Right-to-work law
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In the context of
The 1947 federal
History
Origins
The original use of the term
According to PandoDaily, the modern term was coined by Vance Muse, a Republican Party operative who headed the Christian American Association, an early right-to-work advocacy group, to replace the term "American Plan" after it became associated with the anti-union violence of the First Red Scare.[6] Muse used racial segregationist arguments in advocating for anti-union laws.[7][8][6][9][10]
According to Slate, right-to-work laws are derived from legislation forbidding unions from forcing strikes on workers, as well as from legal principles such as freedom of contract, which sought to prevent passage of laws regulating workplace conditions.[11]
Wagner Act (1935)
The
- 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 period.
- An agency shop, in which employees must pay the equivalent of the cost of union representation, 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 or be fired for joining the union.[12]
The act tasked the National Labor Relations Board, which had existed since 1933, with overseeing the rules.
Taft–Hartley Act (1947)
In 1947, the
Current status
The federal government operates under open shop rules nationwide, but many of its employees are represented by unions. Unions that represent professional athletes have written contracts that include particular representation provisions (such as in the National Football League),[13] 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".[14] Players on professional sports teams in states with right-to-work laws are thus subject to those laws and cannot be required to pay any portion of union dues as a condition of continued employment.[15]
Arguments for and against
Rights of dissenting minority and due process
The first arguments concerning the right to work centered on the rights of a dissenting minority with respect to an opposing majoritarian collective bargain. President
The effect, in respect to wages and hours, is to subject the dissentient 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
Fifth Amendment, that it is unnecessary to do more than refer to decisions of this Court which foreclose the question.
Freedom of association
Besides the Supreme Court, other proponents of right-to-work laws also point to the
The Seventh-day Adventist Church discourages the joining of unions,[18] citing the writings of Ellen White, one of the church's founders, and what writer Diana Justice calls the "loss of free will" that occurs when a person joins a labor 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.[19] 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 such as the direct support professional 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.[20] 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.[21] The right to challenge the fees must include the right to have it heard by an impartial fact finder.[22] Beck applies only to unions in the private sector, given agency fees were struck down for public-sector unions in Janus v. AFSCME in 2018.
Free riders
Opponents, such as Richard Kahlenberg,[2][23] have argued that right-to-work laws simply "gives employees the right to be free riders—to benefit from collective bargaining without paying for it."[24][25] Benefits the dissenting union members would receive despite not paying dues also include representation during arbitration proceedings.[26] In Abood v. Detroit BoE, the Supreme Court of the United States permitted public-sector unions to charge non-members agency fees so that employees in the public sector could be required to pay for the costs of representation, even as they opted not to be a member, as long as these fees are not spent on the union's political or ideological agenda. This decision was reversed, however, in Janus v. AFSCME, with the Supreme Court ruling that such fees violate the First Amendment in the case of public-sector unions, arguing that all bargaining by a public-sector union can be considered political activity.
Freedom of contract and association
Opponents argue that right-to-work laws restrict freedom of association, and limit the sorts of agreements that individuals acting collectively can make with their employer by prohibiting workers and employers from agreeing to contracts that include fair share fees. They also argue that American law imposes a duty of fair representation on unions, so non-members in right-to-work states can force unions to provide grievance services without compensation that are paid by union members.[27] Kahlenberg and Marvit also argue that, at least in efforts to pass a right-to-work law in Michigan, excluding 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.[24]
In December 2012,
Studies of economic effect
Many studies of the effect of right-to-work laws exist but they find substantially different results. Studies have found both "some positive effect on job growth" and no effect.
Economist Thomas Holmes argues that it is difficult to analyze right-to-work laws by comparing states because of other similarities between states that have passed these laws. For instance, right-to-work states often have some strong pro-business policies, making it difficult to isolate the effect of right-to-work laws.[33] 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% greater than that in the non-right-to-work states.[34] Given the study design, Holmes writes that "my results do not say that it is right-to-work laws that matter, but rather that the 'pro-business package' offered by right-to-work states seems to matter."[35] Moreover, as noted by Kevin Drum and others,[36] this result may reflect business relocation rather than an overall enhancement of economic growth since, as Drum writes, "businesses prefer locating in states where costs are low and rules are lax".[37]
Polling
In January 2012, in the immediate aftermath of passage of Indiana's right-to-work law, a Rasmussen Reports[38] telephone survey found that 74% of likely voters disagreed with the question "Should workers who do not belong to a union be required by law to pay union dues if the company they work for is unionized?" but found that "most also don't think a non-union worker should enjoy benefits negotiated by the union."[39]
In January through March 2013, 43% of those polled believed that the law would help Michigan's economy, while 41% believed that it would hurt.[40][41]
Political support
In 2012, President Barack Obama opposed right-to-work legislation in Michigan.[42] In 2017, Republican members of Congress introduced legislation for a national right-to-work law.[43]
U.S. states with right-to-work laws
The following 26 states have right-to-work laws:[44][45]
- Alabama (adopted 1953, Constitution 2016)
- Arizona (Constitution, adopted 1946)[46]
- Arkansas (Constitution, adopted 1947)
- Florida (Constitution, adopted 1944, revised 1968)[47]
- Georgia (adopted 1947)
- Idaho (adopted 1985)[48]
- Indiana[49] (adopted 2012)
- Iowa (adopted 1947)
- Kansas (Constitution, adopted 1958)
- Kentucky (adopted 2017)
- Louisiana (adopted 1976)
- 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[50] (adopted 1954)
- South Dakota (adopted 1946)
- Tennessee (adopted 1947, Constitution 2022)
- Texas[51] (adopted 1947, revised 1993)
- Utah (adopted 1955)
- Virginia (adopted 1947)
- West Virginia (adopted 2016)[52][53]
- Wisconsin (adopted 2015)
- Wyoming (adopted 1963)
The territory of Guam also has right-to-work laws.[54]
Ohio allows employees to opt out from joining a union, but unions are allowed to charge a typically smaller fee for employees that opted out.[55]
Local or repealed laws
Some states had right-to-work laws in the past, but repealed them or had them declared invalid. There are also some counties and municipalities located in states without right-to-work laws that have passed local laws to ban union security agreements.
Delaware
Seaford passed a right-to-work ordinance in 2018, despite the State Solicitor disputing the authority of local governments to do so under Delaware law.[56][57] Later that year, the Delaware General Assembly blocked the municipal ordinance.[58]
Illinois
In a 2022 referendum, voters in Illinois approved a state constitutional amendment establishing a right to collective bargaining. The amendment also prevents any future state legislature or local government from passing a right-to-work law.[63]
Indiana
Before its passage in 2012, the Republican-controlled Indiana General Assembly passed a right-to-work bill in 1957, which led to the Democratic takeover of Indiana's Governor's Mansion and General Assembly in the coming elections, and eventually, the new Democrat-controlled legislature repealing the right-to-work law in 1965.[64] Right-to-work was subsequently reenacted in 2012.[49]
Kentucky
On November 18, 2016, the
Michigan
Michigan adopted a right-to-work bill in 2012.[66] After Democrats gained a trifecta in 2023, the legislature passed a bill repealing the right-to-work law, which was subsequently signed into law by Governor Whitmer and took effect in 2024.[67]
Missouri
The legislature passed a right-to-work bill in 2017, but the law was defeated in a 2018 referendum before it could take effect.[68][69][70][71]
New Hampshire
New Hampshire adopted a right-to-work bill in 1947, but it was repealed in 1949 by the state legislature and governor.[72]
In 2017, a proposed right to work bill was defeated in the New Hampshire House of Representatives 200–177.[73] In 2021, the same bill was reintroduced but again defeated in the House of Representatives 199–175.[74]
New Mexico
New Mexico law previously did not explicitly prohibit nor allow mandatory union membership as a condition of employment at the statewide level, thereby leaving it up to local jurisdictions to establish their own right-to-work policies. Several counties, notably
See also
- At-will employment
- Labor unions in the United States
- Union affiliation by U.S. state
- United States labor law
References
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- ^ Campbell, Simon. "Right-to-Work vs Forced Unionism". StopTeacherStrikes, Inc. Retrieved November 14, 2012.
Fair share is compulsory dues. A non-union employee is forced to financially support an organization they did not vote for, in order to receive monopoly representation they have no choice over. It is financial coercion and a violation of freedom of choice. Money is forcibly withheld from non-union employees' paychecks and sent to a private organization. When an agency-shop agreement exists in a school district or county, every employee must pay dues to the union as a condition of their employment. They must pay-up or leave. Should anyone's ability to get or keep a job depend on whether they pay dues to a union? Non-union teachers have struggled in court to try and stop their forced dues from being used for political activity by the union.
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Justice, Diana (June 1, 2003). "Adventist Labor Unions". GleanerNow. Retrieved November 25, 2016.
"Lt 26, 1903 - Ellen G. White Writings". text.egwwritings.org. Retrieved November 25, 2016. - ^ Rae, La (August 1, 1998). "Improvement #3: Remove Union Security Clauses [Mackinac Center]". Mackinac.org. Retrieved May 2, 2015.
- ^ "Use of Dues for Politics". Center for Union Facts. Retrieved May 4, 2016.
- ^ "How do I cut off the use of my dues for politics and other nonbargaining activities?". National Right to Work Legal Defense Foundation. Retrieved May 4, 2016.
- ^ Gregory, David L. (1997–1998). "Contesting Union-Imposed Fees: Must Arbitration Precede Litigation (97-428)". Preview U.S. Sup. Ct. Cas. 1997−1998: 392. Retrieved May 19, 2016.
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Currently, 27 states and Guam have laws allowing employees in private-sector unionized workplaces to opt out of union membership and union fees.
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Although Ohio is part of America's "Rust Belt," with a long history of labor organizations, the state has adopted a very limited right-to-work law. Specifically, the law states that union membership or non-membership employment conditions are "contrary to public policy and void." So employees are not required to join a union.
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- ^ Kevin S. Held (August 7, 2018). "Right-to-work overturned as Prop A fails". KTVI. Retrieved October 1, 2018.
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- ^ Goth, Brenna (September 20, 2018). "Local Right-to-Work Rules Sweep New Mexico Counties". www.bna.com. Archived from the original on September 20, 2018. Retrieved March 30, 2019.
- ^ Chief, Dan Boyd | Journal Capitol Bureau (January 30, 2019). "Bill would ban local 'right-to-work' laws". www.abqjournal.com. Retrieved March 30, 2019.
- ^ "AFP-NM: Hang Ten". Americans for Prosperity. January 22, 2019. Retrieved March 30, 2019.
- ^ "AFP: McKinley Moves on Right-to-Work". Americans for Prosperity. January 4, 2019. Retrieved March 30, 2019.
- ^ "Lujan Grisham signs bill invalidating counties' right-to-work laws". March 28, 2019. Retrieved March 29, 2019.
- ^ The Stunning Workers' Victory in New Mexico That You Haven't Heard About, The SE Times, December 22, 2020
- ^ Community Workforce Agreement Passed in New Mexico’s Largest County; ABC Advocates Repeal Associated Builders and Contractors, September 23, 2020
- ^ Albuquerque Code of Ordinances §5-5-11 (H) Project Labor Agreements, Retrieved April 4, 2022
Further reading
- Garcia, R. J. (2019). "Right-to-Work Laws: Ideology and Impact". ISSN 1550-3631.