Earlier this week, Missouri’s Governor Eric Greitens signed legislation making Missouri the 28th state to pass Right to Work legislation. New Hampshire is considering legislation that, if passed, will be signed by its Republican governor, Chris Sununu, making it the 29th state. Right to Work is, of course, legislation permitted under the Labor Management Relations Act that prohibits unions from requiring bargaining unit employees to pay union dues or dues equivalents. Under current law, employees in states without right to work laws may be required either to join and remain members of the union representing them (paying the normal dues), or to pay the union what are called “Fair Share Fees”. These Fair Share Fees are calculated to be the union’s cost of representing employees in the bargaining unit, without inclusion of extraneous amounts included in the dues amount, such as political donations to candidates. Unions obviously prefer to have all employees contributing to their operations and political endeavors, and the number of employees opting out in non-RTW states is generally far less than the percentage opting out in RTW areas. Unions must represent all bargaining unit members fairly, even without receiving any payments from those in RTW states who chose not to pay. Employers generally support RTW efforts, since unions receive less funding and are weaker than otherwise. Employees prefer RTW since they have the choice of joining the union if they want, or staying out of it, even if there is a union present in the workplace. They can be “free-riders”—benefitting from any results of union bargaining but without paying anything to the union.

States have been the focus of RTW legislation in recent years, with Kentucky, Indiana, Michigan and Wisconsin all passing laws in the heartland. Wisconsin’s law has encountered still-pending challenges from unions on the basis that it forces unions into a position of involuntary servitude by having to represent dissenters. It survived a federal district court decision, now appealed to the U.S. Court of Appeals for the Seventh Circuit (which upheld Indiana’s RTW law), and was found unconstitutional under Wisconsin’s Constitution by a local county judge, whose decision is now on appeal at the district level.

An additional front is being opened in the RTW war. U.S. Representatives Joe Wilson (R-SC) and Steve King (R-IA) have introduced the National Right to Work Act, HR 785, which would make Right to Work the uniform law in the U.S. The law faces opposition from the labor movement, and would almost certainly encounter a filibuster in the Senate. Given the number of Democratic senators in states that have adopted RTW laws, it is likely that the House will pass the bill and send it to the Senate. This would force RTW state Democrats up for re-election in 2018 to take a position on the bill. Then, depending upon how the midterm elections turn out, the opportunity for Senate passage might increase, or passage could be foreclosed for at least another two years.

Governor John Kasich has announced his intention to push for a radical retrenchment of Ohio’s Public Employee Bargaining Law, Ohio Revised Code Chapter 4117.  Passed in 1983 during the first year of Governor Richard Celeste’s term, the bill gave unions representing state employees the right to bargain with the state, allowed unions representing state and local governments, including school districts, the right to bargain and gave the right to strike to non-safety unions.  Safety unions gained the right to arbitration (called “conciliation” under the Act) but not the right to strike. 

In the years since its passage, the Act has predictably resulted in a shift of governmental funding towards wages and benefits.  The dispute resolution processes in the Act have removed key fiscal decisions from the control of elected officials and placed them in the hands of private arbitrators, many of whom have primary locations outside of Ohio and certainly outside the boundaries of local governments.  Also unsurprisingly, the incidence of strikes by public sector unions has dropped.

All of these effects were predictable [and were predicted–see Bumpass & Ashmus, Public Sector Bargaining in a Democracy—An Assessment of the Ohio Public Employee Collective Bargaining Law, 33 Cleveland St. L. Rev. 593 (1984-85)], but there was little or no pressure, except from local officials, to do much about them.  The November 2010 elections, however, brought strong Republican majorities to both houses of the General Assembly along with a Republican Governor.  Coupled with a serious fiscal crisis for the state and many of its political subdivisions, there is a significant chance that the Act will be amended along the lines proposed by Gov. Kasich. 

While a detailed analysis of the potential changes is beyond the scope of this entry, the current bill (Sub. S. B. No. 5—Jones) would eliminate mandatory bargaining rights for state employees, remove many subjects (class size, for example) from the permissible scope of bargaining, remove safety supervisors from unions, outlaw strikes and eliminate mandatory arbitration of contract disputes.  Local government and school district employees would retain bargaining rights.  This would indeed be a major retrenchment of union power over Ohio’s public employee terms and conditions of employment.

An interesting element in the discussion is the extent to which the debate about public sector unionization’s adverse impact on state and local government operations is likely to fuel debate over unionization in the private sector, where at least one study (pdf) has shown that right-to-work states out-compete their mandatory union membership peers. There are already questions being asked at news conferences about the willingness of the Governor to support a Right to Work Law for Ohio.   Gov. Kasich has so far expressed his preference to see whether manufacturing sector unions will be a positive force in his attempts to recruit new businesses to Ohio.  The other shoe could well drop, though, if the unions seek to thwart the Governor’s ambitious development agenda.