So, What's All The Fuss About "Right to Work" Legislation?
Employers often remark that their state is a "right to work" state, or lament that it is not, and assume that such a law is a magic talisman that would, somehow, insulate them from unions.
United States
Employment and HR
Employers often remark that their state is a "right to
work" state, or lament that it is not, and assume that such a
law is a magic talisman that would, somehow, insulate them from
unions. Perhaps they have good reason to believe this since
unions attack such legislation with a vigor that would invoke
memories of the Pinkerton's suppressing nascent union
organizing at the turn of the 20th Century. But, it
seems that few employers understand the meaning of the term
"right to work" or the purpose of such legislation.
Let's start at the
beginning. So-called "right to work" laws do not
give anyone the right to work. And, such laws do not assure
that employees have the right to refuse to join a union. Nor
do such laws somehow protect employers from union organizing
efforts. In the private sector (i.e., non-government
employers) the right to form or join unions, or not, is governed
exclusively by federal law – the Labor Management
Relations Act of 1947 (the "LMRA" also referred to as the
Taft-Hartley Act). This law amended the original statute, the
National Labor Relations Act of 1935 (also known as the Wagner
Act). As a result, for the most part, states do not have the
authority to pass legislation that regulates labor unions or the
collective bargaining process in the private sector.
Nearly all labor agreements
provide a method by which the union can require the employees it
represents to either join the union or to pay dues and fees for its
representational services. Typically, unions bargain for a
"union security" provision that includes "dues check
off," that is collection of dues and fees by the employer
through payroll deductions and remittance of the funds to the
union. The types of union security agreements that are
permissible and the ways in which unions may enforce those
provisions – including insisting that recalcitrant
employees be discharged – are governed by federal labor
law.
An exception to the rule of
federal labor supremacy that is expressly permitted by the Labor
Management Relations Act relates to the ability of the states to
legislate on the subject of the collection of union
dues. Section 14(b) of the LMRA expressly allows states to
pass laws restricting or outlawing union security agreements that
would otherwise be permitted under federal law. Essentially,
this means that states may outlaw "union shop" or
"agency shop" or "maintenance of membership"
agreements. These types of provisions require that employees
either become or remain members of a union or that they maintain
"financial core membership" and pays dues or pay
"services fees" as a condition of continuing
employment.
The states may not, however,
legislate on other aspects of union security agreements, nor may
they create arrangements that are not sanctioned under federal
law. More importantly, this limited role for the states allows
them only to outlaw certain types of union security provisions;
they may not prohibit union hiring halls or dues check off
provisions. And, a state's right to work law does not
follow the work; if an employer is located in a right to work state
sends its employees to a non-right to work state to perform the
work, the law of the state in which the work is performed
applies.
If all that a right to work
provision means is that employees cannot be compelled to join a
union or to support it financially, why is everyone so intrigued by
this type of law? There may be no single answer, but here are
a few reasons that may influence employers and unions when framing
the debate. First, the phrase "right to work" sounds
good and many individuals assume that it guarantees them the right
to obtain a job on their own terms. Likewise, some employers
believe that the terms means that they can make employment
decisions without government-imposed restrictions. In fact,
the term "right to work" merely affords employees a legal
basis to refuse to join a union or to financially support unions
and protects them against discharge for that refusal. But,
today, with less than 10 percent of the private sector civilian
workforce represented by labor unions, one may wonder why this
topic engenders such fascination among employers.
Second, right to work laws do not
prohibit union activity and they do not afford employers protection
against union organizing efforts. While it is true that many
of the 22 states that have right to work laws are located in the
south and western portions of the United States that have
relatively low percentages of union-represented employees, it would
be difficult to conclude that right to work laws are solely
responsible for that situation. In the five-state area that
includes Minnesota, Wisconsin, Iowa, North Dakota and South Dakota,
only Minnesota and Wisconsin do not have right to work
laws. However, it would be fair to say that right to work laws
make it more difficult for unions to persuade employees to join or
financially support them, and that is why such laws are opposed by
unions.
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