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Right-to-work law

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In the context oflabor law in the United States,the termright-to-work lawsrefers to state laws that prohibitunion security agreementsbetween employers andlabor unions.Such agreements can be incorporated into union contracts to require employees who are not union members to contribute to the costs of union representation. Unlike theright to workdefinition as ahuman rightininternational law,U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from being a member of alabor union.

The 1947 federalTaft–Hartley Actgoverningprivate sectoremployment prohibits the "closed shop" in which employees are required to be members of a union as a condition of employment, but allows theunion shopor "agency shop" in which employees pay a fee for the cost of representation without joining the union.[1]Individual U.S. states set their own policies for state and local government employees (i.e. public sector employees). Twenty-eight states have right-to-work policies (either bystatutesor byconstitutionalprovision).[2][3]In 2018, the U.S. Supreme Court ruled that agency shop arrangements forpublic sector employeeswere unconstitutional in the caseJanus v. AFSCME.

History

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Origins

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The original use of the termright to workwas coined by French socialist leaderLouis Blancbefore 1848.[4]According to theAmerican Enterprise Institute,the modern usage of the termright to workwas coined byDallas Morning Newseditorial writer William Ruggles in 1941.[5]

According toPandoDaily,the modern term was coined byVance Muse,aRepublican Partyoperative 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 theFirst Red Scare.[6]Muse usedracial segregationistarguments in advocating for anti-union laws.[7][8][6][9][10]

According toSlate,right-to-work laws are derived from legislation forbidding unions from forcing strikes on workers, as well as from legal principles such asfreedom of contract,which sought to prevent passage of laws regulating workplace conditions.[11]

Wagner Act (1935)

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

  • Aclosed 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.
  • Aunion shop,which allows for hiring non-union employees, provided that the employees then join the union within a certain period.
  • Anagency shop,in which employees must pay the equivalent of the cost of union representation, but need not formally join the union.
  • Anopen 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 theNational Labor Relations Board,which had existed since 1933, with overseeing the rules.

Taft–Hartley Act (1947)

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In 1947, theU.S. Congresspassed theLabor Management Relations Act of 1947,generally known as the Taft–Hartley Act, over PresidentHarry S. Truman's veto. The act 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 notlocal 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 aright-to-work state.

Current status

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The federal government operates underopen shoprules 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 theNational 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

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Rights of dissenting minority and due process

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The first arguments concerning the right to work centered on the rights of a dissenting minority with respect to an opposing majoritarian collective bargain. PresidentFranklin Roosevelt'sNew Dealhad prompted manyU.S. Supreme Courtchallenges, including those regarding the constitutionality of theNational Industry Recovery Act(NIRA) of 1933. In 1936, as a part of its ruling inCarter v. Carter Coal Co.the Court ruled against mandatorycollective bargaining,stating:[16]

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 thedue processclause of theFifth Amendment,that it is unnecessary to do more than refer to decisions of this Court which foreclose the question.

Freedom of association

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Besides the Supreme Court, other proponents of right-to-work laws also point to theU.S. Constitutionand the right tofreedom of association.They argue that workers should both be free to join unions or to refrain, and thus, sometimes refer to states without right-to-work laws 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 offreedom of choice.An opponent to the union bargain is forced to financially support an organization for which they did not vote in order to receive monopoly representation for which they have no choice.[17][citation needed]

TheSeventh-day Adventist Churchdiscourages the joining of unions,[18]citing the writings ofEllen 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

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Proponents such as theMackinac Center for Public Policycontend 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 underunion security agreementcontracts.[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 thedirect support professionalworkforce.

Political contributions

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Right-to-work proponents, including theCenter 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 ofNational Right to Work Legal Defense FoundationinCommunications 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]Beckapplies only to unions in the private sector, given agency fees were struck down for public-sector unions inJanus v. AFSCMEin 2018.

Free riders

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Opponents, such asRichard Kahlenberg,[2][23]have argued that right-to-work laws simply "gives employees the right to befree 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]InAbood v. Detroit BoE,theSupreme Court of the United Statespermitted public-sector unions to charge non-membersagency feesso 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, inJanus v. AFSCME,with the Supreme Court ruling that such fees violate theFirst Amendmentin 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

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Opponents argue that right-to-work laws restrictfreedom 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 aduty of fair representationon 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,libertarianwriterJ. D. Tuccillewrote inReason:"I consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violatefreedom of contractandassociation.... 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. "[28]

Studies of economic effect

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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.[29]A 2019 paper in theAmerican Economic Reviewby economists fromMIT,Stanford,and theU.S. Census Bureau,which surveyed 35,000 U.S. manufacturing plants, found that "the business environment, as measured by right-to-work laws, boosts incentive management practices."[30]According to a 2020 study published in theAmerican Journal of Sociology,right-to-work laws lead to greatereconomic inequalityby indirectly reducing the power of labor unions.[31]Looking at the growth of states in the Southeast following World War II, economistTim Bartiksays that while these states 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."[32]

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 byKevin Drumand 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

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In January 2012, in the immediate aftermath of passage of Indiana's right-to-work law, aRasmussen 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

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In 2012, PresidentBarack Obamaopposed 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

[edit]
Right-to-work law
No right-to-work law

As of May 2024, the following 26 states have right-to-work laws:[44][45]

The territory ofGuamalso has right-to-work laws.[54]

Ohioallows 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

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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

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Seafordpassed 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, theDelaware General Assemblyblocked the municipal ordinance.[58]

Illinois

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Lincolnshirepassed a local right-to-work ordinance, but it was struck down by theU.S. Seventh Circuit Court of Appeals.[59]An appeal to theU.S. Supreme Courtresulted in the case beingvacatedas beingmootbecause in the intervening period Illinois had passed the Illinois Collective Bargaining Freedom Act to invalidate such local ordinances.[60][61][62]

In a 2022referendum,voters in Illinois approved a state constitutional amendment establishing a right tocollective bargaining.The amendment also prevents any future state legislature or local government from passing a right-to-work law.[63]

Indiana

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Before its passage in 2012, the Republican-controlledIndiana General Assemblypassed 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 Democratic-controlled legislature repealing the right-to-work law in 1965.[64]Right-to-work was subsequently reenacted in 2012.[49]

Kentucky

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On November 18, 2016, theU.S. Sixth Circuit Court of Appealsupheld the right of local governments to enact local right-to-work laws inKentucky.Kentucky had 12 local ordinances. A statewide law was subsequently enacted in 2017.[65]

Michigan

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Michigan adopted a right-to-work bill in 2012.[66]After Democrats gained atrifectain 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

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Thelegislaturepassed a right-to-work bill in 2017, but the law was defeated in a 2018referendumbefore it could take effect.[68][69][70][71]

New Hampshire

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New Hampshireadopted a right-to-work bill in 1947, but it was repealed in 1949 by thestate legislatureandgovernor.[72]

In 2017, a proposed right to work bill was defeated in theNew Hampshire House of Representatives200–177.[73]In 2021, the same bill was reintroduced but again defeated in the House of Representatives 199–175.[74]

New Mexico

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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, notablyChaves,Eddy,Lea,Lincoln,McKinley,Otero,Roosevelt,Sandoval,San Juan,andSierracounties, in addition toRuidoso villageadopted such laws.[75][76][77][78][79]In 2019, theNew Mexico Legislatureapproved legislation that prohibits local right-to-work laws and further states that union membership and the payment of union dues may be required as a condition of employment in workplaces subject to a collective bargaining agreement; it was signed by governorMichelle Lujan Grisham.[80]In 2020, New Mexico's legislature passed House Bill 364 that authorizes and promotes the use ofcard checkprotocols for workers considering organizing into a labor union.[81]New Mexico does not currently requireProject Labor Agreementsfor state-sponsored projects, but some local jurisdictions (notablyBernalillo Countyand theCity of Albuquerque) have ordinances in place requiring Project Labor Agreements for locally-sponsored projects that exceed specified dollar-value thresholds.[82][83]

See also

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References

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  1. ^Baird, Charles W. (June 1998). "Right to work before and after 14(b)".Journal of Labor Research.19(3): 471–493.doi:10.1007/s12122-998-1042-y.S2CID153369005.ProQuest214005215.
  2. ^ab"The South Carolina Governance Project — Interest Groups in South Carolina,"Center for Governmental Services, Institute for Public Service and Policy Research,University of South Carolina,Accessed July 6, 2007.
    Dinan, Elizabeth (January 14, 2011)."N.H. Rep. proposes right to work law".Seacoast Online.RetrievedDecember 11,2012.
  3. ^Miller, Berkeley; Canak, William (1991). "From 'Porkchoppers' to 'Lambchoppers': The Passage of Florida's Public Employee Relations Act".Industrial and Labor Relations Review.44(2): 349–66.doi:10.2307/2524814.JSTOR2524814.
    Partridge, Dane M. (1997). "Virginia's New Ban on Public Employee Bargaining: A Case Study of Unions, Business, and Political Competition".Employee Responsibilities and Rights Journal.10(2): 127–39.doi:10.1023/A:1025657412651.S2CID151081867.
    Canak, William; Miller, Berkeley (1990). "Gumbo Politics: Unions, Business, and Louisiana Right-to-Work Legislation".Industrial and Labor Relations Review.43(2): 258–71.doi:10.2307/2523703.JSTOR2523703.
  4. ^Robertson, Priscilla Smith (1952).Revolutions of 1848: A Social History.Princeton University Press. p.69.ISBN9780691007564.Right to work.
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  6. ^abAmes, Mark (March 13, 2015)."As" Right To Work "becomes law in Wisconsin, a reminder of its inventor's racist past".PandoDaily.RetrievedFebruary 11,2018.
  7. ^Colby, Gerard (1984). "Decade of Despair".Du Pont Dynasty: Behind the Nylon Curtain.Secaucus: Lyle Stewart.
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  9. ^Muse, Vance (1986). "Making Peace with Grandfather".Texas Monthly.14(2): 142.
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  12. ^Roof, Tracy (2011).American Labor, Congress, and the Welfare State, 1935-2010.JHU Press. p. 73.ISBN9781421400877.
  13. ^NFL Collective Bargaining Agreement 2006-2012:Art. V, Sec. 1.
  14. ^Oil, Chemical and Atomic Workers, Int'l Union v. Mobil Oil Corp.,426 U.S. 407, 414 (1976) (Marshall, J.).
  15. ^Orr v. National Football League Players Ass'n,145 L.R.R.M. (BNA) 2224, 1993 WL 604063 (Va.Cir.Ct. 1993).
  16. ^Carter v. Carter Coal Co., 298 U. S. 238, at 311 (1936).
  17. ^Campbell, Simon."Right-to-Work vs Forced Unionism".StopTeacherStrikes, Inc.RetrievedNovember 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.
  18. ^"What is the Adventist Church's stance on trade unions?".perspectives.adventist.org.October 4, 2016.RetrievedNovember 25,2016.
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  21. ^"How do I cut off the use of my dues for politics and other nonbargaining activities?".National Right to Work Legal Defense Foundation.RetrievedMay 4,2016.
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    Chicago Local Teachers Union v Hudson 475 U.S. 292. 310 (1986)
  23. ^Greenhouse, Steven (January 3, 2011)."States Seek Laws to Curb Power of Unions".The New York Times.
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  32. ^Evans, Gordon (December 10, 2012)."Upjohn Institute economist on right to work laws".WMUK.RetrievedFebruary 26,2017.
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  55. ^"Ohio Right to Work Laws".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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  63. ^O'Connor, John (November 16, 2022)."Illinois voters approve collective bargaining amendment".SF Gate.Associated Press.RetrievedNovember 18,2022.
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  80. ^"Lujan Grisham signs bill invalidating counties' right-to-work laws".March 28, 2019.RetrievedMarch 29,2019.
  81. ^The Stunning Workers' Victory in New Mexico That You Haven't Heard About, The SE Times, December 22, 2020
  82. ^Community Workforce Agreement Passed in New Mexico’s Largest County; ABC Advocates Repeal Associated Builders and Contractors, September 23, 2020
  83. ^Albuquerque Code of Ordinances §5-5-11 (H) Project Labor Agreements, Retrieved April 4, 2022

Further reading

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