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labor Laws that Decimate Unions May be Inevitable. Here’s How Labor Can Survive.

As more states feel they’ve been put at a competitive disadvantage by their right-to-work neighbors, the pressure only increases to follow suit and enact their own right-to-work laws. And after a while, a national right-to-work law might not be far behind. “I suspect that will happen within the next decade,” says Marquita Walker, an associate professor of labor studies at Indiana University.

Sometime later this week, a right-to-work bill appears certain to land on Wisconsin Gov. Scott Walker’s desk. Despite the protests of thousands in Madison, he’ll sign it, dealing another blow to labor unions already crippled by laws passed during the Republican’s last term in office.
It will also be a symbolic threshold: Wisconsin would be the 25th state to go right-to-work, putting fully half the country under laws that allow employees to opt out of paying dues, even though the union has the obligation to represent everyone in their workplace.
As more and more workers benefit from a collective bargaining without paying for its upkeep, unions have become weaker, which lessens the incentive to join. The resulting tailspin, writ large, has been primarily responsible for the massive decline in unionization over the past half-century — making the struggle to stave off right-to-work laws a fight for union survival.
But now, with Illinois, Missouri and Kentucky eying similar measures, right to work could soon be a solid majority. As more states feel they’ve been put at a competitive disadvantage by their neighbors, the pressure only increases to follow suit. And after a while, a national right-to-work law might not be far behind.
“I suspect that will happen within the next decade,” says Marquita Walker, an associate professor of labor studies at Indiana University. A similar setback could come a lot sooner for public employee unions, in the form of a Supreme Court case that might drastically undermine their ability to collect dues.
But is labor’s obliteration inevitable? Not necessarily. Marquita Walker thinks that the first step is acceptance of a right-to-work future, which would free up resources for a realistic response.
“If and when that happens, workers have to begin to think about looking at unions differently,” she  says. “If the tried and true mechanism by which they gained power is no longer as effective as it needs to be, there has to be something that takes its place. And I’m not sure that even the labor movement knows what that is.”
Well, the labor movement has a few thoughts — some to shore up unions and others to protect workers' rights more generally. Here are the main ideas.
1. Allow for members-only unions In a recent paper, UC Irvine School of Law professor Catherine Fisk made the case for allowing unions to represent only the people who do pay dues.
The problem with right-to-work laws is that they create a collective-action problem. If enough people don’t pay up voluntarily, the union becomes weaker, which then creates the impression that it’s not doing anything, which further diminishes the case for joining.
But what if the union had to serve only those who support it financially? If you’re covered by the contract only if you help pay the cost of negotiating it? You might still benefit from the other things that a union does politically to advocate for its members, but for everything else, it’s like belonging to a country club. (Obviously, dues would need to stay low enough so it doesn’t start functioning like an actual country club, accessible only to those with expendable income.)
Fisk acknowledges that it’s not an ideal scenario but says members-only unions could be ideally suited for conservative places where people have bought into the idea that “forced unionism” infringes on their individual rights.
“What they’re anxious about is the traditional model of unions that says, once a union has been selected by the majority, it governs everybody,” Fisk said at a symposium in January. “Living in the world we live in, I think members-only unionism is better than no unionism, and that’s the choice we face.”
2. Pass more laws that protect workers’ rights generally Colorado State University business school professor Raymond Hogler just published a history of right-to-work laws, and he argues that they’re the primary cause of union decline in the country. Ideally, he says, Congress would repeal the section of the Taft-Hartley Act that allows states to pass them.
He recognizes that’s probably impossible, though — the failure of labor law reform in the first half of President Obama’s term drove home the difficulty of making progress on Capitol Hill. Rather, Hogler thinks a state-level campaign to end “at-will” employment as a matter of common law — as Montana did in 1987 with its Wrongful Discharge from Employment Act —would extend job security that had been a benefit of union membership to all workers.
Scholars have proposed other legislative tweaks that might help rebuild worker bargaining power:
Require disclosure of wage and salary information. NYU Law professor Cynthia Estlund makes the case that employers should have to make compensation levels public, which would allow workers to bargain for higher pay if they’re being lowballed relative to their colleagues. In that way, mandated disclosure would accomplish another key function of unions: curtailing the worst forms of wage inequality, by creating pressure on employers to maintain the impression of fairness.
Make union elections automatic: The hardest part about organizing a union is, well, organizing — before employees can even demonstrate enough support to schedule an election, they have to get past layers of company opposition and worker skepticism. That can be prohibitively expensive, and though unions have their occasional victories, most scholars and activists don’t believe that a significant recovery in union membership is possible under current labor law. If workers had the default chance to vote on representation every few years — like they do in all types of political elections — it’s a lot more likely that they would end up in a union.
Give unions a role in immigration reform legislation: Any law that eases immigration to the United States, or naturalization of undocumented people already here, will require administrative infrastructure. The labor movement has embraced immigration reform, drawing much of its new strength from partnerships with immigrants rights groups. Allowing worker organizations to help ease the process through processing applications, training people to meet employment requirements, supporting immigrant integration, etc., could more firmly align unions with an emerging force in American politics.
Strengthen “alt-labor” organizations through freedom-of-association protections: Unions aren’t the only organizations that can channel labor power: “Worker centers” such as the National Day Laborer Organizing Network and the National Domestic Workers Alliance, often funded through unions and foundations, have made significant gains even without formal union recognition. Their work could get easier, though, if restrictions on strikes, demonstrations and company unions were eased, legal scholars argue.
It’s worth noting that the National Labor Relations Board is doing everything within its power to make things easier for workers to unionize, like streamlining election procedures, and moving toward making franchisors and general contractors liable for the labor law violations of their franchisees and subcontractors. Much of its actions, however, is likely to get tied up in the courts for a long time.
3. Just work harder to prove unions are valuable. What about the meantime? What should unions do if Scott Walker can’t be recalled, right-to-work laws can’t be repealed, state-level protections take a while to pass, and Congress continues to do nothing? It’s probably safest to proceed assuming the worst-case political scenario. In fact, some observers believe that unions have already wasted too much time and energy trying to change the rules, rather than building strength under the current framework.
After all, union death isn’t inevitable in right-to-work states. Several powerful unions have hung on or even grown in that environment. Take Culinary Union Local 226 in Las Vegas, where about 90 percent of its 60,000 hotel and casino employee members pay dues. Although much smaller, the International Alliance of Theatrical and Stage Employees has growth exponentially in Southern states like Georgia, which have passed production tax credits in recent years to lure the film industry.
Being in a service sector where the jobs can’t be outsourced overseas helps, as does being heavily regulated or tied to government funding streams.
At the very least, however, unions could do a better job of reaching out to members as a reminder of what they do. They’ve been trying in Indiana since a right-to-work law passed there in 2012, and so far, union membership has actually held steady (though it might decline soon, as a number of contracts expire).
“Unions have been woken up by this and are making an extra effort,” says Joe Varga, an assistant professor of labor studies at Indiana University. “Right-to-work situations make unions work harder. Of course, one could make the argument that they should’ve been doing that all along.”
David Rolf, head of the Service Employees International Union in the Pacific Northwest, has been an advocate of alternative modes of organizing for years now. At a January symposium, he pointed out that most countries don’t have the “agency shop” model under which workers can be forced to pay fees — even in Germany, where social norms have long supported high union membership (though it also has declined in recent years). Australian unions, Rolf points out, bounced back after an anti-labor government significantly curtailed their power in 1996.
“They had to in many ways re-earn the love and loyalty of members that leadership had taken for granted after 100 years,” Rolf says. In that way, existential threats can be energizing.
“It reminds us that now is the time for risk and experimentation and trying to build new models,” Rolf says. “Because whether we like it or not, some of the tools associated with those models are going away.”
Lydia DePillis is a reporter focusing on labor, business, and housing. She previously worked at The New Republic and the Washington City Paper. She's from Seattle.