On Monday morning, Wisconsin Gov. Scott Walker (R) signed a right-to-work bill that got fast tracked through the state legislature, making his the 25th state in the country with such a law on the books.
So-called right-to-work laws allow workers to opt out of paying union fees even if their workplace is represented by one. That means the workers can still benefit from the bargaining the union does with company management to increase their wages and benefits but don’t have to give money to the union to support those efforts.
This can create a “free rider” dilemma that can end up weakening unions’ power. And reduced union power can have a significant impact on workers. Studies have found that right-to-work laws end up reducing workers’ wages and and their likelihood of receiving benefits like health insurance or pensions.
But Paul Secunda, a law professor and director of the labor and employment law program at Marquette University, says it isn’t likely labor will suffer a huge blow in a place like Wisconsin where the movement is strong. “There are still vibrant labor movements in right-to-work states,” he pointed out, and it is still strong in Wisconsin. If there’s a sense of solidarity and and members feel satisfied and engaged, they are often happy to pay what it takes to keep their union operational. It’s when unions have high rates of turnover or haven’t been able to deliver their promises that some may opt out of paying dues, which can create a “vicious cycle” in which their coworkers decide to opt out as well.
Right-to-work laws can also have the benefit of increasing face-to-face contact between union staffers and members, Ross Eisenbrey, vice president of the Economic Policy Institute, pointed out. “There’s nothing they can do [about free riders] than try to persuade them,” he noted. But this extra effort also means that staff resources are sapped by trying to get everyone to pay, which means they end up “chasing after people to get their dues instead of researching, meeting with the employer, or organizing other units, doing all the things that the union would need to do to build strength.”
To fight back, unions in some states have brought legal challenges. A spokesperson for the AFL-CIO said of Wisconsin’s new law, “We’re still looking into the possibilities for legally combatting the law but have nothing to report at this time,” while the SEIU didn’t immediately respond to a request for comment. Indiana, which passed a right-to-work bill in 2012, dealt with two different lawsuits, and a state Superior Court judge ruled that it violated the state constitution ban on delivering services “without just compensation.” That ruling was later overturned by the state’s Supreme Court, however, and the law has stayed.
A legal challenge to Wisconsin’s new law would likely fare no better. Right-to-work laws are perfectly legal under the federal National Labor Relations Act, so a lawsuit would have to prove that Wisconsin’s law violates the state constitution or state laws. “There can always be litigation,” Secunda said, but thinks that the chances of success are “highly unlikely.” None of the country’s current right-to-work laws has ever been revoked because of a legal challenge, “going back to when right-to-work first became possible in the 1950s,” he added. The Wisconsin Supreme Court is also “very partisan, very political,” he said, with a four-to-three skew toward conservatives over progressives.
There would be a better chance of success with a political repeal. Eisenbrey pointed out that at least six states passed right-to-work laws and then repealed them later on, “so it wouldn’t be the first time.” Indiana’s first such bill, passed in 1957, lasted only eight years until Democrats regained control of the state legislature and overturned it.
Even that may now be a long shot, however. Eisenbrey pointed out that Michigan Gov. Rick Snyder (R) signed a right-to-work law in 2012 and then got reelected, and Walker himself got reelected even after a high-profile fight over a bill that ended collective bargaining for public sector unions. Plus, he said, “there’s a lot of money on the other side.” Right-to-work legislation has the backing and is pushed by the Koch brothers and the American Legislative Exchange Council, both with deep pockets.
On top of that, it may be hard to regain Democratic control over the state legislature. “After the 2010 Census, the Republicans gerrymandered in particular our general assembly so badly, it would be almost impossible for Democrats to take back control of the House,” Secunda said. “This is not going anywhere quickly.”
Wisconsin’s labor movement are already anticipating new fights. Next up will be a push this week to repeal the state’s prevailing wage law. The law, which has existed for over 80 years, relates to the bidding process for state projects. Because unionized employers were always underbid by those that pay workers less, the law requires any company that gets a state contract to pay the average compensation for workers in the community. The repeal “is just another way in the building industry to get cheap labor,” Secunda noted, and will also be another blow to labor. “It’s going to go through and there’s nothing to stop it.”
Republicans have also set their sights on “project labor agreements,” which bar non-union contractors from working on publicly funded projects or requires them to unionize to complete the work. There is no statewide rule, but some city governments have them. Republicans plan to seek a blanket ban similar to the current ban on local governments passing their own minimum wage and sick leave laws. Meanwhile, Walker’s budget includes significant changes to the state’s workers compensation system that could weaken it. “This is not the last battle,” Secunda said. “They’re going to keep fighting.”
Some optimism for national unions may be found in the fact that while right-to-work passed in Wisconsin, similar efforts were recently dropped in New Hampshire and West Virginia and an effort to fast track a bill in New Mexico failed. A law passed through an executive order by Illinois Gov. Bruce Rauner (R) is also not likely to hold up under legal scrutiny.
Wisconsin’s labor unions may have to take drastic steps, however. “The ultimate power that labor always has is to withhold its labor,” Secunda said. They weren’t able to organize general strikes over the public sector bargaining bill or this right-to-work law, but that may one of their most powerful options for change.
UPDATE: On Tuesday, the Wisconsin AFL-CIO, Machinists Local 1061, and United Steelworkers District 2 filed a lawsuit against the new right-to-work law, claiming that it is “an unconstitutional taking of [unions’] property by the State of Wisconsin,” which would violate the state constitution.
By Bryce Covert