History of Unions and Right-to-Work Laws

During the colonial and revolutionary period of the US, most Americans practiced agriculture. The early US also had a substantial population of laborers, a group that included artisans, indentured servants and slaves. Many laborers resided in the major colonial cities of Philadelphia, New York and Boston, and at times these urban laborers organized against poor working conditions and low pay. The population of laborers in the US increased during the Industrial Revolution, as many Americans, including women and children, transitioned from agriculture to industrial jobs. Some unions existed by the start of the US Civil War in 1861, but by and large laborers remained unorganized.

The late 19th century, however, witnessed an increase in union activity. Early unions like the National Labor Union and the Knights of Labor emerged in the post-Civil War landscape but did not last long. On May 3, 1886, the Haymarket Affair turned public support against organized labor. After Chicago police fired into a group of striking laborers, an anarchist threw a stick of dynamite at the police and the explosion killed an officer. The incident did not spell doom for unions in America and Samuel Gompers helped the American Federation of Labor establish itself as one of the nation's largest labor unions.

Union activity in the US continued to increase, and in July 1935, unions received greater political protection when President Franklin Roosevelt signed into law the National Labor Relations Act. According to Roosevelt, the Act protected "the right of self-organization of employees in industry for the purposes of collective bargaining." It imposed a duty on employers to engage in collective bargaining with unions, and imposed a duty on workers to pay those negotiating unions under union security agreements. By 1947, however, some members of Congress proposed changes to the pro-union structure of the NLRA, and, over the veto of President Harry Truman, passed the Taft-Hartley Act. That Act amended parts of the NLRA, such as subjecting labor unions to claims of unfair practices and only allowing union shops in the absence of state law to the contrary.

Section 164 of the Taft-Hartley Act established the foundation for right-to-work laws by allowing states to prohibit union security agreements, or compulsory union membership. Within a year of the Taft-Hartley Act's passage, 12 states passed [PDF] right-to-work laws. Several more followed suit throughout the 1950's. As of December 2013, 24 states had enacted right-to-work laws. Michigan became the most recent state to pass a right-to-work law in December 2012. Michigan's law covers both public and private sector employees. The law does not prohibit employees from becoming members of labor unions, and instead allows employees the right to choose whether to refrain from union activity. The law creates a "right-to-work" by prohibiting union activity from being a required condition of employment.

Right-to-Work Laws

A report published by the Congressional Research Service in December 2012 acknowledged [PDF] the difficulty of accurately assessing right-to-work laws and the economic outcomes of individual states. The report reviewed studies that focused on the effects of right-to-work laws on job growth and wages, and found that the results of the studies are mixed and do not support any one particular theory or trend. Many early-adopter states of right-to-work laws had below average unionization rates, and such laws did not depress unionization. Data, depending on the state, can show that right-to-work laws either increase or decrease hiring or wages.

Twenty-one states passed right-to-work laws, either by statute or state constitutional amendment, before the year 2000. As of 2009, ten were a result of state constitutional amendment. Many of the states currently involved in litigation, ballot initiatives or other legislative endeavors regarding right-to-work laws or constitutional amendments are typically regarded as union strongholds.

Indiana passed a right-to-work law in January 2012 and union members filed suit to block implementation of the law in February 2012. A judge for the US District Court for the Northern District of Indiana dismissed the lawsuit in January 2013, stating that creating a favorable business environment in the state is a legitimate reason for the law. When the suit was later filed in state court, an Indiana Superior Court judge found that law violated the Indiana constitution. The state law required local unions to provide services to individual employees represented by the union without the union being compensated for those services. The Indiana Attorney General plans to appeal to the Indiana Supreme Court.

Governor Rick Snyder of Michigan asked the Supreme Court to assess the constitutionality of the law in January 2013. The American Civil Liberties Union of Michigan filed a lawsuit against the state of Michigan, asserting that Michigan violated the state's Open Meetings Act when it prevented the public from entering the capitol building during debate over the right-to-work legislation. Several Michigan unions challenged the right-to-work law directly in February 2013, filing suit in the US District Court for the Eastern District of Michigan. A Michigan appeals court later ruled that right-to-work law applies to state employees.

However, several states recently rejected right-to-work initiatives. The New Hampshire House of Representatives rejected a right-to-work bill in February 2013. The New Hampshire House of Representatives and Senate had passed similar legislation in 2011, but it was vetoed by Governor John Lynch. The Maine Senate rejected a right-to-work bill in April 2013, just two days after the Maine House of Representatives also rejected the bill.

The Buckeye Institute for Public Policy Solutions published [PDF] a report in March 2012, arguing for state action to pass right-to-work legislation. Several experts suggest that Ohio is poised to become the next right-to-work battleground state. Right-to-work activists are currently collecting signatures to force a ballot initiative in November 2014 to amend the state constitution. The amendment would ban mandatory union membership and prohibit in-state unions from charging non-members dues.

The Courts and Labor Law Today

Recently, the Boeing Company and the National Labor Relations Board (NLRB) underwent a controversial legal battle that eventually resulted in the NLRB dropping the case in 2011. The charge against Boeing, a corporation that designs, manufactures and sells aircraft internationally, was led by Lafe Solomon, then General Counsel of the NLRB. The NLRB's and Solomon's claim was that Boeing was opening a massive assembly plant in South Carolina, a right-to-work state, in retaliation against striking union workers in the Seattle, Washington area.

Republicans targeted this case in their criticism of the Obama Administration, claiming it was an example of government overreach and pro-union legal practices that infringed upon legitimate business practices. Additionally, the number of jobs being brought to South Carolina, led to claims that Solomon, and Obama by extension, were "job killers," despite the potential loss of jobs in Washington. The House passed a bill in September 2011 in direct response to this situation that would have limited the NLRB's power to order the closing or relocation of a factory, even when labor laws are violated. This criticism is what many spectators believe led to the charges being dropped and Solomon not being appointed to a permanent post with the NLRB. The cited reason for dropping the charges was an agreement that a different airliner would be built in the Seattle-area plant, thus there would not be massive job losses.

In the past year, several lawmakers in Washington have pushed for the state to pass a right-to-work law out of fear that they will lose Boeing as an employer to another state. In November 2013, a Washington union rejected a contract presented by Boeing, thus leading to discussions of Boeing leaving the state. So far, the response from most Washington lawmakers on becoming a right-to-work state has not been positive.

The conversation surrounding this case epitomizes the pro-union versus pro-business claims that labor law brings to the forefront. Since the case never went to court, no determination was ever made as to whether or not Boeing acted in retaliation, thus violating the National Labor Relations Act and Fair Labor Standards Act (FLSA). The NLRB has said that they would still likely pursue action in a similar case today, and, if circumstances had not changed, they would have continued with their actions against Boeing.

In 2011, the US Supreme Court ruled on one case pertaining to retaliation under the FLSA. This was a very narrow look at what "filed any complaint" means under the act. The Court ruled that both oral and written complaints sufficed to satisfy this provision.

Some other narrow questions pertaining to labor law being ruled on by the U.S. Supreme Court this term include what "changing clothes" means under Section 203(o) of the FLSA and whether an employer and union can violate Section 302 of the Labor Management Relations Act by entering into a neutrality agreement. There is also a petition [PDF] pertaining to the relevance of a governor's subjective motives for exercising a state's inherent power and contractual right to reduce the size of its unionized workforce when looking at the constitutionality of such a law.

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