Explosion of Right-to-Work Laws May Cut the Lifeblood of Labor Unions

Labor unions in the private sector continue to shed members at rates that any union officer would find alarming, according to the U.S. Department of Labor's Bureau of Labor Statistics.

Labor unions in the private sector continue to shed members at rates that any union officer would find alarming, according to the U.S. Department of Labor’s Bureau of Labor Statistics (BLS). Membership dues are the lifeblood of any union because they are a major source of revenue. If dues decrease or cease altogether, there is no funding to organize non-union employers, lobby state and federal government, and campaign for candidates.

The BLS survey reveals that only 6.4 percent of private sector workers belong to a union. The numbers reflect a more than thirty-year decline in the private sector unionization rate (down from 16.8 percent in 1983). The reasons for the membership decline are many, but what may be unions’ death knell is the explosion of laws which seek to cut the flow of dues to unions.

Under the National Labor Relations Act (NLRA), the federal law that regulates most private sector union-management relations, unions can negotiate what are known as Union Shop clauses. In a Union Shop, if a worker is hired into a job that is covered by a union contract, they must begin paying union dues after some initial period, usually thirty days. If the worker refuses to pay dues or some alternative, the employer must fire the worker. Unions can also negotiate what are known as Union Dues Checkoff clauses. Under this scheme, the employer withholds the mandated dues directly from the worker’s paycheck and the employer then transmits the money to the union. This insures the union gets a steady and uninterrupted flow of revenue. Many people believe that the Union Shop/Dues Checkoff combo is undemocratic and runs contrary to peoples’ right to choose what organizations they want to join and financially support.

In 1947, the NLRA was amended in part due to a public outcry over some major labor strikes that put a crimp on the country’s post-war recovery. At that time, many believed that unions had become too powerful. Among other reforms, the 1947 amendments allowed individual states to pass “Right-to-Work” laws (RTW) that outlaw compulsory union membership. For many years, the number of states with such laws held at about 20, all of which were located in the south, a region that had been traditionally hostile toward organized labor.

Starting about six years ago, there was a renewed interest in RTW laws in northern states that had elected conservative Republican governors. What was revolutionary was that RTW laws were passed industrial powerhouse states such as Michigan, Wisconsin and Indiana. These states had historical rates of unionization that were much higher than the national average and were places where major unions like the Autoworkers, Steel Workers, Teamsters and Service Workers had considerable political clout.

Today, 28 states have enacted RTW laws with Missouri being the most recent. Most of these laws prohibit mandatory union dues in the public sector as well. Additionally, even local governments have jumped on the RTW bandwagon. When RTW advocates in Kentucky were unable to pass a state-wide law, Hardin County and then several others, passed county-wide RTW laws. The ability of municipalities to pass local RTW laws survived a legal challenge when the Sixth Circuit Court of Appeals ruled in UAW v. Hardin County.

To bring some uniformity to the hodgepodge of jurisdictions with RTW laws, earlier this year, Rep. Steven King (R- IA) introduced H.R. 785 -- the National Right-to-Work Act -- which seeks to outlaw compulsory union membership in most private sector jobs. If this bill passes and is signed into law by the President Trump, organized labor in America will be scrounging to find its next dollars in the form of union dues.

Unions argue that RTW is inherently unfair because under the NLRA they must represent all workers in the bargaining unit regardless if they pay dues or not. Proponents of RTW argue that businesses prefer to place manufacturing plants in RTW areas and the effort to bring high paying manufacturing jobs back would be enhanced by national uniformity. Perhaps most importantly, RTW proponents argue every person should have the right to decide what organizations to join and where to spend their money. If RTW becomes the law of the land, union political and economic clout will surely decline and may radically change the dynamic of U.S. labor relations.

Contributing Author

Mark J. Neuberger

Mark J. Neuberger is Of Counsel in the Miami office of Foley & Lardner LLP where he represents management in all aspects of labor and...

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