Is “Right to Work” About Freedom?

/ Jim Luke

It’s Rick Snyder’s incredible flip-flop here in Michigan on so-called “Right to Work” legislation and his claims that it’s about “freedom” that brings me back to blogging.  Lately I’ve been getting increased questions about what “Right to Work” really means.  So, let me try to cut through the Orwellian rhetoric and explain.

So called “Right to Work” laws have absolutely nothing to do with “freedom” for workers. The “freedom” talk is purely a made-up rhetorical lie intended to get gullible workers to support something that most likely is not in their personal best interest.  Supporters of  so-called “Right to Work” laws (RTW)  claim it’s about establishing the “freedom to not be forced to join a union”, that it’s about “freedom of association”.  But that is an absolute falsehood.  Forcing someone to join a union as a condition of employment is called a “closed shop” rules.  Ever since the 1948 Taft Hartley (a US law covering all states) “the closed shop” has been illegal. Let me repeat for clarity. Forcing someone to join a union as a conditon of employment has been illegal everywhere, including Michigan, since 1948.  RTW laws change nothing in this respect.

But Taft Hartley law also says that if a union is certified as bargaining representative, then the union must bargain on behalf of ALL employees, whether union members or not.  Further all employees are covered by the union-negotiated contract, whether members or not. A union becomes the certified bargaining representative by a vote of ALL employees at some point in time, with a majority necessary to cerify.  A union may be de-certified later by another majority vote of all employees (whether members or not).  Until the union is decertified, the non-member employees benefit from the contract and are covered by the contract.  If a union is certified to represent, non-members are not free to strike different deals or contracts.

Employees who choose to be union members pay dues.  In return for dues, members receive the benefits of bargaining, the contract, and due process representation. Members also get to vote on union leadership and maybe participate in social events put on by the union, depending on which union it is. Non-members do not get the social benefits or voting rights, but they DO get the benefit of the contract, bargaining, and due process.  In return, non-members do not pay “dues”. Rick Ungar in Forbes clarifies:

But did you know that Taft-Hartley further requires that the union be additionally obligated to provide non-members’ with virtually all the benefits of union membership even if that worker elects not to become a card-carrying union member?

By way of example, if a non-member employee is fired for a reason that the employee believes to constitute a wrongful termination, the union is obligated to represent the rights of that employee in the identical fashion as it would represent a union member improperly terminated. So rock solid is this obligation that should the non-union member employee be displeased with the quality of the fight the union has put forth on his or her behalf, that non-union member has the right to sue the union for failing to prosecute as good a defense as would be expected by a wrongfully terminated union member.

Obviously, the Taft Hartley law puts a burden on unions. A certified bargaining agent union must bargain on behalf of all workers, whether they are members or not.  That costs the union money and time.  Yet,the union may only collect “dues” from members.  Herein lies the difference between RTW states and the rest. The rest should properly be called “union shop” states.  In a “union shop” state such as Michigan was until yesterday (Dec 11, 20123), the certified union may charge “agency fees”, not “dues”, to non-member employees on whose behalf they bargain. Agency fees are required by law of non-member employees in union shop states. In RTW states, non-member employees do not have to pay agency fees. In RTW states, non-member employees are allowed to benefit from the contract and protections and bargaining power of the union without paying a dime to support the bargaining activities.  The agency fees are established in union shop states to reimburse the union for it’s costs of negotiating, bargaining, etc.  RTW laws are all about how much money gets paid to certified unions and have nothing to do with “freedom”.

How Much Are Dues vs. Agency Fees?  Enter the Supreme Court

For a few decades after passage of Taft Hartley in 1948, many unions set the agency fee at the same dollar amount per month as the dues.  Obviously this encourages membership since an employee faces a choice of same cost for non-membership vs membership, yet membership brings some marginal benefits beyond the bargaining and contract benefits.  But, a few decades ago (I forget exactly when – I think it was in the 1980’s), some non-members of unions in union shop states sued to not have to pay the agency fee, claiming a First Amendment free speech violation. The logic of their argument was essentially that:

  • union shop labor laws required non-members to pay agency fees to an organization, the union, of which they were not a member and with whom they may disagree politically
  • unions use some of their money for political “speech” purposes: campaign contributions, advertising, lobbying, etc.
  • Ergo, the laws were forcing the non-members to supoort political speech with which they disagreed and therefore should be considered unconstitutional under the US Constitution 1st Amendment.

Countering the non-member’s argument was the union position that the non-members benefit from the union’s activity (bargaining) and should be required to contribute their share to the costs.  If non-members were not required to monetarily support the union’s bargaining and other activities, then it would constitute an unfair burden on members (they would be forced to pay to provide union benefits to non-members) which is itself probably unconstitutional (see Beverly Mann about Article 1, Section 10)

The Supreme Court “split the baby” and developed a solution that acknowledged both sides.  The Supreme Court established that required agency fees are indeed constitutional (ie. “union shop” laws are constitutional).  But, it also said that requiring non-members to support political speech and activities with which they disagreed was not constitutional.  The solution lay in establishing that unions report the amounts they spend on political speech and adjust the agency fee to be some fraction of the dues.  In other words, if the dues for members were $40 per month and the union reported that 20% of it’s total expenses were for political speech activities, then the agency fee would have to be set at $32. This decision was one of a few public policy and economy changes that helped to reduce union influence in the political arena starting in the 1980’s.  There were other more significant ones such as the PATCO strike, but the Supreme Court decision did help reduce marginally some of the money and support unions could provide to union-friendly politicians.  The effect was most pronounced in private sector unions.

Indeed, the battle over RTW laws vs. union shops has nothing to do at all with “freedom for workers”.  It has everything to do with money for political campaigns and political activities.  Historically, most union political activities have been in support of Democratic candidates, but not always.  Republicans perceive they can gain a significant advantage and perhaps a permanent power majority if they can weaken unions and cut-off the political support unions provide to Democrats while simultaneously increasing their financial support from corporations and billionaires, neither of which face any limitations any more.  It is no accident that police unions are exempt from the new RTW law in Michigan.  Police unions such as the FOP can continue in Michigan to demand either dues or agency fees from all police officers.  Why?  Police unions have historically been the unions most likely to support Republican candidates, particularly for court judgeships.

NOTE: Despite continuing really heavy work duties, I am going to try to make posts in the next few days about “Whether and How RTW Laws Weaken Unions and Affect Workers” and “What the Evidence Shows on RTW Laws and Economic Growth”. 

8 thoughts on “Is “Right to Work” About Freedom?”

  2. I studied Political Economy in undergrad (Cal) and still love reading about it. This intersects nicely with my legal education as well. I’ve been reading your posts for a while now and love them. This felt very much like a Nate Silver/Moneyball analysis of politics. Thanks!

  3. In the Grand Rapids Press this morning (12/16/12), State Rep. Mike Shirkey (R-Clark Lake) stated: “Union leaders will often claim they must represent even those who don’t pay or join. This is another false narrative. Unions can negotiate contracts that legally allow them to only represent members. In fact, that’s how most union contracts were executed until the 1960s. And it’s how most union contracts are done today throughout the world. The ultimate irony: Unions may choose to not represent non-members, but workers are not free to choose to be non-members!”

    So is he blatantly lying to his constituents? Does he need to go and read the Taft Hartley law, or does he have a point? I can see that you have some knowledge in this respect and I would love to hear what you know so that I can be more informed in my conversations about this. Thank you!

    • Technically, Rep. Shirkey is not lying in the sense of stating a factual, legal untruth. However, he is suggesting a practical impossibility that is only hypothetically possible. It is analogous to suggesting that the income tax is completely voluntary and optional because, after all, nothing in federal law requires you to “have an income”. Of course, the practical realities of life require people to have incomes and therefore to incur the burden of the income tax. Similarly, a union which cannot or does represent all workers (i.e. doesn’t have “exclusive representation”), is not a union at all and is unable to bargain effectively at all. Indeed, employers are under no obligation to deal with such non-exclusive unions.

      On this aspect, the Taft Harley Law, although relevant, isn’t the major driver. It’s the established body of US Federal case law and court judgements.

      What Rep. Shirkey is referring to is the idea that a union and employer need not agree to an “exclusive bargaining agent” agreement. It is, theoretically, legal for a union to try only bargain on behalf of union members and allow non-members to “negotiate” individually with an employer, but in practice that can’t and doesn’t happen. It is tantamount to foregoing all of the bargaining power of the union voluntarily. It would be like you and your neighbor joining forces to “negotiate” lower prices from Wal-Mart that would only apply to the two of you. Ain’t going to happen. Economic incentives don’t work that way. To have non-exclusive contract like this, a union would have to represent only a minority of workers, which means the employer would simply ignore them, which it could do legally.

      However, an employer cannot legally ignore or refuse to bargain with a union that is established by majority vote of employees, i.e. becomes the certified bargaining agent. In this scenario, when a majority votes for representation, US Federal case law does establish that the union cannot refuse or discriminate against non-members. Indeed, non-members have the right to sue the union.

      A little more about this, including case law citations from the Indiana AFL-CIO:

      Employees Select a Union As Their “Exclusive” Representative in Dealing With Their Employer Because That’s the Only Way to Exercise Real Bargaining Power

      When private sector workers select a union to represent them, their union is their “exclusive” bargaining representative, see 29 U.S.C. 159(a) – meaning the employer can’t undermine the union and the workers by cutting individual special deals, pitting some workers against others, or unilaterally paying unequal compensation to people who are performing the same jobs. No individual “bargaining power” can top what workers through a union can exercise together – that’s why workers organize in the first place. As the Supreme Court explained long ago when it recognized that the right to organize is “fundamental,” workers have organized unions “out of the necessities of the situation,” including that “a single employee was helpless in dealing with an employer” and “union was essential to give laborers opportunity to deal on an equality with their employer.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937).

      At the same time, nothing in the law prevents private sector workers and an employer from privately agreeing that a union will represent only its own members. But this almost never happens, for three reasons. First and foremost, a private-sector employer has no legal obligation to recognize or deal with a union that doesn’t represent a majority of its workers. 29 U.S.C. §§ 158(a)(5), (d), 159(a). Second, employers are rarely willing to voluntarily recognize such a “minority” union, and never accept multiple minority unions representing the same kinds of workers in the same workplace. Third, even if an employer is willing to deal with a minority union, this is an impractical arrangement that inevitably enables only weak representation for the union’s members.

      A Union Must Represent Its Members and Non-Members Equally and Without Preference or Discrimination in Dealing With Their Employer

      A private sector union operates under a legally enforceable “duty of fair representation,” that is, the union must “fairly and equitably…represent all employees…, union and nonunion.” International Assn. of Machinists v. Street, 367 U.S. 740, 761 (1961). This means a union cannot discriminate or act arbitrarily toward any employee due to the nature of his relationship with the union, and all employees are equally entitled to the union’s fair and vigorous representation. All members and non-members must receive the fruits of the union’s bargaining – wages, benefits and all other rights and protections – and enjoy full access to the grievance and arbitration process that is established to redress adverse or improper actions by the employer. 29 U.S.C. § 158(b)(2); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 204 (1944); Bowman v. Tennessee Valley Authority, 744 F. 2d 1207, 1213-14 (6th Cir. 1984). This right to full and fair individual treatment by the union is legally enforceable in court and before the NLRB. Vaca v. Sipes, 386 U.S.171 (1967); Plumbers Local 32 v. NLRB, 50 F. 3d 29, 31-32 (D.C. Cir.), cert. denied, 516 U.S. 974 (1995).

  6. I don’t see an issue with RTW

    So the worker can still give money to the union and support it if it agrees with what it is doing, right? It gives the worker more choice on whether or not to support the union. I would assume non-members would support the union since they benefit anyway. All this means is that you aren’t essentially forced to support something that you may not wish to.

    What’s the big deal?

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