New laws have unions singing the blues over the decline in dues

In February, Rep. Steve King (R-Iowa) introduced the National Right-to-Work Act, which seeks to outlaw compulsory union membership in most private sector jobs. While state and municipal labor relations are regulated by state law and thus not impacted by Rep. King’s bill, there remains considerable pressure on public sector unions. If this bill passes Congress and is signed into law by President Trump, organized labor in America will be struggling to find where its next dollar will come from.

In January, the Bureau of Labor Statistics issued its annual survey of rates of union membership which showed a continued decline in union membership. Today, 10.2 percent of the U.S. workforce are union members but only 6.4 percent of private sector workers belong to a union. This underscores the 30-year nosedive from a private sector unionization rate of 16.8 percent in 1983. Because labor unions derive the bulk of their revenue from membership dues, without paying members, their ability to fund organization drives and to engage in lobbying and political activity is greatly diminished.

{mosads}Viewed from this perspective, the investments made by organized labor during the 2016 federal election campaign cycle — approximately $110 million, a 38 percent increase from 2012 — will likely yield little in return. For all that money, Donald Trump is president and Republicans hold solid majorities in both the House and Senate, which is precisely what unions spent millions trying to prevent.

The National Labor Relations Act (NLRA), the federal law that regulates most private sector unions, allows individual states to pass “right-to-work” laws (RTW) that outlaw compulsory union membership. State RTW laws originate from the 1947 amendments to the NLRA. At the time, many in Congress believed that labor unions had become too powerful, especially given that the country had recently experienced some major industrial strikes. Rather than leave the RTW issue to the states, Rep. King’s bill would create a federal ban against compulsory membership under both the NLRA and the Railway Labor Act, which regulates labor relations in airlines and railroads.

Today, 28 states have enacted RTW laws, and some of the most recent reside above the Mason Dixon line — Michigan, Wisconsin and Indiana — a departure from the industrial manufacturing stalwarts located in the southern U.S. Most of the new RTW adopters have extended the ban on compulsory union membership to their public-sector workers as well, and even municipalities can jump on the RTW bandwagon, as seen in the legal challenge in UAW v. Hardin County, Kentucky.

Union advocates believe that RTW is inherently unfair because unions must equally represent non-dues paying bargaining unit members under the NLRA. Proponents of RTW argue that businesses prefer to place manufacturing plants in RTW areas and the passage of a federal law would level the playing field. However, the strongest argument for RTW is that it frees workers from becoming members of organizations whose politics and economic philosophy members may not agree with. Public sector proponents of RTW argue that compulsory membership violates the constitutionally protected right of association.

Last year, this argument made its way to the U.S. Supreme Court in Friedrichs v. California Teachers Association, a challenge to compulsory union membership brought by a California teacher. Due to the untimely death of Justice Antonin Scalia, the Court split 4-4 and left for another day the ultimate resolution of this issue. Other cases are bubbling up through the courts, and the recently decided case of Janus v. AFSCME may be the next one to make it to the Supremes to address the “fair share” fee issue.

Unions are beginning to feel the pinch. As The Hill reported this past December, the Service Employees International Union, one of America’s largest, plans to cut its budget by thirty percent over the next year. In February, the AFL-CIO announced it was cutting dozens of staff positions. Labor powerhouse states of Ohio and Pennsylvania have RTW bills pending in their legislatures. If the National Right-to-Work Act becomes law or the state and local law trend continues, labor unions will flat line and need a huge jolt to save them.

Mark J. Neuberger is of counsel and a litigation lawyer with Foley & Lardner. His practice involves the representation of management in all areas of employment law, including labor and employment guidance to clients.

The views expressed by contributors are their own and are not the views of The Hill.