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.