One of my more prominent aims in sharing my thoughts via blog is to give controversial questions more than a sentence or paragraph. Most real controversies have many different parts, many different actors, many different consequences, and many different levels in which the controversy affects. Often I find this aim to be tedious and frustrating, because our political climate so badly underestimates the ability of real people to understand what’s really happening. If you’re looking for the “elitists” in politics, I submit that they are not those trying to give you all of the information, even when it might seem snobby or pretentious. The “elitists” are those that only give you a small piece of the information because they think you’re too stupid to handle all of it. Or they only give you a small piece because they don’t want you to know the larger piece…and they think you’re too stupid to find the answers on your own. I’ll give it to you straight out – this entire introduction is to make you feel bad if you stop reading halfway through. The best parts of every story are usually about 90% into the story. So please, hang with me for a bit. Put a glide in your stride and a dip in your hip. Let’s roll down the highway of labor management law, and why “Right to Work” laws are advertised as doing something that is already accomplished by federal law.
Much of this can be hashed out through a proper defining of the four categories of unions: Closed Shop, Union Shop, Agency Shop, and Open Shop. Actually, the Open Shop is pretty simple. You can’t be forced to pay anything to the union that trained you and represents you. And they still have to represent you, even though you’re just freeloading on the dues of actual paying members. Got it? Good.
First off, the Closed Shop is no longer legal in the U.S., and hasn’t been since 1947. With that said, there is some history that has implications on other forms of unions that are still legal.
The Closed Shop describes a job that requires membership in the union before being able to accept a position. Such a shop could essentially replace open positions with their own union members, giving the union an immense amount of input in management decisions.
This kind of union became a point of contention in the 1930’s and 40’s. The Wagner Act of 1935 was a huge win for unions and clamped down on a series of unfair labor practices committed by corporations, but conservative Republicans at the time were concerned that it gave unions too much power over management. This was signed into law by President Franklin D. Roosevelt, and spurred a flurry of attempts to strip it down for the next decade. During WWII, most unions said that they would abstain from striking during the war for any reason in order to prevent any adverse economic impact during wartime. But when the war ended in 1945, all bets were off. By this point, 25% of the workforce belonged to a union, and they were as strong as they had ever been, which did not sit well with some.
Finally, in 1947, the Taft-Hartley act passed through Congress, was vetoed by President Harry Truman, but then overcame that veto when sent back to Congress. This law had many far-reaching implications, and among them was making the Closed Shop illegal. It also sought to balance the power struggle by defining and eradicating unfair labor practices committed by unions (similar to the restrictions the Wagner Act placed on corporations) . Due to this law, the strongest option for unions became the Union Shop.
The Union Shop has a very unique, very confusing history, so please bear with me. Originally, after the passing of Taft-Hartley, the Union Shop took over for the Closed Shop because it differed from the Closed Shop for a key reason: a Union Shop does not require membership before hiring, and typically there was a time period set by the union for the employee to join the union. The most important part to take from this is that, after this law was passed, union membership could still be required for employment; it just gave more personnel power back to corporate management. This was a small change, but carried a substantial impact that set in motion a series of legislation over the next several decades that pushed more power into the hands of management and away from unions. The Union Shop is technically still legal, but it cannot exist in the way that it once existed, even directly after Taft-Hartley.
Due to several Congressional and court battles over the next few decades, the Agency Shop increased in prominence as a way for unions to continue to fund their huge training programs for high-skill positions while not forcing the employee to join the union or have their dues go towards any political candidate or campaign. What is still taken out in non-Right to Work states is called an “agency fee” or “fair share fee,” and it is necessary because, even though the law now says you cannot be forced to join or stay in a union, the union is still required to represent all employees, union and non-union, under their collective bargaining agreement. Because of this, Right to Work states are essentially saying that people can work at a job represented by a union, reap all the benefits of the union (including high-skill training, higher wages and benefits, more work protections), but not pay anything to the union. In a non-Right to Work state, you can receive all of these benefits, pay the agency fees that cover those services, and nothing more. Unions are even required to be able to prove in their accounting that certain monies are only used towards services and not political campaigns (the case that decided this will be discussed shortly).
At the Courthouse
Those are the shops, but the court history is even more fun. Seriously, I’m geeking like crazy with this stuff. After many individual battles, some that made it to the Supreme Court, a few finally made it to the high court that declared a significant change in union membership precedent.
In 1961, Machinists v. Street stated that the Railway Labor Act “denies the authority to a union, over the employee’s objection, to spend his money for political causes which he opposes.” This is a big deal, and if Taft-Hartley laid the foundation, this set the stage for an avalanche.
For the public sector unions, it came in 1977 from Abood v. Detroit Board of Education. This case declared agency fees in public sector unions constitutional, but stated that they could not charge agency fees equal to union dues. In other words, they could only charge the amount needed for union activities, not for political campaigns of which the members may have conflicting ideologies, much like Machinists v. Street had done for the private sector already.
Over the next several years, the court was able to better clarify this position through a few other cases. Then, in 1985, another bombshell from Pattern Workers v. NLRB, which stated that union members should be allowed to resign from the union at any time without notice. This forbid any consequences to resigning from the union, including termination of employment. As stated earlier, though, the union is still forced to represent the resigning employee in collective bargaining activities.
This all came to a head in the 1988 case of Communication Workers of America v. Beck, where the Supreme Court ruled that unions could not charge agency fees equal or close to union dues, mostly because it stated that unions need to be able to prove that they weren’t charging agency fees that were used towards political campaigns. They had to prove how much a union-paying member would pay for only collective bargaining activities, and the agency fee could not exceed this.
Summary, and Why This Matters to You
So here’s the deal. You cannot be forced to join a union anywhere in the U.S. In non-Right to Work states, you can be charged an agency fee in order to cover collective bargaining activities performed by the union on your behalf (and from which you benefit), but no part of that fee can go towards any political campaign or candidate. In Right to Work states, this means you can legally work in a union job as a non-union member and receive something for nothing. And here I thought Republicans had a problem with freeloaders.
The biggest problem with how Republicans present this law is that they call it a choice to join or not join a union. It’s pretty clear that the choice to join or not join is ingrained in federal law. Then they say you shouldn’t have to give money to an organization that funds Democrats…awfully convenient for a Republican to say this. But this, too, is not true, as you cannot be required to pay an agency fee more than the amount the union clearly defines they need to perform collective bargaining and training activities. All this law really does is encourage people to get something for nothing, while weakening Republican election opponents.
This matters to you, and me, and all of us. And just throw out the whole “unions have gotten benefits for us all” stuff because apparently our society has become desensitized to the significance of this. It’s all true, but it’s a very big picture that not everyone can see. So let’s put it this way. A union for a construction company provides training in highly-skilled positions in order to keep their employees as safe as possible. These are serious, life-threatening jobs. Ever wonder how that guy up on the scaffolding can do it without fear? Because he did it a thousand times in training provided by his union. By telling employees that they no longer have to even pay agency fees for the services they are being provided, these services will start to lose funding and become unavailable.
Remember that, Wisconsin. We’re probably only a week or so away from becoming the 25th Right to Work state in the country. Remember this, all of this, next time you’re crossing a bridge and see a crane operator moving a steel girder. He looks kinda young, right? I wonder how many times he’s done this before. I wonder how much training he received. Think this doesn’t matter to you? Then keep your eyes on the road and cross your fingers.
P.S. I realize I just put out a post not long ago saying that Democrats cannot make this an issue in upcoming campaigns if we hope to win. At that time, I was under the impression that this was not actually going to come up in Wisconsin before the ’16 election, especially because Governor Scott Walker outright stated he wasn’t interested and it would just be a “distraction.” Now that this is inevitably going to happen, I’m hoping more people will be receptive to what it all means.