Labor Organizing in Right-to-Work States Is Numbers Game

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By Chris Opfer and Jasmine Ye Han

The Trump administration is slowly moving to put a pro-business stamp on federal labor policy, but shifts at the state level already seem to be making it tougher for unions to organize in many parts of the country.

A total of 28 states have passed right-to-work laws, which ban unions from charging representation and administrative fees to workers who are part of a collective bargaining unit but choose not to join the union. The spread of those restrictions has squeezed labor resources, forcing some organizers to be pickier about which workforces they try to unionize.

Unions filed fewer than one-third as many election petitions in right-to-work states than in the rest of the country in 2016, according to Bloomberg BNA’s analysis of labor voting data. Although their success rate (52 percent) in those elections was slightly higher in right-to-work states, the reduction in overall petitions means fewer workplaces are likely to be unionized in states with forced fee bans on the books.

“Right-to-work disincentivizes unions from going after smaller groups of workers or those where the workforce is divided,” Ben Speight, a Teamsters organizer in Georgia, told Bloomberg BNA. “You end up working at a great expense with unknown outcomes and an unknown number of workers who will actually decide to pay dues.”

Unions have to get the support of at least 30 percent of a potential bargaining unit to force a representation election. A majority of workers then must vote in favor of organizing for the union to be certified as the workers’ exclusive collective bargaining agent. Employers voluntarily recognize unions in some cases where worker support is overwhelming.

Business groups and mostly Republican lawmakers have been vocal critics of the National Labor Relations Board, the independent agency that primarily enforces federal labor law. The five-member board may soon have its first GOP majority in nearly a decade. It will also likely get the chance to undo a number of moves that opponents say tipped the scales in favor of unions under former President Barack Obama.

The data show that right-to-work laws may already be weighing heavily on labor groups, with fewer organizing campaigns in states that ban union security clauses. That may also be a sign of things to come for public sector unions, which aren’t covered by the same laws but are facing a Supreme Court battle that could mean the end of similar “fair share” fees.

“Passing the law is a signal that the state is relatively unfriendly to unions,” Charlotte Garden, a professor at Seattle University School of Law, told Bloomberg BNA. “But there are a lot of correlated dynamics within the state that would contribute to fewer union elections.”

Chicken or Egg?

Advocates and observers told Bloomberg BNA that right-to-work laws may be a symptom of declining unionization rates nationwide rather than the cause.

“There are some states that are anti-labor and I think those are more likely to be right-to-work,” Ricky Oakland, an organizer for the International Brotherhood of Electrical Workers, told Bloomberg BNA. “But I don’t know if it’s the right-to-work law that makes it that way.”

Labor organizers in the South, for example, told Bloomberg BNA that the United Auto Workers faced overwhelming odds in its recent failed bid to organize workers at a Nissan factory in Mississippi. The state has had a right-to-work law in place since 1954, but advocates say that anti-union statements from state government leadership and outspending from Nissan helped stacked the deck against them. The Nissan workers voted against unionization by a 2-1 margin.

Missouri has been at the center of the right-to-work debate, thanks to a state law banning forced unions fees that is set to take effect at the end of the month. Labor groups are pushing to delay the law and put the question before voters in November 2018 as a state ballot initiative.

Although the right-to-work law has not gone into effect, union elections in Missouri fell by more than half—from 52 in 2007 to 23 in 2016—over the last decade.

Business groups and other right-to-work supporters often describe the fees question as a worker freedom issue. They say workers who choose not to join a union shouldn’t be forced to financially support the group, even if they disagree with the organization’s stance on collective bargaining and politics.

“Right-to-work states, like South Carolina, have seen first-hand that job creation and economic growth comes from expanded freedoms,” Rep. Joe Wilson (R-S.C.) said earlier this year, when he introduced legislation to ban forced dues nationwide.

Passing a right-to-work law isn’t exactly akin to flipping a switch when it comes to union election activity. Election petitions have declined gradually in Michigan (4 percent) and Indiana (15 percent), for instance, since right-to-work laws took effect in 2012. In Indiana, petitions ticked up from 29 in 2013 to 43 in 2014. In Michigan, the number of filings has returned near the 2012 level despite an increase in 2014.

Still, the data show a significant difference in union organizing activity between right-to-work states and those with fee bans in place.

Unions in the last decade filed the most election petitions per capita in Washington, D.C., Alaska, Rhode Island, New York, and New Jersey, none of which have right-to-work laws on the books. The states with the lowest petition rates over the same time—North Carolina, South Carolina, Utah, South Dakota, and Arkansas—all ban unions from charging fees to nonmembers.

The total number of petitions filed nationwide has fallen by about 20 percent over the last decade.

Different Strokes

Even when a union wins an election, organizers in right-to-work states then have to try to get workers to sign up to pay dues.

“Unions have to depend on convincing workers that paying dues is the right thing,” Garden said. “They have to talk workers out of free-riding.”

In the long run, it’s hard for unions to invest in the resources—hiring lawyers, actuaries, and full-time organizers, for instance—they need to negotiate at the bargaining table and enforce the contract without a steady stream of dues-paying members, Garden said.

South Carolina is a right-to-work state, and it’s also a state where employers have fought union drives very hard, Garden said. The state had the lowest union membership density—1.1 percent of private sector workers are union members—in the country in 2015, according to Bloomberg BNA’s analysis of the latest current population survey data.

It’s hard for employees there to find proof of benefits in joining unions, Garden said. That makes unions less likely to take risks organizing drives, Garden said.

Lawyers who help businesses avoid unionization also told Bloomberg BNA that their approach to labor organizing drives depends in part on whether the election is in a right-to-work state.

“In non-right-to-work states, you tend to have bigger locals with more resources and probably more experienced organizers,” Jackson Lewis lawyer Jonathan Spitz told Bloomberg BNA. “They are going to be more aggressive and their message is going to be more well-received.”

Employers also have to keep in mind that workers in union-friendly states may have friends and family members who are active in organized labor, Spitz said. “You have to be a more careful to explain why it doesn’t make sense in that particular workplace.”

Focus Shift

Speight’s Teamsters local represents about 9,000 workers in Atlanta and Savannah, Ga., a group that includes UPS drivers and film production staffers.

Georgia, which passed a right-to-work law in 1947, has seen a 42 percent decline in union election petitions over the last decade alone. But Speight says the local’s membership has nearly doubled during the same time.

He credited what he called a “member-oriented” approach that relies heavily on union members—rather than paid union employees—to recruit and retain dues payers.

“There are things unions can do so that right-to-work is not a death sentence,” Speight said. “It’s important to show that you are listening to people’s issues and that you make sure they are involved and understand the benefits so that they gladly pay dues.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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