Texas proudly bills itself as a “right to work” state. In fact, Texas was the very first such state, although as of now, some 27 others have followed suit according to the National Right to Work Legal Defense Foundation. Contrary to what you may have heard, “right to work” laws have nothing to do with the idea of employment-at-will, nor with whether or not noncompete agreements are enforceable. Rather, these laws make it illegal for workers to be required to join or pay fees to a union as a condition of employment. Proponents of these statutes argue that they are all about protecting individual freedom. As with most laws, however, it’s not that simple.
A shockingly superficial history of labor law
Some historical context is in order here. Congress enacted the National Labor Relations Act in 1935. Not only did the NLRA prohibit unfair labor practices, it also specifically allowed employees to unionize and join together for purposes of bargaining collectively. Additionally, the law permitted what are called “union security clauses.” That is, all employees in a particular workplace could be required to pay mandatory fees to the union to cover the costs of the union’s collective bargaining and other activities on their behalf. Because any contract the union negotiated benefitted all workers, it was believed that all workers should contribute to the union’s efforts, thereby negating the problem of “free riders” who were not union members but nonetheless reaped the rewards of membership.
But in 1947, the Taft-Hartley Act allowed states to prohibit union security clauses, meaning employees who chose not to join a union or pay union fees could not be forced to do so. Nonetheless, unions are still required to represent nonpaying employees and must simply absorb the costs of doing so. Consequently, nonmembers enjoy the protections of union contracts, union representation in employer grievances, and other benefits.
Texas’s right-to-work law
The current Texas right-to-work statute is found in the Texas Labor Code, sections 101.001 et al., and is typical of those found elsewhere. As Texas’s Attorney General explains, the statute means that no one can be “denied employment because of membership or non-membership in a labor union or other labor organization.” Nor can anyone be denied employment because of failure to pay union dues or fees. Ostensibly, the law protects individual freedom, in that no employee can be punished for joining or refusing to join a union – that is, everybody has a right to work regardless of union membership. And who could be against individual freedom?
Critics of right-to-work (RTW) laws, however, point out that union security clauses provide a critical source of funding for unions. Without this money, unions’ power is diminished. Moreover, the entire point of labor unions is collective over individual action. An individual worker has limited power to negotiate with an employer or guard against unfair labor practices. Together, however, workers can improve conditions for everyone. Allowing employees in a unionized workplace to opt out of paying union fees enables them to have their cake and eat it too – all the benefits of union membership with none of the cost.
Indeed, a quick perusal of the National Right to Work Legal Defense Foundation’s website reveals that the organization’s stated purpose is to “eliminate coercive union power and compulsory unionism abuses.” By stealthily couching their attacks on organized labor in terms of individual rights and freedom, RTW proponents have steadily eaten away at union strength in RTW states.
What kind of effects do right-to-work laws have?
The effects resulting from RTW laws are difficult to tease apart from other influencing factors, yet parties on both sides of the debate claim supporting studies. As this NPR interview notes, some statistics show that total employment and personal income have grown in RTW states, but that it is difficult to link that growth strictly to RTW laws as distinct from a variety of other economic conditions. And according to the Brookings expert interviewed, in general RTW states have lower rates of union membership, weaker unions, and lower wages. A recent study from the Economic Policy Institute concluded that workers in RTW states earn 3.1% less than those in non-RTW states. Certainly, it is possible for there to be higher total employment and at the same time lower wages in RTW states.
What’s next for right-to-work proponents?
For years, federal lawmakers have attempted to pass a national RTW statute, without success. But according to The Village Voice, the most recent attempt, introduced in February 2017, may gain more traction – enough to have union officials worried.
And Texas is going even further. Right now, the legislature is considering Texas Senate Bill 13, which would end automatic payroll deductions for union dues for public employee unions. If passed, the bill would prohibit certain public employees from having union dues voluntarily deducted from their paychecks and passed along to the union of their choice. As the Texas Tribune explains, proponents of the bill argue that the state should not be in the business of administering union dues. Opponents, however, point out that the bill doesn’t exactly accomplish that purpose, since it would leave in place automatic deductions for police officers, firefighters, emergency first responders, and charitable organizations. Employees covered by the bill include teachers, child protective services workers, and corrections officers. The bill’s opponents argue that it really is an attempt to weaken certain public employee unions (notably teachers’ unions) and chill union membership, since it would make paying union dues more difficult.
That union strength has declined in recent decades is undeniable. According to the Bureau of Labor Statistics, in 1983 20.1 percent of wage and salary workers were union members; as of 2016, that percentage was down to 10.7 percent. Along with this decline has come wage stagnation and benefit cutbacks. To the extent that RTW laws have contributed to weakened labor protections, then, perhaps the so-called “right to work” is not all it’s cracked up to be.