March 24, 2017
By Steven Wishnia
In the last seven years, laws prohibiting the union shop have been enacted in six states. All six were in the industrial Midwest and Ohio Valley, breaching what was once the heartland of American unionism.
Indiana was the first, in 2011. Michigan followed the next year, jamming the bill through its legislature in a December lame-duck session. Wisconsin passed its law in 2015, the second installment of Gov. Scott Walker’s assault on organized labor after his obliteration of collective bargaining for government workers in 2011. West Virginia’s came in 2016, over Gov. Earl Ray Tomblin’s veto. Kentucky and Missouri enacted their laws early this year, after Republicans gained control of the governorship and both houses of the state legislature.
Twenty-eight states now prohibit union contracts from requiring workers to either join the union or pay a fee to cover the cost of representation, although federal law requires unions to represent all workers in a bargaining unit. Commonly called “right-to-work” laws, they’ve had both a practical and symbolic effect. They’ve weakened organized labor’s power: Unions’ share of the workforce fell by more than 25% in Wisconsin, and the number of “free riders” more than doubled in Michigan. They’ve also given unions a series of defeats in the region where the United Auto Workers won the Flint sit-down strike of 1936-37, where John L. Lewis built the United Mine Workers into a powerhouse, and where the American Federation of State, County, and Municipal Employees was founded in 1933.
Union supporters, however, were able to block what would have been the first such law in the Northeast in February, when New Hampshire’s state House narrowly defeated one. A bill that would ban union shops nationwide has been introduced in the House, but would likely not survive a Democratic filibuster if it made it to the Senate.
The term “right to work” is about “manipulating language” to get middle-class people to go against their interests, John Armelagos, now president of the Michigan Nurses Association, told Alternet in 2013. “It’s not about the right to have a job. It drives down wages and increases income inequalities.”
Supporters defend these laws with words like “freedom” and “choice.” Introducing the National Right to Work Act in February, Rep. Steve King (R-Iowa) declared that “Americans overwhelmingly believe that every worker and their employer should have the power to negotiate the terms of their employment,” but the union shop replaces that with “forced unionization” and “monopoly bargaining.” In New Hampshire, state House Majority Leader Dick Hinch argued that the bill there was “not union-busting,” but gave individuals “the choice to participate and contribute, or not, based on their own best judgment.”
But Jim Roche, president of the New Hampshire Business and Industry Association, inadvertently debunked that argument on Feb. 8, when he told a committee hearing, “I think the underlying point is that in ‘right-to-work’ states, organized labor often has less success organizing.” If an employer can avoid having to negotiate with a union, he added, “that’s a positive for them.”
“‘Right to work’ means their right to fire you at will,” Chris Marcin, chief steward for International Association of Machinists Local 836 told LaborPress in February, just before the New Hampshire vote.
Dark Money and Bigotry
The concept emerged after the great union victories of the late 1930s. The phrase “right to work” was coined in 1941 by William B. Ruggles, an editorial writer at the Dallas Morning News who didn’t want to join a union. His bosses feared that federal laws and regulations backing union rights were forcing unions down the throats of employers and socializing industry. Ruggles proposed a constitutional amendment guaranteeing the right to work with or without union membership.
Lobbyist Vance Muse, founder of an organization called the Christian Americans, picked up the campaign—but realized that it would be much easier to win state laws than a constitutional amendment. Without such a law, he argued. “white women and white men will be forced into organizations with black African apes whom they will have to call ‘brother’ or lose their jobs.”
He won support from business groups, and Texas outlawed the union shop in 1943. Arkansas followed in 1944. The Taft-Hartley Act of 1947 specifically authorized states to pass such laws, in its Section 14(b). By 1960, 18 states had done so. Wyoming, Louisiana, Idaho, and Oklahoma trickled in over the next few decades.
In 1961, the Rev. Martin Luther King, Jr. called “right to work” a “fraud,” saying that it “provides no ‘rights’ and no ‘works.’ …Its purpose is to destroy labor unions and the freedom of collective bargaining.” In 1965, the high-water mark of liberal power in Congress in the last 70 years, the House voted to repeal Section 14(b) of the Taft-Hartley Act, but a filibuster in the Senate preserved the provision.
These laws’ resurgence over the last decade has been pushed by a network of well-financed far-right policy advocates, litigation organizations, and lobbying groups. They include the American Legislative Exchange Council (ALEC), whose model “right-to-work” bill contains wording almost identical to the laws enacted in Wisconsin, Michigan, West Virginia, Kentucky, and Missouri; the Koch brothers’ Americans for Prosperity, which set up a front group to lobby in New Hampshire; and the National Right to Work Committee.
There are also key local figures. In Missouri, David Humphreys, a wealthy building-supply company owner, spent more than $10 million in last year’s elections, particularly targeting Republican state legislators who’d opposed right-to-work, and billionaire Rex Cinquefield has also backed anti-labor legislation. In Wisconsin, billionaire Diane Hendricks, Scott Walker’s largest campaign donor, asked him in early 2011 when he would ban the union shop. (Walker answered that he would first go after collective bargaining for public employee unions, “because you use divide and conquer.”) The Mackinac Center for Public Policy is based in Michigan, but has national influence because of the money spread around by backer Betsy DeVos, now Secretary of Education, and her billionaire husband.
The National Right to Work Committee, founded in 1955 and based in Washington’s Virginia suburbs, claims that it is “dedicated to the principle that all Americans must have the right to join a union if they choose to,” but its masthead motto is “No one should have to be forced to pay tribute to a union boss to get or keep a job.”
Its legal offshoot, the National Right to Work Legal Defense Foundation, is currently trying to get two cases to the Supreme Court to win a ruling that “collecting forced dues or fees” violates workers’ First Amendment rights. One, Janus v. AFSCME, from Illinois, would prevent public-sector unions from collecting fees from nonmembers they represent. The other, Serna v. Transport Workers Union, would do the same to railroad and airline unions.
Turning the Legal Clock Back to 1934
Union supporters argue that “right-to-work” really means “right to work for less.” Reed Larson, who headed the National Right to Work Committee from 1959 to 2003, agreed—but he believed that was a fundamental right in a free market. In his book Stranglehold: How Union Bosses Have Hijacked Our Government, he wrote that the New Deal’s minimum-wage regulations “trampled the rights of workers” by denying them the freedom to make a contract to work for less money.
The Supreme Court, then profoundly anti-labor, agreed. In 1935, it held that the minimum wage was an “unconstitutional interference with personal liberty and private property” because its effect, “in respect to wages and hours, is to subject the dissenting minority… to the will of the stated majority.”
For many on today’s far right, that doctrine represents a lost golden age of American jurisprudence. The dominant labor-law decision of the pre-1937 era was 1905’s Lochner v. New York, in which the Supreme Court ruled that a New York state law banning bakers from working more than 10 hours a day or 60 hours a week unconstitutionally infringed freedom of contract. That set a precedent used to rule against other wage-and-hour legislation and bans on “yellow-dog” contracts, in which workers had to agree not to join unions.
The Court more or less overruled Lochner in 1937, when it upheld Washington state’s minimum-wage law in West Coast Hotel Co. v. Parrish. Chief Justice Charles Evans Hughes wrote that the freedom to contract was not absolute, and that the law protected workers “who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage.” The experience of the Depression provided “an additional and compelling consideration,” he added.
Workers should have the right to negotiate for themselves and don’t need collective action if they’re valuable to their employer, Vincent Vernuccio, the Mackinac Center’s director of labor policy, told LaborPress in January 2016, after the Supreme Court heard arguments in the Friedrichs v. California Teachers Association case.
Told that in the 1960s, before major-league baseball players had a strong union, Yankees pitcher Jim Bouton won 20 games in his second season and two World Series games in his third, but still couldn’t get the team to pay him $19,000 a year, he said he supported the current baseball contract because it provides a salary “floor, not a ceiling.”
Celebrating Michigan’s right-to-work law in 2013, the Mackinac Center said that when workers can’t opt out of the union contract, “this gives unions a stronger voice at the bargaining table.”