Overview of Right to Work Ordinances
Right to Work laws are statutes that prohibit union security agreements, which are provisions in collective bargaining agreements requiring employees to become union members or pay dues as a condition of employment. Right to work laws address a concern among lawmakers in some states that workers should not be required to contribute to a labor organization as a condition of employment when the workers do not wish to do so. These laws are designed to promote individual freedom of choice with regard to an employee’s membership in a labor union.
The modern right to work movement can be traced back to the 1940s , largely in response to union efforts to rid the workplace of non-union employees through closed shops, which require all employees to be union members as a condition of employment. In the Taft-Hartley Act of 1947, Congress allowed states to pass laws establishing right to work. Thirty-two states (including West Virginia), as well as the federal government, have adopted right to work laws.
Origin and Historical Context of Right to Work Laws in West Virginia
West Virginia’s right to work law traces its roots back to 1909 when the Legislature first made it illegal for an employer to discriminate in hiring or wages on the basis of union membership. The law was amended again in 1931 to prohibit discrimination based on any association with any "legitimate" labor organization, including both unions and employer organizations. It was amended again in 1955 to prohibit discrimination against employees based on their failure to join or continue membership in a union or in any other "legitimate" labor organization.
From 1931 to 1960, union membership throughout the country increased dramatically from approximately 16% of the workforce to almost 30%. Political leaders and business owners in many states proposed repealing mandatory unionism laws because they believed that mandatory unionism laws created division among workers, stymied competition between businesses, and permeated into all levels of a state’s economy. By contrast, opponents of repealing mandatory unionism laws felt that repealing such laws eroded unions’ bargaining power, would weaken unions’ political influence, and would result in disproportionate, unfair treatment of non-union employees.
In the early 1960’s, the Legislature formally studied the right to work law and its effects. Proponents of the law argued that repealing the law would violate the constitutional right to free speech and association, would weaken the state’s economy, and would deter new business ventures. Conversely, opponents argued that repealing the law would improve employee morale and increase membership in labor unions, benefiting both labor unions and the state.
In March 1963 and in November 1963, three bills were introduced to repeal the law, but neither bill passed. During the Spring of 1965, a new bill was formally proposed to repeal the law, at which time it was estimated that 29% of the state’s workforce was unionized. The bill was debated and ultimately rejected during the 1965 Legislature over concerns that repealing the law would adversely affect existing labor contracts and that repealing the law would create additional conflicts and division within the state’s economy. During the 1971 Legislature, a new proposal to repeal the law was introduced, but it never made it out of committee. In 1989, legislators introduced another bill to repeal the law, but the bill did not even receive floor consideration.
Over the next two decades, West Virginia’s manufacturing industry lost more than 20% of its jobs, and in May 2001, one member of the state’s then Democratic-controlled Legislature introduced yet another bill to repeal the law. The bill was introduced in the House of Delegates and in the Senate. Democrats in the House rejected the bill and sent the bill to the committee for study. Democrats in the Senate voted 11-2 and sent the Senate bill to the Committee on Government Organization, at which point it died.
During the 2005 Legislature, Governor Manchin, a Democrat, supported adopting a version of the law restricting public employees from engaging in political activity, however that bill eventually was withdrawn. During the 2008 Legislature, both the House and Senate introduced bills to repeal the law, but the legislation failed to make it out of committee.
As the effects of the Great Recession continued to impact the state, lawmakers across the aisle began rethinking their positions predicated on the arguments promulgated in the 1960’s mostly related to anti-union concerns. In April 2009, a Republican-led House passed a bill to repeal the law by a vote of 51-46 and the Senate unanimously passed the legislation. The Governor vetoed the bill, reasoning that the bill disregarded the voters’ decision to enact the law and that the bill tips the scales in favor of large corporations and away from working families. After the legislative session concluded, 45 members of the House and 15 members of the Senate signed a letter to the Governor requesting that he call a special session to address repealing the law, but the Governor declined the request.
At present, Ohio and Pennsylvania are considering adopting right to work laws.
Legal Stipulations of West Virginia’s Right to Work Ordinances
One of the key features of West Virginia’s right to work law is the prohibition of agency shop agreements. An agency shop agreement refers to an agreement between an employer and a labor organization in which all employees in a bargaining unit must pay dues to the labor organization or contribute to a non-union fund that achieves the same purpose as dues. However, under West Virginia’s right to work law, any such agreement is rendered void. Specifically, the law "prohibit[s] agreements requiring membership in a union or payment of union dues or fees and require[ ] employers and unions to provide notice of employee rights to choose not to join a union" (National Right to Work Legal Defense Foundation). Notably, though, the law does not guarantee that all employees have the right to work without paying dues to a union. Rather, the law only applies to those employees for whom the union is the collectively bargaining representative.
Strictly speaking, this means that employees who opt out of paying dues will lose that right if they no longer have representation due to decertification, contract expiration, or withdrawal of recognition. Without such representation, employees may be required to pay dues to the labor organization as a condition of employment in order to remain covered by the terms of the collective bargaining agreement. However, even in the absence of a union security clause, employers are still expressly prohibited from inducing or attempting to induce an employee to present renunciation forms and from making any agreement requiring payment of dues or fees to third parties.
Implications for Unions and Employees
If an employee is no longer forced to pay union dues, enforcement of union security clauses and the resulting impacts on the employee and the collective bargaining agreement can be significant. For example, an employee’s refusal to pay union dues can quickly lead to consequences for the employee including job loss and filing of unfair labor practice charges against the union. "In addition, enforcement of union security agreements may provide money to the union that it would not otherwise receive, which would in turn be available to fund grievance procedures that could benefit the nonmember" (Wagner, 2015).
When the union no longer receives funds to carry out its collective bargaining obligations to a contract, the risk to the union is just as serious. Since the contract is between the employer and the union, the latter now has a considerable incentive to engage in actions that promote the employees’ need to remain in a union. Some unions require an employee to resign from the union in order to avoid paying dues. Other union security agreements often contain a provision permitting refusal to pay initiation fees if proof of religious objection is presented. Thus, the law’s "prohibition on such agreements and provisions can impact the conduct of unions and the manner in which they persuade employees to refrain from exercising their right to opt-out of union membership and dues obligations" (Labor & Employment Law Blog).
Implications for Employers and Workers
For employers, the right to work law in West Virginia has provided a more predictable operational environment. It has removed the legal requirement to enter into collective bargaining agreements that include union security clauses that force employees to pay dues regardless of their choice to be a union member. Employers can now negotiate on a level playing field with unions, and remove the pressure on employees to join the union to keep their jobs. Conversely, for employers who prefer to have a union-free workforce, this law makes it easier to maintain a non-union shop if employees choose not to join a labor union.
However, it must be noted that not all of the significant changes in social and workplace dynamics in West Virginia in recent years can be solely attributed to the right-to-work law. Some proponents of the right to work law argue that it has made West Virginia an attractive location for employers seeking a pro-business environment, particularly in the manufacturing and energy industries. For example, the right to work law may have been a decisive factor for Nucor in choosing to locate a new $1.7 billion micro mill in the northern panhandle of West Virginia. Similarly, energy companies seeking to establish marcellus and utica shale natural gas operations in West Virginia may be attracted to a right to work state because of the specific workforce preferences (e.g., non-union workforce) of shale gas companies. However, other factors regarding the location of manufacturing plants and shale gas operations (such as proximity to transportation and labor force and the physical characteristics of the land, including economy and geology, among other considerations) may outweigh the impact of a right to work law.
For employees, the right to work law has changed the dynamics by giving them the freedom to make their individual choice about union membership. They no longer have to pay union dues just to simply keep their job. However, because employees are not required to pay dues or join a union, the flow of money into the union may be reduced. The result may be less resources for the union to spend on organizing and representing employees. Unions argue that reduced dues and membership may reduce their ability to advocate for workers’ rights in the workplace and the state legislature and may also lead to fewer benefits, such as those in health insurance, pension benefits, and training programs, for union members.
Court Decisions and Legal Proceedings
Challenges to West Virginia’s right to work law have been brought in the courts. Most recently, the U.S. Court of Appeals for the Fourth Circuit ("the Fourth Circuit") rejected a challenge to the law based on a claim that it violates the National Labor Relations Act.
The Fourth Circuit held that state right to work laws are consistent with the National Labor Relations Act and do not create an impermissible conflict with the federal law. The court concluded that there is interplay between state right to work laws and the National Labor Relations Act, but the state laws merely complement the protections found in the federal law and do not conflict with them. Second, the Fourth Circuit rejected the argument that the law violates the "mandatory dues provision" of the National Labor Relations Act because unions can no longer require union membership as a condition of employment in West Virginia .
Second Amendment Foundation, Inc. and others originally brought the challenge to West Virginia’s right to work law. The case was filed in the U.S. District Court for the Southern District of West Virginia in June 2016. The trial court granted the defendants’ motion to dismiss in September 2016 and Plaintiffs appealed to the Fourth Circuit. The Fourth Circuit held oral arguments in the appeal in October 2017 and issued its decision on April 2, 2018.
The recent decision by the Fourth Circuit raises the possibility that similar challenges to right to work laws will continue to be unsuccessful in the Fourth Circuit. Unless challenged at the U.S. Supreme Court or federal statute, right to work laws should be upheld by the majority of federal courts. Several states are expected to pass right to work laws in the future, so challenges to any new right to work laws can be expected.
Effects and Outcomes of West Virginia’s Right to Work Laws
One of the key economic motivations for a state to adopt a right to work law for its private sector workforce is the competitive advantage that such legislation can create in the increasingly competitive environment for new business investment opportunities. Although the West Virginia legislature has made no secret that its primary motivation in enacting a right to work law has been to attract new business investment, there have been relatively few opportunities for empirical analysis of whether the law has had that desired effect. However, one recent analysis by GOPUSA West Virginia published the results of an empirical analysis of right to work laws in 33 states with populations greater than 1 million and found that the states with right to work laws in place saw higher manufacturing growth, housing permits, average wages, poverty rates and personal income tax revenues than the states without such laws over the past decade.
The local analysis is also supported by an empirical analysis of right to work laws by the National Institute for Labor Relations Research. That analysis found that states with right to work laws between 2012 and 2017 saw average manufacturing employment growth of 10 percent, while states without right to work laws only saw manufacturing job growth of four percent. In addition, the states with right to work laws saw average GDP growth of 17 percent during that period, while states without right to work laws saw GDP growth of only seven percent. The National Institute for Labor Relations Research study also concluded that states with right to work laws have 13 percent lower unemployment rates than those without them, and that right to work states saw average population growth of more than eight percent from 2012 to 2016.
Controversies and Public Sentiment
The West Virginia Right to Work Law has spurred substantial debate among legislators, political commentators, labor union representatives, and business organizations. As with many contentious issues, those in favor of the law argue that it will increase economic development opportunities within the state, while opponents decry the law’s adverse effect on employees’ rights and wages.
States that adopt right to work laws may foster an environment that attracts businesses, particularly businesses with a unionized workforce. West Virginia business associations assert that reducing the costs of doing business in the state will incentivize companies to relocate or establish plants within the state’s borders. A recent survey conducted by the West Virginia Chamber of Commerce and the West Virginia Development Office asked 164 companies that recently expanded in the state to identify the most important factors in their decisions to expand, including location. Over 35 percent stated that the ability to operate in a right to work state was the most important aspect in their decision to locate in West Virginia, the highest percentage of any factor listed on the survey. While not definitive evidence of the actual correlation of the right to work law with new business in the state or the loss of business in the state, these figures are intended to support the position that right to work laws encourage business growth.
Conversely, labor unions contend that right to work laws hurt employees by lowering their wages and removing their right to collective bargaining. According to the AFL-CIO, an organization that advocates for working people, right to work laws in America have reduced wages in the private sector by almost $2,100 per year. In an attempt to support this proposition, a recent poll commissioned by the United Steelworkers states that 93 percent of West Virginia workers believe that everybody should have the choice to be part of a union and 66 percent believe a person should not have to give up their choice to join a union so other people can avoid paying dues and fees to a union.
As is often the case with issues of national importance, the legislative purpose and potential impact of right to work laws has been somewhat mired in partisan politics. Many states that have adopted right to work laws have legislatures that are completely controlled by Republicans. In fact, the 12 states with right to work laws since before 1980 have all been politically dominated by Republicans.
In West Virginia, the state House and state Senate have been controlled by the Democratic Party for the past 80 years. This session, however, the Republican Party gained control of the House for the first time since 1931. The state senate remains controlled by the Democratic Party. The 2015 session also saw what was most likely the end of the 80-year Democratic control of the West Virginia legislature, transitioning the state toward a more balanced political landscape.
Outlook and Future Trends
The future of West Virginia’s right to work law is difficult to predict with any degree of confidence. As noted previously in this blog, changes in the political makeup of the legislature can accelerate or decelerate efforts to revisit the law. Certain studies by organizations claiming a causal link between right to work laws and economic growth have been widely discredited, yet they continue to be relied upon in some business, academic and media circles. There are signs that the law may be gaining traction in states that may not have seriously considered it previously. The net result is a patchwork law that will vary from state to state in terms of its applicability and significance.
For the next legislative session scheduled to begin in January 2015, a Republican-controlled Senate may pursue the passage of legislation to repeal or amend the right to work law. Assuming the Republican majority does not have supermajority status in the House of Delegates, concerted efforts may be required to secure passage of anti-union legislation. Those who strongly oppose right to work laws and are not having any success in the legislature may turn to public referendum campaigns. A recent poll reflected that two-thirds of respondents statewide were opposed to a right to work law , a view more indicative of support for labor unions. However, such a referendum could be influenced by voter apathy and may not fairly reflect majority opinion. The last statewide referendum on this issue took place in 1996, in which 55.1 per cent of voters were in favor of a statewide right to work law. Winning a statewide referendum is not as easy as it may sound. In 1974, West Virginians rejected a similar effort with 59.4 per cent voting against and 40.6 per cent voting for the proposal. Similarly, in 1991, the people voted 68.6 per cent against and 31.4 per cent for an effort to amend the state constitution by recognizing the right to work. One reason the results from the 1996 election may not reflect the popular vote was the synchronizing of the referendum and the general election. This solved a problem faced by unions in organizing campaigns where an anti-union ballot initiative was held immediately before an election. Again, strong and continuous PR campaigns would be needed to build and maintain support for a statewide referendum.