labor Rolling Back “Right-To-Work” in States
n March 24, Michigan governor Gretchen Whitmer signed legislation repealing a 2012 law that made Michigan a “right-to-work” (RTW) state — the first time since 1965 that a RTW law was repealed and only the fifth time ever since these laws were first introduced in the 1940s. Michigan’s repeal dropped the number of RTW states to twenty-six.
Despite their name, RTW laws have nothing to do with guaranteeing a right to employment. Rather, they allow workers in unionized workplaces to opt out of paying for the costs associated with negotiating and enforcing their union contract. Employers tout them as a bulwark of freedom against “compulsory unionism,” while unions decry them for sapping union solidarity and resources by guaranteeing a “right to freeload.”
The news grabbed national headlines. President Joe Biden sent out an approving tweet. Labor groups celebrated, and employer groups acknowledged defeat while sounding ominous warnings about the consequences.
Why do so many people care about what seems on its face to be an arcane piece of labor law? Some labor partisans are excited that nonmember workers at unionized shops will again have to pay “fair share” or “agency” fees. Since it remains illegal in the United States to require union membership as a condition of employment, unions in non-RTW states allow workers who do not want to join their union to pay a fee that represents the costs associated with negotiating and enforcing the contract at their workplace. This generally ends up being a slightly smaller amount than what union members pay in monthly dues.
Surely many unions will appreciate the boost in revenue from the influx of agency-fee payers. Some might even use it to fund extra organizing, which can only help efforts to stem union decline. But as welcome as new agency-fee payers will be, they won’t make much of a dent in union decline.
Second, there just aren’t as many nonmembers in existing union shops as one might expect. Generally, the assumption is that because RTW makes union membership optional, large numbers of workers will choose to “free ride” by quitting the union while still getting the benefits of union membership, leading to union decline.
But looking at the data, you see that this doesn’t usually happen, at least not on a major scale. For the most part, especially in the private sector, when there is a union in a particular shop, strong majorities of workers in that shop remain union members, even if they can opt out.
Academic studies show this, but you can also see it just by eyeballing the gap between union membership and collective bargaining coverage on unionstats.com. For the most part, the vast majority of workers who are covered by a union contract are union members, whether or not they are in RTW states. The gap is wider on average in RTW than non-RTW states, but not by much. In all states, the much bigger problem remains the huge number of workers with no union contract at all.
Focusing on Michigan, in 2012, the year the legislature enacted its RTW law, 16.6 percent of workers were union members, while 17.1 percent were covered by a union contract — a gap of 0.5 percentage points. By 2022, that gap had widened: 14 percent of workers were union members, while 15.3 percent were covered by a union contract — a gap of 1.3 percentage points. That’s a bigger gap, but the vast majority stayed members.
In 2022, there were roughly thirty-nine thousand workers in the state who had opted out of union membership in unionized private-sector workplaces. They will now be required to pay agency fees with RTW repeal. (The seventeen thousand public-sector workers who have opted out will still be able to opt out.) That compares to over four hundred thousand private-sector union members in Michigan, out of a total private-sector workforce of 3.8 million workers in the state.
Turning all thirty-nine thousand nonmembers into agency-fee payers will be a welcome source of additional revenue that can only help unions in Michigan. But that’s not why repealing RTW in Michigan is a big deal. Converting those nonmembers into agency-fee payers won’t do much to reverse the long-standing trend of union decline in Michigan, which began well before RTW, as shown here:
It would be difficult to look at this chart and claim that RTW has been the central cause of union decline in Michigan. There has been a lot more at work in the decline than simply RTW.
How Right to Work Matters
Some of what explains that decline is the fact that, under US labor law, unionization happens at the individual workplace level. That means that, unless the workplace is part of a company-wide agreement, as with the UPS or GM contracts, new workplaces are “born” nonunion unless and until there is a successful campaign to organize and bargain a first contract for that workplace. Meanwhile, unionized workplaces that close aren’t replaced, meaning that unions must “run to stand still,” or just to retain membership.
Some of this is due to all the rules that make it incredibly hard to organize unions, as anyone who has followed the organizing campaigns at Amazon and Starbucks is well aware. These rules, along with employers’ increasingly savvy and brutal use of them, led to a nationwide collapse in the number of union representation elections starting in the early 1980s, as shown in the following graphs taken from my book Labor and the Class Idea in the United States and Canada. The first graph shows the steep decline in the overall number of union representation elections, and the second shows a similar decline in the number of workers eligible to vote in representation elections. The collapse of new organizing has meant that unions have been unable to stem the tide as existing unionized establishments have closed, leading to union decline.
But while there is a lot more driving union decline beyond RTW, it would be dead wrong to suggest that RTW doesn’t matter. Clearly, RTW is playing a role, just not so much by enabling a bunch of free-riding workers to undermine solidarity and sap union treasuries by opting out of paying union dues. (Yes, there is a story about agency-fee payers in some unions dropping off, especially in the public sector, but there we need to think at least a bit about the conditions that lead to a union relying so heavily on agency-fee payers instead of members. Indeed, after Janus, some unions with public-sector members were actually able to increase their membership through intensive internal organizing.)
The fact that RTW generally doesn’t result in free riding is a good thing, as it puts the lie to the Right’s narrative of “forced unionism” whereby unions hold helpless workers captive who would otherwise prefer to be “liberated” from their union membership. It suggests that most workers who experience the benefits of having a union understand the importance of supporting it financially at the very least.
Still, RTW is clearly associated in some way with union decline, along with a slew of other anti-worker outcomes, including growing inequality, decreased political power, and more dangerous workplaces. It definitely matters. But how, if not through the direct effects of the law?
The Symbolic Power of Right to Work
Here we need to think about the symbolic power of RTW laws. “Symbolic” does not mean “irrelevant.” Rather, it means that RTW serves as a symbol for a set of broader social and political changes that have very real material effects.
This is not unique to RTW laws. Other laws and events have played symbolic roles that powerfully shaped unionization dynamics in the United States. We can think of the National Industrial Recovery Act in the early 1930s. Section 7(a) of the act provided for the first time a mechanism for workers to join unions. But it was unenforceable, and employers ignored it.
Still, the law symbolized a shift in state attitudes toward unions and gave millions of workers a confidence boost to organize and fight, setting off a massive organizing wave. The law in no way caused the organizing, as it was a dead letter. But it had a powerful symbolic role in moving workers to action.
On the negative side, we can think of President Ronald Reagan’s firing of the PATCO strikers in 1981. It in no way caused the subsequent collapse in union membership, since it only directly affected a small group of 11,345 workers. But it played a powerful symbolic role in crystallizing an ongoing process of labor decline and heralding a new era of aggressive anti-unionism.
We can think of RTW in the same way. It arises at times when reactionary forces are ascendant. Early on, in the 1940s, it symbolized a right-wing business backlash to the labor insurgency of the period — particularly in the Jim Crow South. It is no accident that RTW proponents first emerged in the South, where the Congress of Industrial Organizations (CIO) was building a model of solidaristic, interracial industrial unionism that threatened the white power structure. The early architect of RTW was Vance Muse, a staunch white supremacist and head of the Christian American Association, who warned that, without RTW, “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.”
The RTW map stayed fairly stable after Kansas became the eighteenth RTW state with its constitutional amendment in 1958. Wyoming (1963), Louisiana (1976, after repealing a 1954 law in 1956), Idaho (1986), and Oklahoma (2001) joined in the ensuing decades.
Then there was a second raft of RTW legislation in the 2010s, spearheaded by Michigan and Indiana in 2012. Wisconsin (2015), West Virginia (2016), Kentucky (2017), and Missouri (2017, but overturned by referendum in 2018) all followed in rapid succession. This second RTW wave differed from the first in that it involved states from the US manufacturing and mining heartland, all with long histories of unionism and labor struggle. Whereas the first wave tamed a union upsurge that was threatening to spread, the second ratified long-standing processes of union decline in these states.
The justification for the second RTW wave was also different. The overtly racist appeals of the 1940s were gone, though the history was impossible to erase. Appeals to worker freedom and choice remained prominent. But what stood out was the economic rationale. Politicians promoting RTW touted its economic benefits, arguing either that it would entice businesses to relocate to their state, or that failure to enact RTW would lead businesses to leave for nearby RTW states.
This is not just rhetoric. Consulting firms that help corporations decide where to locate their operations often develop state “economic competitiveness” or “business climate” metrics, and one of the factors they include is whether or not the state is RTW.
Here the actual provisions of the law are less important than what the law represents. RTW serves as a shorthand representing a whole package of pro-employer, anti-worker qualities: low wages and benefits, weak unions, weak regulations, favorable tax laws, pliable politicians, and more. RTW may not directly cause all of these things, but employers know that RTW goes hand in hand with them.
Essentially, RTW laws send a message to employers that a state is “open for business.” And one key part of that message is that it’s open season on unions. That can shape employer expectations about what they can and cannot get away with when it comes to taking on unions, much as Reagan’s firing of the PATCO strikers did.
Likewise, it can shape workers’ expectations of what they can and cannot do when it comes to fighting for their rights. Popular conceptions of RTW laws sometimes misconstrue them to mean that they make unions illegal or prevent workers from striking. These claims are false, but as any organizer knows, they can throw up barriers to organizing by constraining workers’ sense of what is possible.
Legal specifics aside, the idea of a state being RTW means something much more than being a state where workers in unionized workplaces do not have to contribute to the costs associated with negotiating and enforcing their contracts. Workers and employers alike know that when they say, “X is a right-to-work state,” what they’re saying is “X is a state where unions are weak and employers have the upper hand.”
But just as RTW’s passage has emboldened employers and constrained workers, its repeal in Michigan could play the opposite role, sending a message that it’s no longer open season on unions. While labor in Michigan and elsewhere remains in tough shape for reasons that go far beyond RTW, recent developments like new organizing at Starbucks, Chipotle, and elsewhere, along with moves toward greater militancy in established unions like the Teamsters and the United Auto Workers, could take advantage of the opening that the RTW repeal has created to rebuild the labor movement.
Barry Eidlin is an associate professor of Sociology at McGill University and a former head steward in UAW Local 2865 at UC Berkeley.
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