known as the Wagner Act, was passed in 1935 as part of President Franklin D. Roosevelt's "Second New Deal". Among other things, the Act provided that a company could lawfully agree to being any of the following:

• A closed shop, in which employees must be members of the union as a condition of employment. Under a closed shop, an employee who ceased being a member of the union for whatever reason, from failure to pay dues to expulsion from the union as an internal disciplinary punishment, was required to be fired even if the employee did not violate any of the employer's rules.
• A union shop, which allows for hiring non-union employees, provided that the employees then join the union within a certain time period.
• An agency shop, in which employees must pay the equivalent of union dues, but need not formally join the union.
• An open shop, in which an employee cannot be compelled to join or pay the equivalent of dues to a union, nor can the employee be fired if he or she joins the union.^[9]

The Act tasked the National Labor Relations Board, which had existed since 1933, with overseeing these rules.

Taft–Hartley Act (1947)

In 1947 Congress passed the Labor Management Relations Act of 1947, generally known as the Taft–Hartley Act, over President Harry S. Truman's veto. This law repealed some parts of the Wagner Act, including outlawing the closed shop. Section 14(b) of the Taft-Hartley Act also authorizes individual states (but not local governments, such as cities or counties) to outlaw the union shop and agency shop for employees working in their jurisdictions. Any state law that outlaws such arrangements is known as a "right-to-work law".

Current status

The Federal Government operates under open shop rules nationwide, though many of its employees are represented by unions. Unions that represent professional athletes have written contracts that include exclusive representation provisions (for example in the National Football League),^[10] but their application is limited to "wherever and whenever legal," as the Supreme Court has clearly held that the application of a Right to Work law is determined by the employee's "predominant job situs."^[11] Hence, players on professional sports teams in states with Right to Work laws are subject to those laws, and cannot be required to pay any portion of union dues as a condition of continued employment.^[12]

Twenty-four states, plus the District of Columbia, do not have right-to-work laws.

Arguments

In favor

Minority rights and due process

The first arguments concerning the right to work centered around the rights of a dissenting minority with respect to an opposing majoritarian collective bargain. President Franklin Roosevelt's "New Deal" had prompted many U.S. Supreme Court challenges, among which, were challenges regarding the constitutionality of the National Industry Recovery Act of 1933 (NIRA). In 1936, as a part of its ruling in Carter v. Carter Coal Co. the Court ruled against mandatory collective bargaining, stating: "The effect, in respect to wages and hours, is to subject the dissentiate minority ... to the will of the stated majority .... To ‘accept’ in these circumstances, is not to exercise a choice, but to surrender to force. The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body ... but to private persons .... [A] statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this Court which foreclose the question."^[13]

Freedom of association

Besides the U.S. Supreme Court, other proponents of right-to-work laws also point to the Constitution and the right to freedom of association. They argue that workers should both be free to join unions or to refrain, and thus, sometimes refer to non-right-to-work states as "forced unionism" states. These proponents argue that by being forced into a collective bargain, what the majoritarian unions call a fair share of collective bargaining costs is actually "financial coercion and a violation of freedom of choice." An opponent to the union bargain is forced to "financially support an organization they did not vote for, in order to receive monopoly representation they have no choice over."^[14]

Some religions, such as the Seventh-Day Adventist Church, prohibit or discourage the joining of unions,^[15][16][17] citing Ellen White and the Loss of Free Will if you join a union.

Unfairness

Proponents such as the Mackinac Center for Public Policy contend that it is unfair that unions can require new and existing employees to either join the union or pay fees for collective bargaining expenses as a condition of employment under union security agreement contracts.^[18] Other proponents contend that unions may still be needed in new and growing sectors of the economy, for example, the voluntary and third party sectors, to assure adequate benefits for new immigrant, "part-time" aides in America (e.g., US Direct Support Workforce).

Political Contributions

Right-to-work proponents, including the Center for Union Facts contend that political contributions made by unions are not representative of the union workers.^[19] The agency shop portion of this had previously been contested with support of National Right to Work Legal Defense Foundation in Communications Workers of America v. Beck, resulting in "Beck rights" preventing agency fees from being used for expenses outside of collective bargaining if the non-union worker notifies the union of their objection.^[20]

Opposed

Free riders

Some opponents (such as Richard Kahlenberg) have argued that while it is an effective political slogan, the phrase "right-to-work" is a misnomer because the lack of such a law does not deprive anyone of the right to work; a right-to-work law simply "gives employees the right to be free riders—to benefit from collective bargaining without paying for it".^[21][22] Under labor laws in the United States, the union as the exclusive collective bargaining agent has a Duty of fair representation for all persons in the bargaining unit, including those who choose not to be members and pay dues. Thus, in Abood v. Detroit Board of Education, the Supreme Court of the United States permitted Agency fees so that employees in the public sector could be required to pay for the costs of representation, even as they opted to not be a member. The right to challenge the fees must include the right to have it heard by an impartial fact finder.^[23][24]

Freedom of contract and association

Opponents argue that right-to-work laws restrict freedom of association, and limit the sorts of agreements individuals acting collectively can make with their employer, by prohibiting workers and employers from agreeing to contracts that include "fair share fees". This creates a free rider problem^[5][25] among non-union employees who find the union contract beneficial. Thus, union members may end up subsidizing non-union members.^[5][26] Moreover, American law imposes a duty of fair representation on unions; consequently non-members in right to work states can and do force unions to provide without compensation grievance services that are paid for by union members. Hence right-to-work laws are not neutral, but rather impose an active and artificial burden on labor unions.

In December 2012, libertarian writer J.D. Tuccille, in Reason magazine, wrote: "I consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violate freedom of contract and association. ... I'm disappointed that the state has, once again, inserted itself into the marketplace to place its thumb on the scale in the never-ending game of playing business and labor off against one another. ... This is not to say that unions are always good. It means that, when the state isn't involved, they're private organizations that can offer value to their members."^[27]

In the early development of the Right to Work policy segregationist sentiment was used as an argument, as many people in the south felt that it was wrong for Blacks and Whites to belong to the same unions. Vance Muse, one of the early developers of the Right to Work philosophy in Texas used this type of argument in the development of anti-union laws in Texas in the 1940s.^{[28][29][30][31][32]}

Corporate interests

Critics from organized labor have argued since the late 1970s^[33] that while the National Right to Work Committee purports to engage in grass-roots lobbying on behalf of the "little guy", the National Right to Work Committee was formed by a group of southern businessmen with the express purpose of fighting unions, and that they "added a few workers for the purpose of public relations".^[34]

The unions also contend that the National Right to Work Legal Defense Foundation and National Right to Work Committee have received millions of dollars in grants from foundations controlled by major U.S. industrialists like the New York-based Olin Foundation, Inc., which grew out of a family manufacturing business.^[34][35]

Kahlenberg and Marvit also argue that at least in efforts to pass a right-to-work law in Michigan, the exclusion of police and firefighter unions—traditionally less hostile to Republicans—from the law, caused some to question claims that the law was simply an effort to improve Michigan's businesses climate, not to seek partisan advantage.^[21]

Corporate interests have now involved the growing non-profit and voluntary sectors of the economy which "achieved parity in wages and benefits" to the state, unionized workforces, while not assuring provisions such as adverse hearings which benefit employees.

Studies of economic effect

According to Tim Bartik of the W. E. Upjohn Institute for Employment Research, studies of the effect of right-to-work laws "abound", but are not "consistent". Studies have found both "some positive effect on job growth", and no effect.^[36] Thomas Holmes argues that it is difficult to analyze right-to-work laws by comparing states due to other similarities between states that have passed these laws. For instance, right-to-work states often have a number of strong pro-business policies, making it difficult to isolate the effect of right-to-work laws.^[37] Looking at the growth of states in the Southeast following World War II, Bartik notes that while they have right-to-work laws they have also benefited from "factors like the widespread use of air conditioning and different modes of transportation that helped decentralize manufacturing".^[38]

Economist Thomas Holmes compared counties close to the border between states with and without right-to-work laws (thereby holding constant an array of factors related to geography and climate). He found that the cumulative growth of employment in manufacturing in the right-to-work states was 26 percentage points greater than that in the non-right-to-work states.^[39] However, given the study design, Holmes points out "my results do not say that it is right-to-work laws that matter, but rather that the 'probusiness package' offered by right-to-work states seems to matter".^[40] Moreover, as noted by Kevin Drum and others, this result may reflect business relocation rather than overall enhancement of economic growth, since "businesses prefer locating in states where costs are low and rules are lax".^[41]

A February 2011 study by the Economic Policy Institute found:^[22]

• Wages in right-to-work states are 3.2% lower than those in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic variables as well as state macroeconomic indicators. Using the average wage in non-RTW states as the base ($22.11), the average full-time, full-year worker in an RTW state makes about $1,500 less annually than a similar worker in a non-RTW state. The study goes on to say "How much of this difference can be attributed to RTW status itself? There is an inherent “endogeneity” problem in any attempt to answer that question, namely that RTW and non-RTW states differ on a wide variety of measures that are also related to compensation, making it difficult to isolate the impact of RTW status."^[22]
• The rate of employer-sponsored health insurance (ESI) is 2.6 percentage points lower in RTW states compared with non-RTW states, after controlling for individual, job, and state-level characteristics. If workers in non-RTW states were to receive ESI at this lower rate, 2 million fewer workers nationally would be covered.
• The rate of employer-sponsored pensions is 4.8 percentage points lower in RTW states, using the full complement of control variables in [the study's] regression model. If workers in non-RTW states were to receive pensions at this lower rate, 3.8 million fewer workers nationally would have pensions.

A 2008 editorial in The Wall Street Journal comparing job growth in Ohio and Texas stated that from 1998 to 2008, Ohio lost 10,400 jobs, while Texas gained 1,615,000. The opinion piece suggested right-to-work laws might be among the reasons for the economic expansion in Texas, along with the North American Free Trade Agreement (NAFTA), and the absence of a state income tax in Texas.^[42] Another Wall Street Journal editorial in 2012, by the president and the labor policy director of the Mackinac Center for Public Policy, reported 71% employment growth in right-to-work states from 1980 to 2011, while employment in non-right-to-work states grew just 32% during the same period.^[43] The 2012 editorial also stated that since 2001, compensation in right-to-work states had increased 4 times faster than in other states.^[43]

Polling

In January 2012, in the immediate aftermath of passage of Indiana's right-to-work law, Rasmussen Reports found that 74% of U.S. voters supported right-to-work laws.^[44]

In Michigan in January through March 2013, a poll found that 43 percent of those polled thought the law would help Michigan's economy, while 41 percent thought it would hurt.^[45]

U.S. states with right-to-work laws

Right-to-work states shown in turquoise.

The following states (26) are right-to-work states:

• Alabama (adopted 1953)
• Arizona (Constitution, State Constitution Article 25 approved 1946)^[46] (adopted 1944)
• Arkansas (Constitution, 1947, Amendment 34)
• Florida (Constitution, 1944, revised 1968, Article 1, Section 6)^[47][48]
• Georgia (adopted 1947)
• Idaho (adopted 1985)
• Indiana^[3] (State law, 2012)
• Iowa (adopted 1947)
• Kansas (Constitution, 1958, Article 15, Section 12)
• Louisiana (adopted 1976)
• Michigan (State law, 2012)^[2]
• Mississippi (Constitution, adopted 1954)
• Nebraska (Constitution and statute, adopted 1946)
• Nevada (adopted 1951)
• North Carolina (adopted 1947)
• North Dakota (adopted 1947)
• Oklahoma (Constitution, adopted 2001)
• South Carolina^[49] (adopted 1954)
• South Dakota (adopted 1946)
• Tennessee (adopted 1947)
• Texas^[50] (adopted 1947)
• Utah (adopted 1955)
• Virginia (adopted 1947)
• West Virginia (adopted 2016)
• Wisconsin (adopted 2015)
• Wyoming (adopted 1963)

In addition, the territory of Guam also has right-to-work laws, and employees of the US Federal Government have the right to choose whether or not to join their respective unions.^[51]

See also

• At-will employment
• Closed shop / Open shop
• United States labor law

References

External links

Opposed to right-to-work laws

• Wisconsin Contractor Coalition

Supported right-to-work laws

• Wisconsin Manufacturers and Commerce
• Michigan Chamber of Commerce
• National Right to Work Committee
• Legal Defense Fund