A "right-to-work" law is a statute in the United States that prohibits union security agreements, or agreements between labor unions and employers, 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, or requiring employees to pay a fee to unions that have negotiated the labor contract all the employees work under.
Right-to-work provisions (either by law or by constitutional provision) exist in 24 U.S. states, mostly in the southern and western United States, but also including, as of 2012, the midwestern states of Michigan and Indiana. Business interests represented by the Chamber of Commerce have lobbied extensively to pass right-to-work legislation. Such laws are allowed under the 1947 federal Taft–Hartley Act. A further distinction is often made within the law between those 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.
The Taft–Hartley Act (1947)
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Before Congress passed the Taft–Hartley Act over President Harry S. Truman's veto in 1947, unions and employers covered by the National Labor Relations Act could lawfully agree to a closed shop, in which employees at unionized workplaces must be members of the union as a condition of employment. Before the Taft-Hartley amendments, 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, could also be fired even if the employee did not violate any of the employer's rules.
The Taft–Hartley Act outlawed the closed shop. The union shop rule, which required all new employees to join the union after a minimum period after their hire, is illegal in right-to-work states.
A similar arrangement to the union shop is the agency shop, under which employees must pay the equivalent of union dues, but need not formally join such union.
Section 14(b) of the Taft–Hartley Act goes further and 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. Under the open shop rule, an employee cannot be compelled to join or pay the equivalent of dues to a union, nor can the employee be fired if he joins the union. In other words, the employee has the right to work for a willing employer, regardless of whether or not he is a member or financial contributor to the union.
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), 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." Hence, players on professional sports teams in states with Right to Work laws are protected by those laws, and cannot be required to pay any portion of union dues as a condition of continued employment.
Twenty-six states and the District of Columbia do not have right-to-work laws.
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 1935, as a part of its ruling in Schechter Poultry Corp. v. United States the Court ruled against mandatory collective bargaining, stating: "[t]he effect, in respect to wages and hours, is to subject the dissenting minority... to the will of the stated majority... To ‘accept’ in these circumstances, is not to exercise 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." (However this and other findings in Schechter Poultry were overturned in later Court decisions.)
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."
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 fair share fees for collective bargaining expenses as a condition of employment under union security agreement contracts.
Some opponents (such as Richard Kahlenberg and Moshe Z. Marvit) have argued that while a wonderfully effective political slogan, "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". Khalenberg 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 more friendly to Republicans—from the law, belied claims that the law was simply an effort to improve Michigan's businesses climate, not to seek partisan advantage.
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 among non-union employees who find the union contract beneficial. Thus, union members may end up subsidizing non-union members. 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.
Critics from organized labor have argued since the late 1970s 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".
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.
In December 2012, an editorial in the libertarian publication 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. So I'm not cheerleading for the right-to-work law just passed in Michigan, which bans closed shops in which union membership is a condition of employment. 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."
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. 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. 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 wide-spread use of air conditioning and different modes of transportation that helped decentralize manufacturing".
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. 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". 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".
- In 2009, the unemployment rate was 1.0 percentage points lower in RTW states than states without the legislation. In RTW states, it was 8.6%, In other states it was 9.6%.
- 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."
- 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 pro-business periodical 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. 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. The 2012 editorial also stated that since 2001, compensation in right-to-work states had increased 4 times faster than in other states.
In Michigan in January through March 2013, a poll found that 43 percent of those polled said the law will help Michigan's economy, while 41 percent said it will hurt.
U.S. states with right-to-work laws
The following states (24) are right-to-work states:
- Arizona † (Constitution, 1912, State Constitution Article 25)
- Arkansas † (Constitution, 1947, Amendment 34)
- Florida † (Constitution, 1968, Article 1, Section 6)
- Indiana (State law, 2012)
- Kansas † (Constitution, 1958, Article 15, Section 12)
- Michigan (State law, 2012)
- Mississippi †
- Nebraska ††
- North Carolina
- North Dakota
- Oklahoma †
- South Carolina
- South Dakota
† An employee's right to work is established under the state Constitution, not under legislative action.
†† An employee's right to work is established under the state Constitution, and there is also a statute.
- Baird, Charles W. "Right to work before and after 14 (b)." Journal of Labor Research 19.3 (1998): 471-493.
- "Michigan passes 'right-to-work' legislation". BBC News. December 11, 2012.
- Schneider, Mary Beth; Sikich, Chris (February 1, 2012). "Indiana Gov. Daniels signs 'right to work' bill; protest winds through Super Bowl Village". The Indianapolis Star. Retrieved February 1, 2012.
- "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.
- 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. JSTOR 2524814.
- 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.
- 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. JSTOR 2523703.
- Roof, Tracy (2011). American Labor, Congress, and the Welfare State, 1935-2010. JHU Press. p. 73. ISBN 9781421400877.
- NFL Collective Bargaining Agreement 2006-2012: Art. V, Sec. 1.
- Oil, Chemical and Atomic Workers, Int'l Union v. Mobil Oil Corp., 426 U.S. 407, 414 (1976) (Marshall, J.).
- Orr v. National Football League Players Ass'n, 145 L.R.R.M. (BNA) 2224, 1993 WL 604063 (Va.Cir.Ct. 1993).
- Carter v. Carter Coal Co., 298 U. S. 238, at 311 (1936).
- 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.
- Improvement #3: Remove Union Security Clauses Mackinac Center for Public Policy
- "Right to Work" Isn't a Civil Right. But Unionizing Should Be| Richard D.Kahlenberg and Moshe Z. Marvit| December 13, 2012
- Gould, Elise; Shierholz, Heidi (2011). "The Compensation penalty of "right-to-work" laws"" (PDF). Retrieved 2012-12-11.
- Dinan, Elizabeth (January 14, 2011). "N.H. Rep. proposes right to work law". Seacoast Online. Retrieved 2012-12-11.
- Greenhouse, Steven (January 3, 2011). "States Seek Laws to Curb Power of Unions". The New York Times. Check date values in:
- "Examining the opposition's tangled web — the who's who in the right wing". The Machinist. International Association of Machinists and Aerospace Workers, AFL-CIO/CLC. October 1977. p. 4.
- http://www.uawlocal3520.org/right%20to%20workfliner.pdf[dead link] "Questions and Answers about the National Right to Work Committee and the National Right to Work Legal Defense Foundation," United Auto Workers, Accessed February 3, 2008.
- "Meet the billionaires behind No Rights At Work". 27 January 2013. Teamster Nation. Retrieved 14 February 2013.
- Studies mixed on right-to-work's impact| By Susan Samples| 12 December 2012
- Holmes, Thomas J. (1998). "The Effect of State Policies on the Location of Manufacturing: Evidence from State Borders". Journal of Political Economy 106 (4): 667–705. doi:10.1086/250026.
- Economic evidence mixed on "right to work" laws| By: Gordon Evans| Kalamazoo, Mi| 9 December 2012
- Barro, Robert (February 28, 2011). "Opinion: Unions vs. the Right to Work". Wall Street Journal. Retrieved 2012-12-11.
- Holmes, Thomas The Location of Industry: Do States’ Policies Matter?
- Drum, Kevin (2011-2-28) Unions and Growth Mother Jones
- Texas v. Ohio, "Texas is prospering while Ohio lags"| The Wall Street Journal| March 3, 2008| Accessed July 18, 2008.
- Vernuccio, Vincent; Lehman, Joseph G. (December 14, 2012). "Vernuccio and Lehman: An Inspiration and a Warning From Michigan". The Wall Street Journal. Retrieved December 18, 2012.
- "Florida Constitution". The Florida Legislature. Retrieved 2014-07-11.
- "South Carolina Code of Laws § 41-7-10".
- http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.101.htm Texas Labor Code, Section 101.052.
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