Labor activists protest a right-to-work law in Indiana's state capitol in 2011. Photo via Flickr user UFCW International Union
Organized labor has been under assault for decades in this country, and if the Midwest offers any indication, a new breed of anti-union laws could be coming to your town next. In 2012, amid bitter protests at the state capitol in Indianapolis, Republicans voted to admit Indiana into the legion of “right-to-work” states, meaning that many of its unions could no longer require employees under their representation to pay dues. But even as that law has wound its way through a number of legal fights, another, largely unnoticed right-to-work battle has cropped up in the nearby city of Fort Wayne, where local officials have taken things a step further. This summer, the Republican supermajority in the city council pushed through a series of bills—including its very own local right-to-work law—that make it far more difficult for unions to represent government employees.
Conservatives love it when states to pass right-to-work laws, since they represent an existential threat to the power of unions, which rely on dues for both daily operation and institutional growth. Twenty-four states have adopted them. Stirring potent passions across the political spectrum, right-to-work laws act as both agent and symbol of the county’s declining rates of unionization and the fading clout of labor. While it remains uncertain which, if any, of the (relatively few) pro-labor states will join this trend, right-wingers are eyeing a potentially massive new battleground for their pro-business regime: individual cities and counties across the country—even those in strongly Democratic territory.
A report released last week by the conservative Heritage Foundation lays out the basic vision: Localities across the country should “experiment,” Heritage suggests, with local right-to-work territories. The authors, who appear to be most focused on unions that organize private-sector employees, forecast that such laws could provoke a legal challenge ending up in the hands of the US Supreme Court, which they expect to uphold the right of cities and counties to determine the fate of their unions.
Heritage’s analysis may prove to be more than some academic exercise. Localities and politicians across the country are eyeing related legislation. For instance, Bruce Rauner—Illinois’ Republican candidate for governor, who is waging a competitive race against the state’s Democratic incumbent—cites the creation of local right-to-work zones as one of his top policy priorities for the Illinois economy. And earlier this year in Pennsylvania, the statewide association of county commissioners encouraged officials across the state to pass their own county-level laws restricting unions’ authority to collect mandatory dues.
But Fort Wayne offers a vivid example of what the bitterly divisive laws look like on the micro scale. In June, the city council approved a law that effectively eliminates the right of many municipal employee unions to play any role in bargaining, rendering most of the unions powerless. This did not apply to public-safety workers, however, who became the subject of a different law, passed in July, that imposes a more straightforward right-to-work ordinance on police and firefighters.
“Now, we don’t even have a seat at the table,” says Lloyd Osborne, the business representative of the Local 399 Operating Engineers, which represents street maintenance and water utility workers. “We can’t go on [workplace] property to represent or even speak to our members—or who used to be our members. They completely did away with the unions here under a local ordinance.”
Sofia Rosales-Scatena at the local Patrolmen’s Benevolent Association—which is now subject to the city’s right-to-work law—says that while the union can still require members to pay “administrative fees," newer officers may balk at paying full, once-required dues that fund legal services, charity drives and other programs considered mainstays of their work. “The first thing to go would be our charitable activities,” Rosales-Scatena tells me, citing the union’s regular participation in the Special Olympics and food drives for hungry families during the holidays.
Fort Wayne’s new laws—both the statues themselves and the style with which they were legislated—resemble those ramrodded onto employees in Wisconsin by the state’s Koch-friendly governor, Scott Walker, in 2011. By effectively eliminating state employees’ right to bargain and also mandating that due-paying by public employees become voluntary, Walker sparked the country’s most acrimonious labor showdown in years. The uproar brought tens of thousands of protesters to Madison and resulted in a particularly nasty recall election that Walker survived—thanks in large part to an infusion of unregulated outside cash. Epitomized by his epic assault on collective bargaining, Walker’s reign has put Wisconsin on the map as the country’s most politically (and, to a slightly lesser extent, racially) polarized state. (Walker’s campaigning activity has since become the subject of a large criminal investigation, though he is not directly implicated at this point.)
Even though Walker was able to hang on, labor organizers in Fort Wayne believe that overreach by the Republican leadership could galvanize voters to elect friendlier candidates in upcoming elections. A letter from a local Republican operative to the Fort Wayne Republican City Council members indicate that the party itself fears that its council members may have gone after local unions—which is to say workers—too bluntly.
Ultimately, the Fort Wayne law, along with other local right-to-work statutes, could be decided in the courts. According to Kenneth G. Dau-Schmidt, a professor of labor and employment law at Indiana University, right-to-work regimes like that of Fort Wayne might be imperiled by both the state constitution, which requires “just compensation” for union representation, and also by a state law that governs police and firefighters unions. Before now, Dau-Schmidt had never heard of this sort of law being determined by cities and counties. “Generally we don't make labor law on the local level,” he says.
The Fort Wayne case would likely not qualify as a candidate for Heritage’s hoped-for Supreme Court win because state—rather than federal—laws often govern public sector workers, according to Lance Compa, an expert at Cornell University’s School of Industrial and Labor Relations. Compa argues that local right-to-work laws targeting private-sector unions would stand no chance in federal court.
“In the private sector this would be clearly pre-empted under the National Labor Relations Act,” Compa says. “States can enact these laws, but only states, and cities and counties cannot. I mean, they could do it, but it would only be symbolic, and it would be stopped in the court.”
Some conservatives disagree, and the spirit of a recent Supreme Court ruling gives them cause for hope.
In June, in a 5-4 decision in the case of Harris v. Quinn, the Supreme Court held that public sector unions across the country could no longer mandate dues from certain employees. Although the ruling’s scope was narrow, some labor law experts see the decision as opening the door to an eventual wholesale nationwide right-to-work ruling. William Messenger of the National Right to Work Legal Defense Foundation—the lead attorney representing the victors in that case—sat on a Heritage Foundation panel about local right-to-work laws held last week.
Messenger told the crowd that unions requiring members pay dues is “sort of a lot like a kidnapper, you know, saying that their victim should pay them room and board. Well, they don’t want to be there in the first place,” he said, adding that it is “the unions that are imposing their representation on those employees.”
Conservative ideologues hope that local right-to-work laws will, by their very existence, spread widely by placing pressure on neighboring localities to follow suit. In this view, once one town loosens its labor protections, it will become more attractive to business and thereby force nearby cities and counties to pass their own laws making it cheaper to hire people. Heritage hopes that this could ultimately filter up to the state, or even national, level. Andrew Kloster, a co-author of the Heritage report, cited Illinois and New York as states with right-wing localities that might pass such laws. (Of course, many economists have questioned the conservative gospel that right-to-work invigorates economies.)
“If you can’t get it at the statewide level,” added the report’s co-author, James Sherk, “the locality level is the next best thing.”
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