“Right to work” is the most dishonest phrase in American political discourse. It sounds like it’s defending people’s right to earn a living. But as used by its supporters, it means making it impossible for workers to form an effective union, couched in the language of “freedom” and “choice.”
Specifically, it means laws banning “union shops,” in which everyone in a workplace has to join the union or pay a fee to cover the cost of union representation. Twenty-four states have such laws. All were in the South and West until last year, when Indiana and Michigan enacted them. Michigan’s law was rammed through the Republican-dominated legislature in a lame-duck session last December.
The Michigan law was “pretty devastating for the labor movement,” says Erin Johansson of American Rights at Work. It came in the state where the United Auto Workers’ six-week occupation of General Motors plants in Flint in 1937 won the victory that opened the doors for unions throughout American industry, the state whose union labor defined the working-class prosperity of World War II to the 1970s.
Both Michigan Gov. Rick Snyder and Dick DeVos, the heir to the multibillion-dollar Amway fortune who bankrolled the campaign for the law, stuck to the party line about “freedom.” Snyder said the law would give workers “the freedom to choose” and unions “an opportunity to be more responsible to their workers,” because instead of automatically collecting dues, they’d have to show workers “a value proposition.”
“Absolute horseshit,” responds Ed Ott, former head of the New York City Central Labor Council. “This is a total offensive against workers. They don’t want workers to have any say. After workers vote for a union, they don’t want them to maintain membership.”
This year, “right to work” measures were introduced in 17 states, according to Peggy Shorey, director of state government relations at the AFL-CIO. Ten were defeated, including those in Missouri, Kentucky, and New Hampshire, where Gov. John Lynch vetoed one in 2011. Republicans in the Ohio legislature introduced one in early May, but the state senate president said he didn’t want to give Democrats an issue to raise funds on. (Ohio voters overwhelmingly overturned draconian limits on unions in 2011.) Sen. Rand Paul (R-KY) introduced one in January, but it hasn’t gotten a committee hearing.
“It’s striking that they were not successful in passing it in Missouri,” says Shorey. The most significant measures still pending, she says, are in North Carolina and Pennsylvania. In North Carolina, House Speaker Thom Tillis proposed making the state’s “right to work” law and a ban on public-worker unions an amendment to its constitution, after declaring that he wanted to keep North Carolina “the least unionized state in the United States.” In Pennsylvania, the sponsor is Rep. Daryl Metcalfe, chair of the State Government committee, who also sponsored the state’s voter-ID law and fulminates against “illegal alien invaders.”
Neither measure has made it out of committee, but “after Michigan, anything could happen,” warns Ott.
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The Michigan and Indiana laws came as part of the 2011–'12 offensive against worker rights in the upper Midwest, but the concept emerged after the great union victories of the late 1930s. The phrase “right to work” was coined in 1941 by William B. Ruggles, an editorial writer at the Dallas Morning News who didn’t want to join a union. His bosses feared that federal laws and regulations backing union rights were forcing unions down the throats of employers and socializing industry. Ruggles proposed a constitutional amendment guaranteeing the right to work with or without union membership.
Lobbyist Vance Muse, founder of an organization called the Christian Americans, picked up the campaign—but realized that it would be much easier to win state laws than a constitutional amendment. Without such a law, he argued. “white women and white men will be forced into organizations with black African apes whom they will have to call ‘brother’ or lose their jobs.” He also said the law would help “good niggers, not these communist niggers.”
He won support from business groups, and Texas outlawed the union shop in 1943. Arkansas followed in 1944. The Taft-Hartley Act of 1947, which restricted strikes and banned communists from being union officials, specifically allowed states to pass such laws, in its Section 14(b). By 1960, 18 states had done so, and Wyoming, Louisiana, Idaho, and Oklahoma trickled in over the next few decades.
In 1961, the Rev. Martin Luther King, Jr. called “right to work” a “fraud,” saying that it “provides no ‘rights’ and no ‘works.’ ...Its purpose is to destroy labor unions and the freedom of collective bargaining.” In 1965, the high-water mark of liberal power in Congress in the last 70 years, the House voted to repeal Section 14(b) of the Taft-Hartley Act, but a filibuster in the Senate preserved the provision.
In today’s network of anti-union think tanks and lobbying groups, the two most concerned with right to work are the National Right to Work Committee and its offshoots, based in Washington’s Virginia suburbs, and the Mackinac Center for Public Policy, in Michigan.
The National Right to Work Committee, founded in 1955, has grown to include a legal offshoot, the National Right to Work Legal Defense Foundation, and the National Institute for Labor Relations Research. Reed Larson, who headed NRTWC for 45 years, touts the Foundation, established in 1968, as the nation’s first conservative litigating organization.
The committee proclaims that it is “dedicated to the principle that all Americans must have the right to join a union if they choose to,” but its masthead motto is “No one should have to be forced to pay tribute to a union boss to get or keep a job.”
Asked what these organizations have done to support the right to join a union, spokesperson Patrick T. Semmens says that there’s no risk that union membership will be outlawed, but “the right not to join or associate with a union...is not currently the law and therefore is our focus.”
In practice, responds Erin Johansson, if a worker complains to the National Labor Relations Board that she was illegally fired for union activity, it can take eight or nine years to get her job back. “We have nothing now. We don’t have a functioning NLRB,” she adds.
Republicans in the Senate have filibustered President Obama’s nominees to the NLRB for years, to prevent if from having a majority that recognizes workers’ legal rights. If the vacant seats are not filled by August, the board won’t have a quorum. In January, a federal court said Obama’s recess appointments were unconstitutional, and voided rulings they participated in. The National Right to Work Foundation filed an amicus brief in that case, the result of a lawsuit filed by the Chamber of Commerce-backed Coalition for a Democratic Workplace.
The Foundation has won several Supreme Court decisions banning unions from using dues collected from nonmembers for activities not directly related to collective bargaining—that is, supporting pro-union candidates or legislation. It’s also represented people who don’t want to join unions or pay dues, and calls strikebreakers “courageous individuals.”
The Foundation’s list of “Big Labor’s Top Ten Special Privileges” includes just about anything that would make a union effective.
It claims that union “monopoly bargaining” is “depriving employees of the right to make their own employment contracts.” In other words, it denies them their right to ask for a raise on their own and not get one—or to undercut the union by agreeing to work for less.
It claims that unions have the privilege to “strong-arm employers into negotiations,” because “unlike all other parties in the economic marketplace, union officials can compel employers to bargain with them.” As opposed to employers’ right to ignore workers or tell them, “you’re fired, don’t let the door hit you in the ass on the way out.”
It claims that union workers have the privilege to “refuse to work while keeping their job,” because they can’t be fired for going on strike. This isn’t exactly true. Employers can’t fire workers striking against unfair labor practices, but they can legally “replace” workers striking for more money. The union movement of the mid-20th century was strong enough so employers rarely did that until after 1981, when President Ronald Reagan fired striking air-traffic controllers. And if employers can fire striking workers, that makes it next to impossible to have a successful strike.
Semmens disagrees. “There were strikes before this special legal power was granted to organized labor,” he says. “Also, it wouldn’t be on that list if the same applied to nonunion workplaces, but currently it only applies to unions...hence it’s a special privilege.”
In reality, before federal law recognized union rights in 1935, many strikes ended with the workers being fired and blacklisted. One of the few that was partially successful was the “uprising of the 20,000,” a 10-week walkout by garment workers in New York in 1909–'10. Their employers refused to recognize the union, but gave the workers a raise and shorter hours.
On the other hand, the workers weren’t able to win stronger safety standards. One of the factories they struck was the Triangle Shirtwaist Company.
Since Reagan’s action, strikes have almost evaporated. In 1981, there were 145 major strikes, involving 729,000 workers, and that was one of the lowest numbers of the post-World War II era. Last year, there were 19 major strikes, by a total of 148,000 workers, and in 2009, there were five, by a mere 13,000 workers—the fewest since the federal Bureau of Labor Statistics started keeping records in 1947.
The Mackinac Center, a key backer of the Michigan right-to-work law, also denies that it’s anti-union, claiming that such laws don’t reduce unions’ bargaining leverage. On the other hand, its main complaint about union shops is that when workers can’t opt out of paying dues, “this gives unions a stronger voice at the bargaining table.”
Mackinac also supports eliminating government workers’ right to collective bargaining and opposes “prevailing wage” laws that require government-hired construction companies to pay union wages.
If one wants proof of the union slogan that “right to work” really means “right to work for less,” it’s in a book excerpt posted on the National Right to Work Committee’s Web site. In Stranglehold: How Union Bosses Have Hijacked Our Government, Reed Larson blames the New Deal for establishing the plague of “compulsory unionism.” He writes that the National Industrial Recovery Act of 1933, by setting minimum wages in various industries, “trampled the rights of workers” by denying them the freedom to make a contract to work for less money.
The Supreme Court, then profoundly anti-labor, agreed. In 1935, it held that the NIRA’s minimum wage was “an intolerable and unconstitutional interference with personal liberty and private property” because its effect, “in respect to wages and hours, is to subject the dissenting minority...to the will of the stated majority.”
For many on today’s far right, that decision represents a lost golden age of American jurisprudence. The dominant labor-law decision of the pre-1937 era was 1905’s Lochner v. New York, in which the Supreme Court ruled that a New York state law banning bakers from working more than 10 hours a day or 60 hours a week unconstitutionally infringed freedom of contract. It set a precedent used to rule against other wage-and-hour legislation and bans on “yellow-dog” contracts in which workers had to agree not to join unions. The Court also struck down laws against child labor.
The Court more or less overruled Lochner in 1937, when it upheld Washington state’s minimum-wage law in West Coast Hotel Co. v. Parrish. Chief Justice Charles Evans Hughes wrote that the freedom to contract was not absolute, and that the law covered “a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenseless against the denial of a living wage.” The “recent economic experience” of the Depression provided “an additional and compelling consideration,” Hughes added.
Current federal Judge Janice Rogers Brown, a George W. Bush appointee to the D.C. Circuit Court of Appeals, told the Federalist Society in 2000 that this decision “marks the triumph of our own socialist revolution,” because it gave property rights “a second-class status.”
The National Right to Work Foundation fits well into this movement. Of its 15 staff lawyers, 11 are members of the Federalist Society, five either got their law degrees or have taught at the religious-right law schools of Regent University and Ave Maria, and three have worked or interned at Charles Koch organizations.
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National Right to Work, the Mackinac Center, the Center for Union Facts, and the Coalition for a Democratic Workplace, says Erin Johansson, are all “part of the web” of groups funded by the five main far-right foundations—the Waltons of Walmart’s Walton Family Foundation, the Coors family’s Castle Rock Foundation, the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation, and the John M. Olin Foundation.
“They’re an arm of companies,” she says. “Their intent is to destroy unions.”
Other major backers include Charles and David Koch, the American Legislative Exchange Council, and the Chamber of Commerce, which has become “much more militant, committed to eradicating the New Deal” since the Reagan era, says Ed Ott.
The Michigan law resulted from an array of local circumstances, says John Armelagos, vice president of the Michigan Nurses Association. Tea Party Republicans gained control of the legislature and governorship in 2010. Last November’s defeat of a union-backed ballot initiative to make it a constitutional right for workers to join unions encouraged “right to work” forces, and the bill had to be passed before the incoming legislature took office, because Democrats had gained enough seats to defeat it. But it wouldn’t have gotten through if the union movement was politically stronger, says Ott. The loss of union blue-collar jobs—only 7 percent of private-sector workers are union members—isolates public-sector workers politically, he explains. Nonunion low-wage workers “don’t get that they’re the only ones without benefits.”
The far right is good at “manipulating language” to get middle-class people to go against their interests, says Armelagos. “It’s not about the right to have a job. It drives down wages and increases income inequalities.”
The state AFL-CIO, the Michigan Education Association teachers’ union, and the state American Civil Liberties Union are challenging the law in court because it was passed without a public hearing, he adds. In the meantime, several unions, including the MEA and the Michigan Nurses Association, have gotten their contracts extended by five or six years in the hope that the law will be repealed by then.
The “right to work” network’s other main argument is that weakening unions stimulates job growth, that jobs are increasing in states with right-to-work laws. As companies often prefer to move to places with the lowest wages and the weakest safety regulations—witness the garment industry’s migration from the Triangle Shirtwaist Company to the Rana Plaza factory in Bangladesh over the last century—this makes sense, although Armelagos says, “companies are still moving out of Indiana.”
It’s harder to sell low wages to the public. In 2012, according to the Bureau of Labor Statistics, the median weekly wage for union workers was $943 a week, compared to $742 for nonunion workers. To get around this, they argue that per capita income in “right to work” states, adjusted for the cost of living, is equal to, almost equal to, or more than it is in “forced union” states.
Texas has one of the highest per capita incomes in the nation once costs are factored in, the National Institute for Labor Relations Research claimed in April. However, that ignores how income is distributed, the difference between a billionaire in Dallas and a teacher in Austin or a convenience-store clerk in Waco. In the beginning of the Great Recession, seven of the 10 states with the worst gaps between the top and middle classes had “right to work” laws, and five of the 10 with the biggest gaps between rich and poor did, according to a 2012 study by the Center for Budget and Policy Priorities and the Economic Policy Institute. On the Gini coefficient of economic inequality, six of the 10 most extreme states in 2012 were “right to work.”
Texas made all three of those top 10s.
“There’s a wing of the conservative business community that will accept no opposition,” says Ed Ott. “They’re not committed to democratic forms. It’ all about profit and privilege.” Still, he warns that employers should be careful what they wish for. The labor laws of the 1930s, he says, were passed to ensure smooth production, giving workers rights and better pay in order to prevent disruptions—but “in the absence of legal protection, direct action’s what you learn to do.” The great sitdown strikes of 1937 would be illegal today.
However, he laments that “we have not developed an effective political opposition.”
Shorey is more optimistic. “Our members’ understanding of this issue has gotten really clear,” she says. “It’s really about going after everyone in the middle class, driving down wages, creating unsafe working conditions.”
“This fight ain’t over,” says John Armelagos.
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