South Dakota Initiative Fuels Right to Work Debate

Right to work laws have been a center of controversy in recent years, with a number of laws facing constitutional challenges in the courts. You might hear this and be surprised, as “right to work” certainly doesn’t sound like a controversial topic. Pretty much everybody would agree that reducing unemployment is a good thing—if that was what right to work meant.

While right to work sounds purely innocuous, the name is a bit of a misnomer—crafted to intentionally frame a more controversial policy point in as positive a light as possible. The confusingly named right to work actually deals with an employee’s choices when it comes to joining or not joining a union.

The Current Situation

The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops—agreements where they only hire unionized workers.  However, it allowed union shops—agreements where employees are required to join a particular union within a certain period of time after being hired.  The act also has a section which allows states to ban union shops as well.

The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing—allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.

There are currently twenty-six states which have right to work laws: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

Right to work tends to be a conservative agenda point, with liberal interests preferring stronger unions with more money to advocate for higher wages and greater employee rights. Those supporting right to work laws argue that employees should not be forced to pay a union whose positions they do not agree with—often framing the laws as a free speech issue.

Critics respond that you are already allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace. They argue that “right to work” is a thinly veiled attack on the strength of unions by taking money out of their pockets—allowing so-called “free rider” employees to get all the benefit of a union without actually paying anything. After all, many employees would take the representation for free if it’s an option, regardless of their opinions about the union.

South Dakota’s Initiative 23

As mentioned above, South Dakota is among the states that have enacted a right to work law.  However, they have certainly been listening to the arguments of right to work critics, as last week they have proposed a new law—Initiative 23—which allows corporate and non-profit organizations–including unions–to charge for services rendered.  This essentially has the effect of allowing unions to charge employees they represent regardless of whether somebody chooses to join that union.

This a huge move as South Dakota is one of the first states to ever introduce a right to work law, doing so via a state constitutional amendment in 1946. Proponents of the law argue that it allows unions to charge for actual services rendered while still allowing employees to opt out of a union if they disagree with its position. Obviously, its opponents say that it’s simply a loophole to right to work—essentially removing any protections provided by South Dakota’s law.

The critics are right to a degree, the initiative neuters South Dakota’s right to work law in everything but the most technical sense. However, this law highlights a nationwide trend of struggle back and forth over whether these right to work laws should exist in the first place.

A Nationwide Controversy

Just this year, shortly after Wisconsin adopted a right to work law, a Wisconsin Circuit Court Judge ruled Wisconsin’s right to work law unconstitutional. The law itself was incredibly controversial even before this ruling, so unpopular that it led to an unsuccessful attempt to recall Wisconsin’s Governor Scott Walker.  The court’s ruling was based on an argument that right to work provisions are unconstitutional takings.

This argument is currently on appeal to the Wisconsin Supreme Court, and frankly is unlikely to stand. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property.  Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding  the potential profits from services provided by a union, the 7th Circuit—of which Wisconsin is a part—has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.  The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers.

While unlikely to succeed, this isn’t the first challenge of its type or even the only recent one. The constitutionality of Indiana’s right to work law was challenged back in 2012, with the law only found constitutional as recently as 2014. The Indiana case had a bit of a twist to it, in that the Indiana Constitution explicitly guarantees that no person’s services shall be demanded without just compensation.  Unions argued that this guaranteed them pay for the bargaining service they provided. Ultimately the courts disagreed; they ruled that unions were not required to become exclusive bargaining representatives and their choice to accept that role placed responsibilities on them along with the rights it provided.

Recent Debate Over a Federal Right to Work

The struggle over right to work acts hasn’t just pushed in the direction of curtailing these types of laws. Earlier this year, the Supreme Court of the United States dealt with a case with the potential to create what was essentially a federal right to work—applying to all public employees.

The issue was hotly debated, framing the issue as “free riders” versus “compelled passengers.” To highlight just how contentious this issue is, after the death of Justice Anthony Scalia, the Supreme Court was forced to declare a 4-4 deadlock on the issue.  Petitioners have requested a rehearing, but it will have to wait for the next presidency and appointment of a ninth Justice as the conservative side of Congress has made it clear they won’t consider any appointee suggested by the Obama administration.

Right to work is a back and forth battle throughout the country. On one side, the laws provide workers more options, but at the same time they take money away from unions who would use it to negotiate higher wages and better workers’ rights. The direction these laws will take is something only the future can reveal.

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