How a ‘Right to Your Job’ Law Could Help Unions Fight Back Against ‘Right to Work’

Shaun Richman November 16, 2015

Members of the International Ladies Garment Workers Union on strike sometime in the early 20th century. (Kheel Center, Cornell University)

The sword of Damo­cles hangs over the head of the Amer­i­can labor move­ment. This spring the U.S. Supreme Court will rule on Friedrichs vs. CTA, a case that could end auto­mat­ic union mem­ber­ship in all gov­ern­ment jobs. If this right to work” effort goes the way the right wing hopes, it would be fol­lowed by an aggres­sive and well-fund­ed direct mail and robo-call cam­paign to encour­age pub­lic sec­tor employ­ees to give your­self a raise” by drop­ping their union mem­ber­ships and ceas­ing to pay dues or fees.

Mis­lead­ing­ly titled right to work” laws pro­hib­it unions in the pri­vate sec­tor from nego­ti­at­ing fees for the ser­vices they are com­pelled to pro­vide to all work­ers they rep­re­sent. They are designed to reduce unions’ income and pow­er. First intro­duced in 1947, these laws used to be lim­it­ed to the for­mer slave states of the Con­fed­er­a­cy. But in recent years, a coor­di­nat­ed right-wing dri­ve has expand­ed these laws to a major­i­ty of states, includ­ing union strong­holds like Michi­gan and Indi­ana. Thanks in part to such laws, unions today rep­re­sent only 7 per­cent of pri­vate sec­tor work­ers. But fac­tor­ing in the pub­lic sec­tor rais­es total union den­si­ty to 12 per­cent. Unions with sub­stan­tial pub­lic sec­tor mem­ber­ship — AFSCME, SEIU, the teach­ers unions — are the last remain­ing large, pow­er­ful unions in the U.S. Friedrichs is noth­ing less than an assas­si­na­tion attempt on the union movement.

Open­ing the doors to the union

Labor lacks a bul­let­proof vest, but unions are devel­op­ing con­tin­gency plans. We can prob­a­bly expect to see some unions begin to offer at-large mem­ber­ships to sup­port­ers regard­less of pro­fes­sion, employ­ment sta­tus or bar­gain­ing rights. And why not? Accord­ing to a recent Gal­lop poll, 58% of Amer­i­cans sup­port unions and want to see them strength­ened. Research shows that one in three Amer­i­can work­ers would vote for a union at their work­place if an elec­tion were held today.

But a union elec­tion won’t be held today at most work­places. Vicious employ­er resis­tance and retal­i­a­tion, a bro­ken legal process and declin­ing union resources stand in the way of most work­places win­ning the major­i­ty vote that is required in our all-or-noth­ing union rep­re­sen­ta­tion system. 

Of course, the work­ers who want a union want… a union. They want an orga­ni­za­tion that can help raise their wages and improve their ben­e­fits, pro­tect them from arbi­trary and capri­cious fir­ings and gives them voice in how things get done at work. All that a union can pro­vide an at-large mem­ber right now is dis­count AT&T cell phone plans and pet health insur­ance. At-large mem­ber­ships are not like­ly to lead to mil­lions of new union members.

But there might be a cou­ple hun­dred thou­sand peo­ple will­ing to pay 10 bucks a month to belong to a move­ment. Poten­tial­ly faced with the imme­di­ate loss of exact­ly that many cur­rent mem­bers, that’s an attrac­tive propo­si­tion to unions. The key will be to actu­al­ly bring a move­ment into people’s homes, and that means con­nect­ing at-large union mem­ber­ship with advo­ca­cy and leg­isla­tive campaigns.

A right to your job” movement

Open­ing up the labor move­ment and pur­su­ing new rights for all work­ers would help get labor out of the box of think­ing most­ly about union­ized work­places and appear­ing to be a spe­cial inter­est. Unions’ recent embrace of ambi­tious efforts to raise state-lev­el min­i­mum wages to $15 has so far been at the heart of these efforts. Upwards of 24 mil­lion work­ing peo­ple would receive a raise if the pathet­ic fed­er­al floor of $7.25 an hour was raised to just $10, so the Fight for $15 has a huge built in con­stituen­cy beyond just fast food workers.

Unions should add to this a state-by-state effort to change the legal stan­dard of employ­ment rela­tions to just cause.” Just cause” is the prin­ci­ple that an employ­ee can­not be fired unless it’s for a good rea­son — basi­cal­ly, that the pun­ish­ment (los­ing your liveli­hood) should fit the crime (steal­ing, lying, just not being good enough at the job). This often means that an employ­ee has been giv­en some advance notice of her sup­posed short­com­ings and an oppor­tu­ni­ty to improve and/​or be pre­sent­ed with the doc­u­men­tary evi­dence to back up the employer’s claims of sub-stan­dard per­for­mance with an oppor­tu­ni­ty to con­test it.

This is very com­mon­ly nego­ti­at­ed into union con­tracts. Non-union work­ers gen­er­al­ly labor under an at-will” stan­dard of employ­ment, a holdover from Eng­lish com­mon law that basi­cal­ly tells a work­er, Con­grat­u­la­tions, you are not a slave. That means you are free to quit your job — and your boss is free to fire you.” It’s a kind of lib­er­ty, I guess, but not one that’s par­tic­u­lar­ly appealing.

The only job pro­tec­tion that at-will employ­ees cur­rent­ly have is to try to shoe­horn their case into one of a hand­ful of legal­ly pro­tect­ed cat­e­gories” of work­ers: be a woman, be a racial minor­i­ty, be over the age of 42, be dis­abled, be a whistle­blow­er. And even if a case does fit in one of those cat­e­gories, a work­er can only receive some finan­cial rec­om­pense — gen­er­al­ly not retain­ing her job — if she can prove that she was fired because of their pro­tect­ed sta­tus. It’s a lousy frame­work, but the best that an at-will employ­ee has.

Richard Kahlen­berg and Moshe Mar­vit advo­cate for union activists to be added as a pro­tect­ed class through an amend­ment to civ­il rights laws. They do us a favor by get­ting unions to think out­side of the Nation­al Labor Rela­tions Act for labor law reform. But their pro­pos­al is still too lim­it­ed. We should not mere­ly be fight­ing for spe­cial” rights for union activists. As union den­si­ty has declined, the remain­ing union­ized work­places come to be seen as islands of rel­a­tive priv­i­lege. Boss­es and the media exploit this and try to whip up a degree of work­ing-class sup­port for strip­ping our last few rights away, seen most clear­ly seen in the pub­lic debate around teacher tenure pro­tec­tions (which is sim­ply the just cause stan­dard by a dif­fer­ent name).

Imag­ine how quick­ly the debate would change if unions fought for and won mean­ing­ful job pro­tec­tions for all work­ers in a state! Call it a right to your job” law. Such a law would lay bare just how cyn­i­cal­ly manip­u­la­tive and hol­low the so-called Right to Work” laws are.

To be mean­ing­ful, such just cause laws would have to include some kind of a court in which to hear cas­es. This could be as sim­ple as man­dat­ing pri­vate medi­a­tion and arbi­tra­tion or as com­plex as cre­at­ing new state reg­u­la­to­ry agen­cies to hear such cas­es. If work­ers did have a court in which they could defend their employ­ment, unions would have some­thing real to offer at-large mem­bers as a part of join­ing the union. And with that offer comes the poten­tial for sub­stan­tial mem­ber­ship growth.

A rad­i­cal depar­ture for labor

Attempt­ing to leg­is­late job pro­tec­tions, pay and ben­e­fit increas­es for large groups of work­ers who prob­a­bly won’t become dues-pay­ing union mem­bers would be a rad­i­cal depar­ture for the Amer­i­can labor move­ment. Unions have, for his­tor­i­cal rea­sons, pre­ferred to make their gains in con­tract bar­gain­ing. The ear­ly labor move­ment, in the 19th cen­tu­ry, did work to pass laws on wages, hours and fac­to­ry con­di­tions. They saw most of those laws over­turned, as well as many of their strikes and boy­cotts enjoined, by con­ser­v­a­tive courts that viewed unions’ efforts as vio­la­tions of pri­vate con­tracts and dis­tur­bances of inter­state commerce.

As a result, unions across the polit­i­cal spec­trum entered the 20th cen­tu­ry with a pro­found dis­trust of gov­ern­ment and polit­i­cal par­ties. While labor’s great upsurge of the late 1930’s did bring unions into the polit­i­cal are­na, it coin­cid­ed with the effec­tive end of the New Deal and the inabil­i­ty to expand the wel­fare sys­tem with ben­e­fits like nation­al health insur­ance. Unions turned to their own col­lec­tive bar­gain­ing for employ­er-spon­sored ben­e­fits instead of the gov­ern­ment. Such efforts were ini­tial­ly a kind of stop­gap mea­sure, pur­sued in the mean­time while hop­ing to even­tu­al­ly secure gov­ern­ment-pro­vid­ed ben­e­fits. But when the gov­ern­ment froze wages dur­ing World War II, unions bar­gained for more and more fringe ben­e­fits” to make up for the loss.

The labor move­ment that emerged in the post-war era had won a mas­sive pri­vate wel­fare sys­tem for its mem­bers. Union lead­ers con­sid­ered this a union advan­tage” that would help sell” new orga­niz­ing. The only major ben­e­fit that labor did work to leg­is­late in that era was Medicare and Med­ic­aid (After all, it’s pret­ty hard to bar­gain with employ­ers for peo­ple who don’t work for them). With one in three work­ers in a union dur­ing the post-war peri­od, even non-union employ­ers had to try to match those ben­e­fits to remain com­pet­i­tive. This pri­vate wel­fare sys­tem worked for a gen­er­a­tion, but it was all too vul­ner­a­ble when less than one third of work­ers were orga­nized to defend it.

The labor move­ments of oth­er coun­tries strike more of a bal­ance between nego­ti­at­ing rights and ben­e­fits for their mem­bers and leg­is­lat­ing them for all work­ers. This is par­tic­u­lar­ly so in coun­tries where unions formed labor par­ties or aligned with social­ist par­ties. And when rights are enjoyed by all, they are defend­ed by most. Think of France and the mas­sive protests over aus­ter­i­ty pro­pos­als to slash pen­sions and ben­e­fits in 1995 and 2010. Would you believe that French union den­si­ty stands at a mere 7 percent?

Unions tend to think of leg­isla­tive­ly gained rights and ben­e­fits as eas­i­ly lost if the wrong gov­er­nor gets elect­ed or a bad mid-term flips con­trol of a state­house. We should instead view labor’s leg­isla­tive agen­da as anoth­er way of bar­gain­ing for the com­mon good. It is a way of broad­en­ing our base, open­ing wide the doors of our move­ment, to win and pro­tect a stan­dard of liv­ing that we all deserve.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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