President Trump Supports National Right To Work Bill

Saul Ewing Arnstein & Lehr LLP

A stalwart of collective bargaining, the union security clause, is under assault by the “National Right to Work Act” (H.R. 785) that Representatives King (R – Iowa) and Wilson (R – South Carolina) introduced in the House on February 1, 2017. Despite the act’s name, this proposed legislation, and its many state analogs, has nothing to do with protecting an employee’s job or ensuring anyone the right to get work. To the contrary, the Act addresses a union’s ability to require all employees in a bargaining unit, as a condition of employment, to pay union dues, rather than just those employees who authorize such deductions. This is known as a union security or union shop clause.  

A Brief History

By default, the National Labor Relations Act allows union security clauses. As a result, all members of a particular bargaining unit, as a condition of their employment, must pay union dues, unless those employees are in a “right-to-work” state. “Right-to-work” states arose by virtue of another federal law, the Taft-Hartley Act, which amended the National Labor Relations Act. The Taft-Hartley Act allowed states to pass laws that prohibited mandatory union dues. These laws became known as “right-to-work” laws and those states, “right-to-work” states. While the “right-to-work” laws vary from state to state, they generally allow an employee to be covered by a collective bargaining agreement. However, that employee can opt out of paying union dues. 

To date, 28 states have passed “right-to-work” laws: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming. 

Source: National Right to Work Legal Defense Foundation

Proposed Legislation

The bill takes the issue of union security away from the states. By amending the federal National Labor Relations Act, the exception created for state action is moot. Unions oppose these types of laws because they reduce the number of dues-paying members in an already dwindling population. Union membership was at 10.7% in 2016, down from 20.1% in 1983. See Union Members Summary, BUREAU OF LABOR STATISTICS – Economic News Release, Jan. 26, 2017. Additionally, “right-to-work” laws allow for “freeloaders” to receive the benefits of the union’s labors without contributing to those efforts. Employers generally favor “right-to-work” laws because of the perception that they weaken unions. It’s easier to negotiate with weakened unions, and ultimately, this allows for more employer flexibility.  

Does the bill have a chance?

Right-to-work laws have been part of the labor conversation for decades. However, this legislation has the best chance of the more recent efforts because Republicans control both the House and Senate. Republicans would need eight Democrats to avoid a filibuster in the Senate. President Trump signaled his willingness to sign such legislation both on the campaign trail and as recently as Friday, where White House Press Secretary Sean Spicer reiterated, “The president believes in right to work. He wants to give workers and companies the flexibility to do what’s in the best interest for job creators.” Other efforts to pass national right-to-work laws have been thwarted in more worker-friendly political climates. If the bill passes, it is not clear how quickly the impact would be felt across the country because of the patchwork of state laws and the myriad existing collective bargaining agreements. Regardless, this bill has the potential to change the face of collective bargaining in the United States affecting both unionized and non-union workers and the industries that they support.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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