By:  Michael J. Rybicki, Esq.

Today Wisconsin became the 25th state to pass right to work legislation applicable to private sector employers. Most private employers are covered by the National Labor Relations Act (“NLRA”), which originally permitted collective bargaining agreements to provide for the termination of any employee who failed to join or at least pay representational fees to the union. While these “union security clauses” remain lawful in now half of the states, the 1947 Taft-Hartley amendments to the NLRA gave states the ability to enact laws giving workers the “right to work” without becoming a union member or paying union dues, which is what the Wisconsin bill does. The bill would also make it a crime punishable by up to nine months in jail to require private sector workers who are not union members to pay dues after the bill becomes effective.

The Wisconsin bill will be effective after the Governor has signed it – most likely March 11, 2015. It does not make union security clauses presently in effect unlawful or otherwise render them null and void because the Act only applies to the “renewal, modification, or extension” of a collective bargaining agreement occurring on or after its effective date. Although some unions may attempt to negotiate contract extensions prior to the law’s effective date they have relatively little time to do so (unlike the case with the Michigan law).

The Wisconsin bill was narrowly approved in the Senate by a 17-15 vote on Wednesday, February 25, 2015. It was referred to the Republican-controlled Assembly where it passed on party lines on Friday, March 6, 2015. Wisconsin Governor Scott Walker has said he will sign the bill on Monday (March 9, 2015).

Once largely confined to southern or western states, right to work laws have now come to the “rust belt,” historically a union stronghold. In 2012, Indiana and Michigan passed right to work laws, and why unions hate them is evident from the Michigan experience. In 2013, the first full year under the state’s right to work law, Michigan saw one of the sharpest dips in year-to-year union membership, declining from 16.3% to 14.5%.

Advocates of right to work legislation argue that it is unfair to force workers who do not want to join a union to pay dues, which are frequently used for political purposes they personally oppose. Advocates further argue that right to work laws promote economic growth and figures from the Department of Labor and the Bureau of Economic Analysis appear to support this contention.

Unions and their supporters counter that such legislation is nothing more than part of a “race to the bottom” that undermines the middle class. They also argue that because so-called “free riders” – workers who do not pay union dues – share the benefits of collectively bargained contracts, they should have to pay their “fair share” to the union.

Right to work legislation unquestionably has a heightened political dimension in today’s polarized environment. The Democratic Party, of course, relies heavily on Big Labor to raise money and turn out the vote at election time. The Wisconsin right to work bill is part of an continuing epic battle between that state’s Republican and Democratic constituencies, which up to now the Republicans have been winning. Its passage also occurs against the backdrop of Republican Governor Walker’s presidential bid. Democratic Representative Cory Mason, of Racine, denounced the bill saying, “It is the workers in this state that are suffering through the politics of our governor’s ambitions.”

It is likely that a legal challenge to the Wisconsin legislation will be mounted by the bill’s opponents. Legal challenges to right to work laws in Indiana and Michigan, however, failed.

The majority of right to work provisions (either by law or constitutional provision) were passed in the 1940’s or early 1950’s. Prior to the recent passage of right to work laws by what is now a trio of rust belt states, the only other right to work provision passed in this century was in 2001, when voters approved a constitutional amendment in Oklahoma. Right to work proponents will continue to press their case in other states and there may come a day when union security clauses are permitted in only a minority of states, a situation once considered preposterous.