(MintPress) – Republican legislators in Madison have, as of recently, started to raise the prospect of establishing Wisconsin as a right-to-work state, despite assurance from Gov. Scott Walker (R-Wis.) that he will not pursue such legislation. Walker told the Associated Press that a right-to-work law would create instability and uncertainty among job creators.
“The last thing I want to do is create the sense of uncertainty out there,” Walker said.
Right-to-work laws — despite their misleading name — have little to do with gaining employment or creating job opportunities. They refer to legislation in regards to the way that “union shops” and “agency shops” are allowed to operate. In a right-to-work state, a company cannot compel an employee to join a union or pay union fees and cannot punish him for leaving the union. However, any collective bargaining benefits the employee would receive as an union member must also be extended to him as a non-union member.
This, on the surface, seems straightforward. But, on closer examination, things are not what they seem.
Prior to the passage of the Taft-Hartley Act of 1947, unions and employees — under the National Labor Relations Act — could legally agree to a closed shop, in which employees at a workplace must be members of the union as a condition of employment. Employment was based on continued good standing in the union — once you were out of the union, you were out of a job. The Taft-Hartley Act outlawed “closed shops” and introduced “open shops,” in which no one can be compelled to join a union, but can join if they want. Taft-Hartley directly authorized the states with enforcement of this act (the federal government utilizes “open shop” policies, but only for its own employees).
As such, 24 states and the territory of Guam have chosen to pass legislation that is compliant to Taft-Hartley. This legislation, collectively known as “‘right-to-work’ laws,” effectively makes it illegal to discriminate based on an employee’s disposition toward unionization. However, the Supreme Court has already ruled that no employee can be compelled to join a union, as unions are “voluntary associations” and not necessarily stakeholders in the business.
A primary rationale for an introduction of these state laws — despite their seeming redundancy — is union security clauses, or the requirement that an employee must pay the labor and legal fees for the collective bargaining agreement he enjoys as an employee. The Mackinac Center for Public Policy argues in regards to right-to-work laws toward public employees — such as teachers — “Union security clauses undermine union accountability by forcing teachers to financially support the union whether it has earned their support or not. Employees working under a collective bargaining agreement with a union security clause fit into one of two categories: full union members or ‘agency fee payers.’ Agency fee payers are those employees who decline to join the union but are required to pay a ‘service fee’ (or ‘agency shop fee’) to the union for the costs of collective bargaining representation services.”
President Obama responded last month in regards to Michigan’s move to be a right-to-work state, “What we shouldn’t be doing is trying to take away your rights to bargain for better wages and working conditions … We shouldn’t be doing that. The so-called right-to-work laws — they don’t have to do with economics, they have everything to do with politics. What they’re really talking about is giving you the right to work for less money.”
Those who oppose right-to-work laws feel that the laws create a class of “free-riders” — those who would directly benefit from union efforts without supporting the union itself. More importantly, it would make it easier for companies to ignore unions, as employers are free to hire non-union employees in response to possible protests and strikes. In conjunction with “at will” employment laws — in which employers are free to terminate any employee at any time, as long as the termination reason is lawful — employers have a free hand to sidestep any union stoppage-of-work.
As a result, right-to-work states have less union membership and a weakened, less vocal union constituency than in non-right-to-work states. In a 1998 study by William J. Moore, right-to-work laws lead to more “free-riding” and less involvement — financially or personally — in the union. However, many proponents argue this to be a good thing.
Phillip Wilson is the author of “The Next 52 Weeks: One Year to Transform Your Workplace.” Mr. Wilson also heads the Labor Relations Institute, a human resources consulting firm. In conversation with MintPress, Wilson speaks of the need to make unions more accountable:
“Right-to-work laws are simply about whether the law should compel someone to join or pay fees to an organization they do not want to support. In right-to-work states, unions have to earn these fees; in non-right-to-work states they don’t. They get paid whether they provide a good service or not. In right-to-work states, some employees may take advantage of the union’s services and still not pay fees (this is what unions call the free-rider problem). However, the free rider problem is often overblown by unions — most employees of unionized companies in right-to-work states choose to pay dues or fees anyway.”
Wilson continues, “The reason many states support right-to-work is that businesses tend to prefer right-to-work states and choose to relocate to those states. Unions still protest and organize in right-to-work states. They just have to work a little harder to earn their keep. Unions rarely admit this publicly, but ‘member organizing’ is much stronger in right-to-work states than non-right-to-work ones because of this face. In my view, that’s good for both the union members and, in the long term, the unions themselves.”
Steve Siebold, the author of the book “Sex, Politics and Religion: How Delusional Thinking is Destroying America,” who has studied the issue of right-to-work laws, takes a stronger stance: “The future belongs to the states who become right-to-work states, where unions have no power and cannot bully businesses into hiring workers simply because they live in the neighborhood and pay dues. The delusional thinking on unions is that they are necessary in modern day America. Critical thinking says they served their purpose in the past and it’s time for them to go. If you want to earn more money, bullying your employer with a mob isn’t the answer. Production is. If you want to earn more money, provide more service. End of story.”
In states that have right-to-work laws, according to the AFL-CIO, the average worker makes $1,540 less than his counterpart in a non-right-to-work state, and the median income is $6,437 less. More workers work in low-wage occupations and are more likely to be uninsured in right-to-work states. Infant mortality, poverty rates and the rate of workplace mortality are all higher in right-to-work states. While all of this may be coincidental (right-to-work states tend to be in the South and Midwest), it is fair to question the effect of right-to-work laws on society.
The problems with right-to-work
In 2011, 11.8 percent of all American workers, or nearly 14.8 million people, were unionized. A decade prior, 13.3 percent of all workers, or 16.3 million people were union members. In part due to industrial globalization, the unions have suffered from a steady decline in membership numbers and political prominence. However, these losses were limited to the private sector. In the public sector (government workers, teachers and health care providers), unions are considered an essential element in the protection of these underpaid — but essential — public servants. As of 2009, there were more public-sector union members (7.9 million) than private-sector (7.4 million) members.
However, in light of the 2008 mortgage crisis, most states developed a budget deficit or completely ran out of working capital. Many states looked to layoffs, hiring freezes, salary rollbacks, benefits reduction and cancellation of pensions toward solving the budget concerns — measures all opposed by the unions. To free their hands from these restrictions, several states and municipalities have acted to limit union protections for public employees. In 2011, Scott Walker introduced legislation that severely limits the bargaining rights of public employees in Wisconsin.
In the same year, San Diego and San Jose voted overwhelmingly approved ballot initiatives that cut retirement benefits for city employees. Seventy percent of San Diego’s voters approved the measure, while 66 percent of San Jose’s voters supported it. Ohio’s attempt at restricting public workers’ collective bargaining rights were stopped at the ballots by a landslide. In 2012, teachers’ unions were attacked nationwide — the most prominent of these attacks being in Chicago — in which the unions had to face a massive push to link employment and future raises to students’ performance or to curtail the tenure system.
Even in New York, a last minute deal in 2011 with the state’s largest public employee union — in which the union accepted no pay raises for two years, a five-day unpaid furlough in 2011 and a larger payroll contribution toward employee’s health insurance — prevented the layoff of thousands of state employees. Shortly following this, New Jersey approved their suite of benefits rollback, affecting 750,000 public employees and retirees.
The ability to act freely and without outside consideration is the impetus of opposition to unionization. A 1943 New York Supreme Court judge held that, “To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.”
However, the motive to govern without the input or consideration of the employees is not a new one. Since the late 1970s, efforts to put aside or disregard the National Relations Labor Act have been a little publicly-discussed but heavily acted-upon platform of the national conservative agenda. Fundamentally, conservatives hold that unions should operate under the tenet of “free association,” in which those who oppose a group are not compelled to support it. Conservatives feel that it is coercive to demand a “sacrifice” from those who benefit a collective endeavor — such an action constitutes a de facto tax. More tangibly, conservatives believe in private ownership, in which the employee does not inherit ownership of a company or enterprise simply by means of his contributions to its growth. Under this philosophy, employees are not entitled to a say in the company’s management, as they are — for lack of a better phrase — ”inventoriable human assets”: a means to the company’s profitability, but not leadership.
This “trivialization” of the employee is a dangerous proposition, and the arguments presented to do this through attacking the unions are dubious.
Anne Lofaso is a labor law professor at West Virginia University College of Law. In conversation with MintPress, she addressed the myths of right-to-work laws: “In states that have enacted so-called right-to-work laws, the state has removed the right of workers and employers to bargain for a contract that compels workers to pay for union representation. As an initial matter and one that is often ignored, these states have essentially removed an aspect of the freedom of contract from workers and employers — a result that is at odds with the values underlying a free-market economic order. In general, we don’t want to regulate markets unless we think that there is a market failure. These states, in the name of capitalism, are essentially regulating a market where there is no failure.
“On the more common points, right-to-work laws harm workers because they allow a minority of workers, who did not vote for their union, to hold their colleagues representatives financially hostage. The union, by federal law, has a duty to represent all workers whether or not they paid dues. These state laws allow workers who do not believe in unions to reap the benefits of unionization without paying their fair share … The argument that unions remove the right to bargain individually also lacks merit in almost all cases. How many workers actually bargain individually? Most are highly skilled athletes or upper management — not ordinary workers. Collective bargaining gives workers an opportunity for voice that they ordinarily wouldn’t have. If employers are truly worried about individually bargaining, they should do what MLB and the MLBPA do — bargain collectively for a minimum and then allow individuals to bargain above that.”
The hard reality, however, is that it is from the corporate community that the drive to protect the unions must begin. Many companies are actively relocating to right-to-work states and are sponsoring pro-right-to-know candidates; states and municipalities desperate to raise or preserve their corporate tax base are considering right-to-work laws to make themselves more attractive to investment. The anti-union attitude has long since been commonly accepted and has been used for laughs.
An example of this is the NBC program “The Office,” in which, during an episode, Dunder-Mifflin’s warehouse employees consider forming an union. Jan, the corporate boss, responds, “I am told that there has been some interest in forming a union and that Michael supported it. Obviously, he is not a friend of yours because he didn’t tell you the facts; so let me. If there is even a whiff of unionizing in this branch, I can guarantee you that the branch will be shut down like that. They unionized in Pittsfield, and we all know what happened in Pittsfield. It will cost each of you a fortune in legal fees and union dues and that will be nothing compared to the cost of losing your jobs, so I would think long and hard before sacrificing your savings and your future just to send a message.”
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