Labor law and the fate of the U.S. labor movement

This week, Wisconsin became the twenty-fifth state to adopt a so-called “right-to-work” law. Elon Law Professor Eric Fink details the legal issues and implications of such laws in this week’s Elon Law Now. 

On Monday, March 9, Wisconsin Governor Scott Walker signed into law a measure that prohibits requiring a worker to pay union dues. Professor Eric Fink’s commentary about this law and others like it follows:

“The Wisconsin law and others before it have generated substantial controversy (extending even to the name itself, which union advocates contend is misleading).

“On their face, these laws appear fairly narrow in scope. In states that have not adopted such measures, federal law allows unions and employers to negotiate agreements under which employees must either become a dues-paying union member or pay an alternative fee. Right-to-work laws prohibit such agreements, but do not otherwise alter the rights of employees and responsibilities of unions under federal law.

“Proponents assert that these laws simply protect employees who do not wish to join a union. Agency fee agreements, they argue, unfairly compel those employees to make financial contributions to a union they do not support. Without the ability to collect fees from unwilling employees, unions will be forced to demonstrate their value if they hope to survive.

“Opponents, in contrast, view these laws as unfair and injurious to workers. Under federal law, a union is obligated to represent all employees within a designated ‘bargaining unit’ (which may be all employees of a given employer, or a subset of employees having similar jobs or common interests), regardless of whether they join or support the union. The union’s duties include negotiating with the employer on behalf of the entire bargaining unit over the terms and conditions of work, and enforcing the agreed-upon terms and conditions through a grievance and arbitration process. Unions may incur substantial expenses in carrying out these duties.

“From this perspective, right-to-work laws unfairly allow ‘free riders’ to enjoy the gains achieved through the union’s efforts, while refusing the contribute toward the cost of those efforts. Labor advocates thus view these laws as a calculated effort to undermine workers’ ability to organize and act together for better pay, improved conditions and protection against unfair treatment on the job.

“Less than a week after it was signed, the Wisconsin law faces a legal challenge brought by the state AFL-CIO and two local unions. Meanwhile, efforts continue to pass similar measures in other states. With much at stake for union supporters and adversaries alike, the debate over right-to-work is far from over.”

Eric Fink teaches in the areas of civil procedure, professional responsibility, labor & employment law, food & agriculture law, and consumer protection. More information about Professor Fink is available here.

Prior Elon Law Now commentary is available here.