United States: Congress Considers National Right-To-Work Bill: Beginning Of The End For Unions?

Organized labor in the United States has experienced a steady decline in the last several decades, from a peak union membership rate of 35% during the mid-1950s to 10.7% in the year 2016.  For the private sector, the decline has been even more precipitous:  a mere 6.4% of private sector workers in the U.S. were members of a union in 2016.

On February 1, 2017, Iowa Congressman Steve King (R-IA) and Joe Wilson (R-SC) introduced a bill into the U.S. House of Representatives that would likely deal a crippling blow to already weakened organized labor in the U.S.:  the National Right-to-Work Act (H.R. 825).  The full text of the bill is available here.  A Senate counterpart will be introduced shortly.

Impact of National Right-to-Work Act

If enacted, the National Right-to-Work Act would amend the National Labor Relations Act ("NLRA") and Railway Labor Act ("RLA") to prohibit, on a national scale, any union contract requirement that employees pay union dues as a condition of employment.  The National Right-to-Work Act would likely be devastating to organized labor, drastically diminishing union revenues and unionization rates, particularly in states which already have low union membership and less historical support for unions.  Studies show there is a direct correlation between the passage of right-to-work laws and diminished union membership.  According to the Bureau of Labor Statistics, of the 27 states with union membership below the national average in 2016, almost all are right-to-work states, dropping as low as 1.6% in South Carolina.

Explanation of Right-to-Work

Right-to-work laws are becoming more common on the state level.  Indeed, the majority of states in the U.S. are right-to-work states.  While the details of such legislation vary from one jurisdiction to the next, such laws' main focus is to prohibit "union security clauses" – i.e., union contract provisions requiring employees to pay union dues as a condition of employment.

This means that employees in right-to-work states are free to choose whether to pay union dues or not, even if they are part of a unionized workforce and receive the same benefits and protections of their collective bargaining agreement as their dues-paying coworkers.  Employees in right-to-work states can join a union if they wish, but their employers cannot force them to pay union dues to get or keep their jobs.

Some state-level right-to-work laws provide for civil enforcement with damages and injunctive relief, and some even provide for criminal penalties.

History of Right-to-Work

Right-to-work laws began cropping up in the 1940s, particularly after the Taft-Hartley Act of 1947 amended the NLRA to allow states to pass laws barring mandatory union dues as a condition of employment.  After an initial flurry of states passing right-to-work laws in the 1940s, the trend slowed until recently when the movement picked up momentum again, with six states passing right-to-work laws in the last six years alone.

As of the publication of this article, 28 states have passed right-to-work laws:  Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.  New Hampshire looks to be headed in the same direction, and would be the first state in the Northeast to pass such a law.

Prior efforts to enact right-to-work legislation on a national scale stood little chance of success in Congress, and would almost certainly have been subject to President Obama's veto.  With Republicans controlling the House and the Senate, and President Trump (who has declared his support for right-to-work) in the White House, right-to-work proponents believe this bill finally may have the requisite support to succeed.

Arguments For and Against

Proponents of right-to-work laws including the National Right-to-Work Act argue that employees should not be forced to pay for union memberships they do not want, and that requiring such payment as a condition of employment is unfair and detrimental to both employers and employees.  Proponents argue that right-to-work laws attract employers to right-to-work states, thereby creating jobs for workers.

Opponents argue that right-to-work laws lead to lower wages and diminished benefits and working conditions for employees.  They argue that right-to-work creates a free-rider problem, whereby employees receive the benefits and protections of the union contract without having to pay their share of dues to the union which represented them in negotiating that contract.  Some opponents also anticipate that passage of the law would provoke organized labor to employ more aggressive tactics to gain leverage in labor negotiations and convince employees to pay dues.

Conclusion

Sheppard Mullin will continue to monitor the bill's status.  If the National Right-to-Work Act passes, unionized workplaces in all states will likely be affected.  Please do not hesitate to contact us with any questions about this bill or its potential effect on your business.  Sheppard Mullin attorneys have a wealth of experience with traditional labor law, possess a strong government relations presence in Washington, D.C., and we are available to provide advice and assistance on this developing issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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