Opinion: We need a right-to-work constitutional amendment – here’s why

United Auto Worker Union President Shawn Fain stands alongside striking workers. Photo courtesy of the UAW's social media — United Auto Worker Union President Shawn Fain stands alongside striking workers. Photo courtesy of the UAW’s social media

Madi Clark addresses the position many union members find themselves in

Madi Clark
Mountain States Policy Center

Imagine going to work and being forced to pay a fee from every paycheck for a service you don’t want. Frustration would be a mild reaction, outrage a more understandable one. Month after month, paycheck after paycheck, a portion of your wages would go to support a private organization you disagree with. This is the position many union members find themselves in across the country.

The First Amendment of the United States protects the rights of free speech and the courts have repeatedly affirmed this right naturally extends to freedom of association. Unfortunately, for workers in 24 states, because these states lack a right-to-work law, unions have found a workaround from the freedom of association.

Forced union membership is as undemocratic as it sounds. No American can be legally forced to join a formal union, but unions have historically found a way to protect their pocketbooks from uninterested members. In non-right-to-work states, unions can require companies to charge ‘non-member fees’ as part of the employment conditions. These non-member fees are often the equivalent (or so close) to the member fee, that there is no point in opting out of membership.

A right-to-work law prevents these compulsory private membership practices. Instead of mandating that all workers in certain fields and careers must be members and pay the union dues, right-to-work states recognize that not all workers may agree with the practices of the unions. In right-to-work states, unions must earn the membership dues of their members. Guarding this protection within state constitutions is an important policy protection.

Right-to-work laws stem from the 1947 Taft-Hartley Act, Section 14B which prevented unions from requiring companies to fire workers who refused to join the union. After its passage, many states adopted right-to-work laws. In the last fifteen years, five states have also adopted the policy.

Idaho and Wyoming are right-to-work states that adopted their statutory protections decades ago. Wyoming became a right-to-work state in 1963 and Idaho in 1985. Unfortunately, for workers in Montana and Washington, they remain unprotected and workers can be subject to union leadership they disagree with.

Right-to-work laws are not a tool used to break up unions, but to protect workers from unions that are taking membership dues from members who disagree with union political practices and efforts. The law also protects non-members from being fired simply because they do not join a union. Instead of fighting against right-to-work laws, unions should strengthen their efforts to recruit new members by listening and following the direction of dues-paying members.

These laws create a balance between worker rights and union interests. No worker should be beholden to a private organization they disagree with to maintain employment. The propaganda against right-to-work stems from organized labor’s fear of losing revenues based on compulsory membership. Union leadership argues that right-to-work destroys collective bargaining, decreases wages, increases poverty, and allows free riders. All of these are myths.

If collective bargaining is destroyed it is only the fault of the union not representing employees effectively. Effective unions will maintain their membership, whereas ineffective unions relying on compulsory membership and delivering poor service or questionable political activity will have earned their demise.

Studies claiming lower wages and higher poverty questionably rely on assumptions that assume correlation is causation. Some studies that dive deeper into the data and look at the cost of living assumptions turn these claims around and find that the rates do not vary significantly between right-to-work and non-right-to-work states. In fact, a recent Harvard Study found that people living in RTW areas have higher employment, higher labor force participation, lower disability receipts, and higher population growth because of the attractive economy. All these factors are associated with lower childhood poverty rates in RTW locations.

An interesting note is that a labor union’s obligation to represent all employees (non-members too) is self-inflicted. If unions were willing to part with their hold on exclusive workplace representation, the free-rider argument would be pointless.

Over the last forty years, union membership has fallen from 20.1 percent in 1983 to 10.0 percent in 2023. There are about 14 million workers belonging to unions in the United States. Public-sector workers are more likely to belong to unions at 32.5 percent, whereas private-sector workers are less likely at 6.0 percent.

There is a big difference between public and private sector unions. As noted by President Franklin D. Roosevelt in this 1937 letter to the National Federation of Federal Employees:

“All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters. Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees.”

Union membership changes have differed between the private and public sectors. Private sector union membership has fallen from 16.8 percent in 1983, a ten percent drop over 40 years. Public sector membership remained relatively constant until 2011 but has decreased by five percent in the last 12 years from 37 percent in 2011 to 32.5 percent today. The share of union workers in right-to-work states is less than half (6%) of non-right-to-work states (13%).

There are 26 states now protecting the fundamental rights of speech and association through right-to-work laws. Of these 26 states, 10 have gone beyond statutory laws, protecting worker freedom directly in their state constitutions. Tennessee is the most recent state to vote for a constitutional amendment (2022), joining 9 other states with constitutional safeguards.

In November 2022, Amendment 1 won in all 95 counties in Tennessee and showed that workers want to be able to make their own choices concerning union membership. Nearly 70 percent of Tennessee voters agreed with protecting the right to work in the state constitution. Amending the state constitution to include worker freedom, protects the existing right-to-work law from future political changes that would disadvantage workers to favor union leaders.

A strong right-to-work policy would add language to a state constitution making it unlawful for any person to be denied employment because they want to resign or refuse to join or affiliate with any labor union or employee organization. A benefit of right-to-work constitutional amendments is the opportunity for voters to cast their opinions. In Tennessee, voters agreed with the measure by a 2-1 margin showing how important freedom of association is to a majority of Americans.

Lawmakers in our region should do the same and join the 10 other states with strong constitutional right-to-work protections for workers and the economy.

Madi Clark addresses the position many union members find themselves in

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