Right to Work

The “right to work” idea is a principle that affirms that every American has the right to work without being forced to join a labor union. The National Right to Work Committee advocates for every citizen to have the right to join a union, but that they must not be made to feel obliged to do so. A union is an organized group of workers who form to protect and advocate for their rights and the rights of their fellow workers. To explore this concept, consider the following right to work definition.

Definition of Right to Work

Noun

  1. The idea that every American has the right to not be required to join his workplace’s labor union.

Origin

1846    Coined by French socialist Louis Blanc during the 1846 financial crisis

Right to Work Laws

Right to work laws are laws that protect employees’ right to work without being forced to contribute any dues to their workplaces’ labor unions. Some may think that right to work laws are laws that guarantee employment (giving people “the right to work”), but this is not their aim. Instead, right to work laws are, collectively, a governmental regulation of the agreements that exist between employers and labor unions.

For example, right to work agreements guarantee that non-union workers will not be forced to pay union fees toward the labor contract that everyone works under. These agreements also guarantee that, just because a worker opted not to pay union fees, it does not mean he will be excluded from the protections the union seeks to achieve for all workers in the workplace.

History of Right to Work Laws

The history of right to work laws began with the Wagner Act (or the “National Labor Relations Act”), which was passed in 1935. The Wagner Act was part of President Franklin D. Roosevelt’s “Second New Deal.” Among the Second New Deal’s major objectives were:

  • To improve the country’s use of natural resources
  • To offer security against old age, unemployment, and/or illness
  • To put slum clearance into effect, which was a strategy that set out to upgrade poorer areas into more improved housing and developments

The Wagner Act specifically stated that companies could legally agree to be classified as any of the following:

  • Closed Shop – In a closed shop, employees must agree to be members of a union as part of their employment. Employees who ceased being members of the union for any reason, whether it be through the failure to pay their union dues or being outright kicked out of the union, were to be fired on the spot, whether they violated any of the employer’s other rules or not.
  • Union Shop – A union shop permits the hiring of non-union employees, provided they join the union within a certain specified time period.
  • Agency Shop – In an agency shop, employees were required to pay the equivalent of what it would cost to be represented by the union. However, they were not required to actually join the union.
  • Open Shop – In an open shop, an employee cannot be forced to join a union, or be made to pay the equivalent of union dues to the union. The employee is also protected from being fired in an open shop if he ultimately decides to join the union.

The federal government operates within the open shop classification, though several of its employees are, in fact, represented by unions. Professional athletes who belong to unions are governed by written contracts that specify the rules pertaining to their particular union’s representation. However, their contracts are limited to “wherever and whenever legal,” as determined by the Supreme Court. This means that players who play on sports teams within states that follow right to work laws are subject to those laws and cannot be required to pay union dues as part of remaining employed with those teams.

Taft-Hartley Act

Congress passed the Taft-Hartley Act, which was the next major milestone in the history of right to work laws, in 1947. The Taft-Hartley Act is also known as the Labor Management Relations Act of 1947. President Harry Truman had vetoed the Act, yet Congress overrode the veto to enact it anyway.

The Taft-Hartley Act worked to repeal certain sections of the Wagner Act, including outlawing the closed shop section of the Wagner Act. Specifically, Section 14(b) of the Taft-Hartley Act gives individual states permission to outlaw the union and agency shops for employees working within their jurisdictions. Such laws that criminalize these kinds of situations are called “right to work laws.”

Right to Work States

Half of the states within the U.S. are right to work states. This means that those states have right to work laws on the books. Most employees who work for private employers are protected in right to work states. Those who work in either the railroad or airline industries are not, however, protected in right to work states. The same goes for a majority of federal employees, who are also typically exempt from right to work laws.

As of 2017, the following 28 states were considered right to work states:

Alabama Indiana Nebraska Tennessee
Arizona Iowa Nevada Texas
Arkansas Kansas North Carolina Utah
Florida Kentucky North Dakota Virginia
Georgia Louisiana Oklahoma West Virginia
Guam Michigan South Carolina Wisconsin
Idaho Mississippi South Dakota Wyoming

In the remaining states, workers can refuse to join their companies’ unions while still being protected by the unions’ contracts. They can then pay the fees associated with any workplace bargaining. States with right to work laws, however, require that union contracts protect all of the workers within the company, not just those who belong to a union.

Opposition to Right to Work Laws

Those in opposition to right to work laws tend to overlook what is perhaps the most important economic factor that they affect, which is unemployment. Specifically, right to work laws tend to reduce overall unemployment. Workers who reside in right to work states are slightly less likely to be unemployed than those who work in states where union dues can be required.

Unions in particular tend to be the loudest voices in the opposition to right to work laws. They believe that their unions are only made stronger when everyone is in it together. However, there is not enough evidence to support this claim.

In fact, when unions are successful at winning higher wages for their members, the downside is that non-union members are vulnerable to lower wages and higher union dues. While unions may voice a strong opposition to right to work laws, labor economists tend to agree that the presence of unions actually works to reduce the overall standards of living.

Right to Work Example Involving a Teachers’ Unions

An example of a right to work case that came before the Supreme Court is Friedrichs v. California Teachers Association. Friedrichs consisted of a teachers’ union’s attempt to have the case of Abood v. Detroit Board of Education overruled.

Abood v. Detroit Board of Education

Abood was a case heard in 1977 that pertained to U.S. labor law. A group of public school teachers in Detroit, Michigan petitioned the court to overturn the requirement that obliged them to pay fees that were equivalent to union dues. The group opposed collective bargaining in the public sector, and objected to the activities in which their union engaged.

At the conclusion of Abood, the Court unanimously decided that the union shop was legal in both the public and the private sector. Further, the Court held that non-members were to comply with agency fees in order for the union to recover costs associated with grievance adjustments, collective bargaining, and contract administration. In this example of right to work litigation, the Court also established that the dues of those who objected to being members of the union, or who objected to the union’s policy, were not to be used for any purpose other than those three previously specified purposes.

Friedrichs v. California Teachers Association

California law gives unions significant influence over several factors associated with employment. Unions within that state also serve as the exclusive bargaining representatives for all public school employees within their particular districts.

A union that serves as the exclusive bargaining representative for a particular school district can establish an agency shop for that district. This means that the district can require its employees to either join the union or pay the equivalent of union dues. This is where the First Amendment comes in, as it prohibits unions from forcing non-members to support any union activities that are not directly related to the duties of an exclusive bargaining representative. Such activities include negotiations and contract administration, to name a few.

Because the First Amendment prohibits this, unions are required to send notices to all non-members that itemize the chargeable and non-chargeable parts of the fee. Non-members must then affirm that they are opting out of paying the non-chargeable part of the fee. This is done on an annual basis.

In the case of Friedrichs, a collective of ten public school employees sued the California Teachers Association, along with other similar organizations and school districts. They argued that the agency shop arrangement and the opt-out requirement both violated the First Amendment, and that they did not want to be represented by their unions any longer. The lead plaintiff, elementary school teacher Rebecca Friedrichs, had formerly served on the executive committee for her local union.

The District Court for the Central District of California found in favor of the union. Friedrichs then appealed to the Court of Appeals for the Ninth Circuit, which affirmed the District Court’s ruling. Both courts dismissed the case, so oral arguments were never heard, and the proper evidence was never required to be presented. Friedrichs then petitioned the U.S. Supreme Court for a writ of certiorari, which was granted in June of 2015.

In March of 2016, the Supreme Court issued a one-line decision that affirmed that of the lower court. It was puzzling why the Court even granted certiorari, considering the lack of substance in its decision. However, the death of Justice Antonin Scalia shortly after arguments were heard may have been a contributing factor. The Center for Individual Rights (CIR) had asked for the case to be reevaluated once a ninth justice had been appointed to replace Justice Scalia. The CIR’s petition, however, was ultimately denied.

Related Legal Terms and Issues

  • Collective Bargaining – The negotiation of wages and other factors associated with employment by an organized collective of employees, such as a union.
  • Dues – A payment that one is obligated to make; a fee.
  • Petitioner – The individual who initiates legal proceedings by filing a petition, also referred to as “plaintiff” in some cases.
  • Public Sector – The section of the economy that is controlled by the government.
  • Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.

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