The Right-to-Work Debate

by Nick Santulli

Right-to-work laws (RTW) have been hotly contested since their emergence on the United States’ political scene in the 1940s. Currently, over half of the country’s states have implemented RTW legislation which allows employees whose workplaces have voted in favor of unionizing to opt out of paying dues. RTW remains a high-profile issue today, as evidenced by the 2016 presidential campaign. Stagnant wages, which have been linked to the legislation by its critics, dominated the electoral narrative. While Hillary Clinton forcefully called for RTW’s repeal, Donald Trump defended the laws and promised to fight union bosses. Although each side’s arguments were strategically muddied by the candidates, the stances represent a backlog of debate that features moralistic, legal, and policy-based components.

Ultimately, opponents of RTW prove more persuasive since they substantiate concerns about the laws’ outcomes.

Values-Based Arguments

The first portion of the RTW debate concerns values: normative judgements on whether the laws are right or wrong. Opponents of RTW claim that the legislation creates a free-rider problem designed to undermine union power. This issue arises because the 1935 National Labor Relations Act mandates that when a workplace decides to unionize, all workers receive representation from the labor organization; this policy does not change after the implementation of RTW laws, even though employees can opt out of paying dues. Naturally, RTW creates a dangerous conflict for union-represented workers in these states. Even if employees decide against joining the union or paying dues, they still receive access to all union benefits, including legal assistance if they need to file a grievance against the employer. Providing these services free-of-charge devalues union membership, transforming the act of paying dues from a necessity into a charitable donation.

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For individual workers’ bottom-line, RTW makes eschewing union membership an efficient option. When this phenomenon occurs at a massive scale, unions are left with substantially fewer resources and therefore less influence in collective bargaining, which hurts workers in the long run. While these employees know they have some obligation to support the union financially, short-term economic concerns typically take precedence in people’s day-to-day decisionmaking. The fact that employees represented by unions are working-class magnifies this reality. Most do not  have a large repository from which to draw funds for expenses that aren’t absolutely necessary.

From the perspective of RTW’s critics, the laws impose an unfair dilemma onto union workers and result in poorer outcomes for everyone.

Those in favor of RTW highlight free-choice and redefine free-riders. Essentially, they argue that workers should be able to decide for themselves whether to pay union dues. According to the National Right to Work Committee, the laws protect employees from “compulsory unionism abuses.” Without RTW, employers can fire workers who fail to join the union. Advocates frame this issue in the context of civil liberties, stating that employees should not face workplace discrimination based on their membership in a private organization. They also present organized labor’s political involvement as another way that “forced unionism” oppresses workers. Because many unions contribute to political campaigns, requiring dues inevitably forces some workers to support causes they oppose. For RTW advocates, this represents the repression of free thought by unions and steals workers’ agency from them. On the issue of free riders, supporters of RTW claim that non-members who receive union benefits should instead be referred to as “captive passengers.” Even if they oppose “Big Labor” on a fundamental level, they are forced to accept representation. This framing implies that workers who withhold union dues in RTW states do so for ideological reasons, not economic ones. RTW advocates stress that labor relations must leave room for dissent, because otherwise they oppress the minority.

When evaluating arguments over RTW that are grounded in values, supporters of the laws have a clear advantage. Their foundational claim is literally built into the legislation’s name, and they are able to frame a wonky debate about union power in the context of individual liberty, a core tenet of the American identity. This strategy deceptively provides an easy answer to complex questions by connecting the debate with a national value. Removing RTW from its consequences works in advocates’ favor, since the situation becomes murkier when outcomes are considered. Accordingly, while RTW opponents ultimately have more powerful rhetoric, it is also more convoluted. Understanding incentive effects requires focused attention from the audience, which is difficult to sustain in our current deliberative climate. Moreover, RTW advocates have gifted followers with an simple (although logically unsteady) counter for detractors’ concerns about free-riders in the notion of the “captive passenger.”

Isolating the clash over values alone, RTW supporters capitalize on their pre-existing advantage by distilling a multi-layered debate into a succinct, fiery message.

Constitutionality Disputes

Some activists question the constitutionality of RTW. A primary battleground in the war over the legislation has been the courtroom; high-profile cases like Sweeney v. Pence stole headlines nationwide. Sweeney set the precedent for most that lawsuits followed it, so it serves as a fitting case study. In the case, prosecutors argued that Indiana’s RTW law violates the Takings Clause of the U.S. Constitution due to the federal mandate that labor organizations must represent all employees in unionized workplaces regardless of whether they pay dues. The Takings Clause was designed to protect against government theft, and proclaims that “no private property should be taken for public use without just compensation.” According to the plaintiffs’ interpretation, the interaction between universal union representation and RTW is unconstitutional, since unions are required to expend their own resources to provide services free-of-charge without the presence of either public use or just compensation. For the prosecution, RTW embodies not only a free-rider problem, but a constitutional violation.

However, the defendants in this case argued that unions do, in fact, receive fair payment for representing all workers. When negotiating contracts with employers, unions often secure exclusive bargaining rights, which grants the labor organization sole power in bargaining with the firm on behalf of its workers. In Sweeney, the defense claimed that these special protections fulfill the constitutional requirement for “just compensation,” without so much as estimating the value of these arrangements. Although the defendant’s claims about worth were free of quantitative comparisons, this argument was deemed sufficient by the majority of the U.S. Circuit Court, and they ruled in favor of RTW. However, the minority opinion upheld the notion that the Takings Clause was breached under these circumstances, reiterating the dangers posed by free-riding.

While the defendant’s argument about exclusive bargaining rights was enough to convince most justices on the court, it remains flimsy. Without an estimate of the material worth of these arrangements, determining whether they constitute “just compensation” is practically impossible. Moreover, the phrase “just compensation” itself is problematic, especially in a case like Sweeney where the outcome depends upon comparing the values of intangible goods.

The case’s circumstances resulted in a decision marked by limited information and subjective interpretations, which favored RTW.

The legislation’s supporters benefitted from a vaguely-worded constitutional clause and two goods that are near-impossible to compare. While their arguments may not have been the strongest, they didn’t need to be under these difficult circumstances. Until more economic research is completed estimating the cost imposed on unions by free-riders and the value of exclusive bargaining arrangements, a true judgement of whether “just compensation” is fulfilled remains elusive. For the time being, RTW will remain victorious in the courtroom, and, from the standpoint of legal theory, RTW stands strong.

The Debate over Policy Outcomes

Legislation does not exist in a bubble of morals and theory; it has measurable, real-life consequences that warrant discussion. RTW opponents claim that the damage wrought on unions by the legislation produces negative effects for society overall. The laws have been found to reduce union membership by up to ten-percent, weakening the state of organized labor. With lower numbers and fewer resources, unions are not able to negotiate on behalf of workers as effectively as they had been previously.

When workers’ representation is compromised, employers are not held accountable, resulting in lower wages and poorer work conditions for their employees.

Additionally, these effects extends far beyond those laborers represented by unions and can explain some of society’s worst ills. When union workers’ wages fall, all incomes suffer. This relationship has been cited as a possible cause for rampant wage stagnation in the United States since the Great Recession. Moreover, a study by a Harvard sociologist found that anywhere from one-fifth to one-third of the growth in income inequality can be attributed to the collapse of union power. From the perspective of RTW opponents, the law contributed to a larger phenomenon that has severely crippled society.

Advocates praise RTW’s union-busting qualities, claiming they spur economic growth in places that have passed the legislation. From their perspective, firms view unions as a nuisance, so when a state passes RTW, it fosters a more business-friendly environment. Employers view RTW as a major pull factor, so the implementation of the laws attracts corporations, investment, and jobs to the state. To bolster this claim, supporters often mention that foreign car manufacturers have mostly built their American facilities in RTW states.

Some studies have found that RTW increases manufacturing employment by one-third. In the context of a decaying manufacturing sector, it is unsurprising that these arguments have captured the hearts of many. Importantly, RTW advocates minimize negative wage effects, dismissing them as too small to be significant. They claim that the boost in employment substantially outweighs any loss in income. Essentially, RTW supporters make little effort to distance the legislation from the harm it has on unions, instead citing that harm as one of its foremost benefits.

RTW’s opponents present their arguments regarding outcomes more effectively.

It is disconcerting that pro-RTW groups explicitly praise the damage wrought on unions by the legislation. This approach inspires doubt about the law’s true intent: is RTW really about protecting workers’ rights, or is it just another mode of attack in the long-standing war between business and labor? The pro-RTW logic is flawed here. When firms move to certain states as a result of the legislation, they are almost certainly responding to the expectation that they will get away with paying workers less in those places. This model of attracting business is neither fair nor sustainable. The United States would be more competitive internationally if it removed all regulations, but in addition to valuing growth, this country prizes quality of life.

By weakening unions, RTW makes it more difficult to ensure that the benefits of economic growth are experienced universally, drawing its ultimate value into question. In addition, RTW opponents are able to connect their issue with larger, universally-derided ones like wage stagnation and income inequality. These broader social problems provoke anger and fear in much of the populace, and tapping into these intense feelings enhances the case against RTW. By abandoning its focus on rights, pro-RTW transforms into pro-corporation, allowing the opposition to benefit from the emotions sparked by large-scale social problems.

Although RTW supporters are convincing on values and constitutionality, anti-RTW’s arguments will win over the public in the long-term by focusing on policy outcomes.

This debate spans multiple arenas of battle, but not all of them are equally important. While morality and legality are significant, ultimately RTW is a policy decision and therefore entirely dependent on its real, measurable impacts. Just because RTW is based on a solid theoretical framework and (probably) in line with the Constitution does not mean that it is an effective piece of legislation; it means that the law is passable in the most basic sense of the word. The public expects more from policy in the long-run, namely that it helps people and represents a step towards a more perfect union. If RTW benefits a select group of business-owners at the expense of vast swaths of employees, lawmakers should fight against its passage. The government has a responsibility to pass laws that aid the populace, withstanding external pressures from self-interested groups.

These blocks on laissez-faire capitalism are what allow our system to work for everyone, and we should cherish them. Of course, the government only has so much sway over public opinion. Eventually, the populace will decide whether RTW is effective based on the state of manufacturing and economic well-being, which I expect to bode well for opponents of RTW. The election of Donald Trump and the Republican stronghold over state governments makes it likely that more states will pass RTW legislation. However, the manufacturing sector in this country will probably continue to decline, and barring any major investment in social programs, income inequality will only worsen. As this occurs, the strong feelings excited by the anti-RTW arguments concerning policy outcomes and the exploitation of workers will only intensify, eventually reaching a boiling point where action is taken. The interesting question is not if this will happen, but when.

Until people grow frustrated enough with RTW to rise up against it, it is likely that this debate will appear to resolve itself in favor of the legislation.

Under Donald Trump, more states are likely to pass RTW, and the 2016 GOP platform even touted party support for a national RTW law. Depending on how his presidency goes, RTW opponents could mobilize within the next decade, or it could take longer. The concern is that unions will only continue to decay until this happens, eventually becoming completely obsolete. However, if the time span is lengthy enough that unions become irrelevant, the RTW dispute could transform into another one entirely. The opposition movement would revolve not around strengthening unions, but on emboldening the federal government to take up the cause of workers. This movement would encourage government action on measures like raising the minimum wage and mandating paid leave. Thanks to the interconnectedness of arguments surrounding RTW and other social issues, even if the union movement dies, the sentiment will only be transposed onto another fight for workers’ rights.

Nick Santulli is a junior Political Science major at Trinity University. He is the President of Trinity’s Student Government Association.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.

The graphic above was created by Andrea Acevedo.

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