Faculty Blog, Teixeira de Sousa

Left-to-Work for Less

Missouri voters gave the American labor movement a very welcome bit of good news earlier this month when by a 2-1 margin they refused to become the 28th state in the nation to adopt right-to-work legislation in the private sector.  Coming on the heels of the U.S. Supreme Court decision in Janus v. AFSCME, which held that public servants such as teachers, social workers, police officers, and firefighters cannot be required to pay their fair share of union dues used to fund collective bargaining and contract administration, the Missouri victory demonstrated an unwillingness among voters to follow in the Court’s footsteps.

While the Court in Janus dictated a right-to-work framework for the nation’s public sector workforce, ostensibly rooted in First Amendment concerns about state action and compelled speech, the citizens of Missouri took an alternate path by exercising their federal statutory rights under the National Labor Relations Act (NLRA).  The NLRA, originally enacted in 1935, was amended in 1947 to give states a choice on the issue of whether to permit or restrict union security agreements.  The majority of the 28 states that are right-to-work became thus in the 1940s and 1950s.  It is worth noting that the win for labor in Missouri bucked a second and much more recent wave of right-to-work legislation at the state level: Indiana and Michigan in 2012, Wisconsin in 2015, West Virginia in 2016, and Kentucky in 2017.

Is there a lesson then to be learned from Missouri?  Does this victory highlight a growing chasm between elite Justices and a public increasingly cognizant of Big Labor’s importance to their quality of life and economic stability?  One key take-away is that the labor message to voters throughout the country must become as clear as it was in the public relations campaign waged in Missouri: right-to-work means America’s forgotten men and women being left-to-work for less money.

There is reliable data showing that wages in right-to-work states are appreciably lower than in states (such as Massachusetts) where private sector workers can be compelled to pay the portion of union dues that go toward expenses such as those associated with collective bargaining and representing the worker in a grievance arbitration.  This pay differential, what can be dubbed a right-to-work tax paid by the average full-time worker, amounts to roughly $1,500.00.  That doesn’t even begin to cover the associated decrease in other forms of compensation, such as employer-provided health insurance and retirement benefits. The working class understands this—a recent Gallup poll shows that 61% of adults in the U.S. approve of labor unions—and will turn out at the ballot box in order to prevent a further decline of state rates of unionization, provided it is given clear and accurate information in advance of a vote.

But keeping the public apprised of the multitude of discrete legal issues involved in this fight is a daunting task.  For instance, post-Janus, a Pandora’s box of troubles was unleashed with respect to long-standing practices enabling employers to automatically deduct unions dues from member and nonmember paychecks alike.  The Supreme Court held that bargaining unit members must now be presumed to be objectors and immune from any compelled fee-sharing until they affirmatively opt-in to any payroll check-off mechanism.  The Court’s selection of this position as the baseline will make it far less likely that individual workers, thwarted by inertia even if supportive of their union, will take the necessary steps to opt-in and contribute their fair share of the costs associated with union representational activities.   Some legal commentators, such as Aaron Tang, have proposed that non-right-to-work states adopt direct reimbursement laws imposing obligations on public employers to reimburse unions for these costs.  Of course, all of this means that unions must now devote increasingly scarce resources to simply maintain the status quo, rather than work toward increasing their share of political power relative to corporations.

And the voters may not even get a chance to weigh in on a large number of battles over right-to-work laws in the short run because so many of them are being waged in the courts.  Already we’ve seen litigation brought by objecting nonmembers seeking refunds of monies paid prior to the Court’s Janus decision.  And even if these cases rest on legally weak foundations due to the fact that public sector unions had been relying in good faith on Supreme Court precedent when they collected the agency fees, these lawsuits represent a distraction from the far more important work that should occupy the attention of labor unions and their supporters.

In the end, the losers in all of this are the American working men and women who have seen their wages decline, their benefit packages reduced, and their economic well-being grow increasingly precarious.  If labor is to prevail, the Missouri lesson must be taken to heart, and the appeals to voters and workers must be crystal clear in their message that right-to-work laws help the rich and corporations while unions help the working class.


Monica Teixeira de Sousa teaches Labor Law at New England Law | Boston and most recently wrote about labor issues in the Worcester Telegram: http://www.telegram.com/opinion/20180810/as-i-see-it-steelworkers-daughter-calling-for-end-of-national-grid-lockout



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