Unions Step Up Attack on Right to Work Legislation

right-to-workFor decades, unions in America have asserted what they see as their right to extract dues from non-joining workers. Lately, they’ve gotten creative in challenging state Right to Work laws that protect such workers. Earlier this month they lost a ballot initiative in South Dakota to overturn that state’s longstanding law. In Wisconsin the story was different. Union leaders persuaded a county judge in April to overturn a similar law enacted last year at the urging of Gov. Scott Walker, though the State did manage to obtain a hold on the order. And in West Virginia, labor chieftains in August won an injunction to suspend Right to Work legislation passed months earlier over Gov. Earl Ray Tomblin’s veto. All this carries extra significance in the wake of the September death of Reed Larson, long the embodiment of the Right to Work principle.

Unions in this country often claim that employers routinely deny workers the basic right to organize. In reality, labor organizations enjoy a variety of monopoly privileges, one of which is Section 8(a)(3) of the National Labor Relations Act of 1935, which authorizes a union to insert a “security clause” into a collective bargaining agreement. These clauses effectively compel a private-sector employer to fire any employee who refuses to join the union or pay partial dues (“agency fees”) in lieu of joining. But this power has limits. Section 14(b) of the Taft-Hartley Act, passed by Congress in 1947 over President Truman’s veto, authorizes states to pass Right to Work laws that ban workplace security clauses. In so doing, they protect represented employees from being forced to fill union coffers. Unions oppose these laws, knowing they inhibit their institutional power. That’s why they pour substantial time and money into blocking Right to Work bills and repealing Right to Work laws.

Only several years ago, 22 states had Right to Work legislation, whether by statute or constitution, on the books. It appeared doubtful that the number would rise any further. Between 1986 and 2012 Right to Work supporters gained ground in only one state, Oklahoma (in 2001), spending some two years in court after that fending off union challenges. Since then, advocates have scored four victories in rapid succession. In 2012, they secured passage of Right to Work bills in Indiana and Michigan, the latter an organized labor stronghold. In March 2015, Wisconsin created Right to Work legislation. And this past February, West Virginia became the nation’s 26th state to enact such a law. Unions and their legislative allies this year have responded with campaigns in three states to block or reverse the Right to Work trend.

South Dakota. One of the very first states to adopt a Right to Work law, South Dakota voters recently faced the possibility of repealing the law without even knowing it. On the November 8 ballot was an initiative known as Measure 23. This proposal, which made no mention of the Right to Work, stated in full: “Notwithstanding any other provisions of law, an organization, corporate or nonprofit, has the right to charge a fee for any service provided by the organization.” The proposal, and with good reason, omitted mentioning that it would invalidate the Right to Work. Unions and their allies donated $600,000 to an ad hoc group, South Dakotans for Fairness. A majority of voters, however, saw through the deception, rejecting the measure by a whopping 80 percent to 20 percent.

Wisconsin. Passage of a Right to Work law in March 2015 was one of the highlights of the tenure of current Republican Governor Scott Walker. Labor activists have been trying to reverse it by taking their case to court. For the time being, they hold the upper hand. On April 8, Dane County Circuit Court Judge C. William Foust struck down the law. Judge Foust employed some novel judicial reasoning. He argued that a Right to Work law is an unconstitutional taking because it compels unions to spend extra money on representation without compensation. In agreeing with the three unions that brought forth the suit, Judge Foust accepted the common union claim that represented employees who opt out of paying dues are “free riders.” He also asserted that the law endangered the existence of unions in Wisconsin – as if it were a moral and legal duty of government to prop up unions that can’t win worker support. One wonders if Foust would have made a similar argument regarding charities. Wisconsin Attorney General Brad Schimel promptly appealed the ruling, winning a temporary reprieve on May 24. If the appeal makes its way to the State Supreme Court, which has a 5-2 Republican majority, the law is likely to be upheld.

West Virginia. Back in February, the West Virginia legislature did the impossible: It passed a Right to Work law, formally known as the Workplace Freedom Act. Moreover, it did so over the veto of Democratic Governor Earl Ray Tomblin. Unions, particularly the powerful United Mine Workers, were stung. And they went to court. This past August 10 they won a major victory. Kanawha County Circuit Court Judge Jennifer Bailey granted them a request for an injunction suspending the law pending full review. The state chapter of the AFL-CIO, along with the Teamsters and other unions, had filed a petition for review on June 27. West Virginia’s ethically challenged Teamster leader, Ken Hall, remarked in August: “We applaud Judge Bailey’s ruling. This legislation deserves careful consideration by the court. The language of the bill – as it was written, amended and enacted into law – has significant issues that are in violation of the West Virginia Constitution.”

Hall and other union leaders, plus their allies, as could have been expected, rationalize their opposition to the Right to Work with the “free rider” analogy. Since workers covered by a union contract receive union-negotiated services, they argue, it is only fair to force these workers to pay for those services or face termination. Since the NLRA authorizes unions the right of exclusive representation, moreover, the law is logically sound in granting unions the right to exact payments from covered workers, whether members or not. Judge Foust, for example, put it this way in siding with Wisconsin unions: “Labor is a commodity that can be bought and sold. A doctor, a telephone company, a mechanic – all would be shocked to find they do not own the services they perform…Unions are no different; they have legally protectable property interest in the services they perform for their members and nonmembers.”

This is precisely how not to frame the issue. The notion that workers do not have a right to opt out of financial contribution to a union falls short on two grounds. First, in paying dues, workers bear costs as well as receive benefits. Many might see membership as leading to more of the former than the latter. They, and nobody else, should decide if they are getting their money’s worth. Second, unions voluntarily represent non-members, not just members. Nobody is forcing them to represent those who decline to join. This is a matter of Supreme Court precedent. In Retail Clerks v. Lion Dry Goods (1962), Justice William Brennan, writing for the majority, argued that the National Labor Relations Act’s protections are “not limited to labor organizations which are entitled to recognition as exclusive bargaining agents of employees…‘Members only’ contracts have long been recognized.” Union officials are reluctant to exercise their right to pursue members-only contracts because they know such action might reduce revenues and seniority privileges. In light of these considerations, the term “free riders,” as applied to dissenters, is a misnomer. A more accurate term would be “captive passengers.”

The current battles carry a special symbolic weight in the wake of the passing this September 17 of Reed Larson, long the nation’s foremost figure associated with the Right to Work cause. Born in 1922, Larson, a native of Kansas, trained as an engineer following wartime military service, didn’t plan to be an activist. But while working for a private firm targeted by union organizing, he grew increasingly aware of the dangers of compulsory unionism. He would spearhead a successful effort to amend the Kansas Constitution in 1958 to include a Right to Work provision. As similar initiatives in other states stalled that year, the fledgling National Right to Work Committee took notice. The following year Larson arrived at the Springfield, Va.-based organization to become executive vice president; he soon would become president. For many years he led a ceaseless and often thankless effort to prevent union officials and their allies in Congress from repealing Section 14(b) of the Taft-Hartley Act and to expand Right to Work coverage. In 1968, believing legislative approaches to protecting worker freedom were insufficient, Larson founded a sister organization, the National Right to Work Legal Defense Foundation, to provide free representation on behalf of workers ordered to pay union dues in order to keep their jobs. He retired in his early 80s in 2003, handing the mantle of leadership to the highly capable Mark Mix. Right to Work supporters across the nation, especially in Wisconsin and West Virginia, could do little better right now than to rededicate their efforts to the legacy of Reed Larson.