Oregon should be 25th state to adopt Right to Work Law

Sen Doug Whitsett

by Sen. Doug Whitsett

In a truly free market economy, labor relations should be decided in voluntary negotiations between business and labor interests. People should have the right to work in any labor environment that is mutually acceptable to the employer and employees.

Many companies and their employees have endured and prospered for generations without the need for third party influence. On the other hand, some labor and business interests have exhibited a long history of attempting to gain control of the workplace through political influence.

The 1935 National Labor Relations Act (NLRA) guaranteed employees the right to self organize, and to select representatives of their own choosing to bargain collectively with employers. The Act applied to all employers engaged in interstate commerce except for airlines, railroads, agriculture and government. The Act allowed unions and employers to agree to a closed shop wherein employees must be a member of the union as a condition of employment. If the employee ceased to be a union member for any reason he could be summarily fired, even if he had not violated an employer rule. The bill also created the National Labor Relations Board (NLRB) to settle labor negotiation matters.

The NLRA was amended in 1947 to outlaw the closed shop. The Taft-Hartley Act prohibited unions from forcing employers to fire employees for violating the rules of organized labor. However, the amended Act continued to provide that an employee in a union shop be required to pay union dues as a condition of employment. An employee that did not wish to be a union member was still required to pay the equivalent of union dues.

The Act also provided for individual states to adopt “right to work” laws that required the workplace to be an open shop. These laws prohibit agreements between labor unions and employers that require an employee to be a union member or to pay dues to organized labor as a condition of employment.

In 1962 President John F. Kennedy signed Executive Order 10988 that allowed the federal workforce to organize into unions. His Order resulted in the rapid rise of the unionized public workforce in many states and cities including the Service Employees International Union (SEIU), the American Federation of State, County and Municipal Employees (AFSCME), and the National Education Association (NEA).

The traditional process for creating a union in the workplace is for labor leaders to approach the company’s employees and attempt to convince them that union collective bargaining can result in better compensation, working conditions, and job security. A union election can be forced if labor representatives are able to convince at least 30 percent of the employees to sign their intent to seek organized labor representation.

The NLRB process provides both union leaders and company representatives ample time to campaign for their respective positions before the election is held. A majority vote of the employees in a confidential ballot election determines whether the employees will be represented by a labor organization. Any effort to change representation or to dissolve the union is strictly regulated by NLRB processes.

It is readily apparent that the struggle to achieve superiority in the workplace through political influence has not diminished over the years.

The influence of organized labor in the private sector has waned mainly due to the high cost of union labor that makes unionized companies less competitive in the marketplace. At the same time, public employee unions have grown rapidly in both numbers and power. This is largely due to their lack of competition and their ability to influence legislation.

Twenty four “right to work” states have kept the influence of organized labor in check. These states are consistently among the national leaders in job creation, per capita income and economic growth. Their favorable business environment has acted as a magnet for capital investment and industrial growth.

Oregon has been a national leader among the twenty eight states that champion the cause of union shops and organized labor. Our public employees are among the most highly unionized in the nation. Our state has consistently been a national leader in unemployment, with nearly 20 percent of the workforce currently unemployed, underemployed, or having dropped out of the workforce. At the same time Oregon leads the nation with nearly 23 percent of the population using food stamps. It has remained in the bottom third of per capita income among the fifty states, and economic growth in most of the state is stagnant at best.

The Oregon Legislative Assembly adopted a “card check” law in 2007 that allows unionization without a secret ballot election. The process created allows union organizers to pick off one employee at a time until a majority has signed its intent to seek representation. The law requires the Oregon Employment Relations Board to certify a labor organization as the exclusive representative of employees once that majority has been reached. An actual union election is no longer required.

In 2009 the Legislative Assembly passed more laws designed to aid the efforts of organized labor. Two “gag rule” laws were adopted that strictly limit how employers can communicate with their employees regarding political matters. The ban includes any discussion with employees regarding the support of political or constituent groups. Since labor organizations are constituent groups, the law effectively bans the employer from discussing labor organization efforts with their employees. However, the ban does not prevent union representatives from discussing labor organization issues with the company employees.

This law is obviously biased in favor of organized labor and arguably violates the constitutional right to free speech.

The current federal administration is also advancing a political agenda designed to greatly enhance the scope and power of organized labor in the private sector. Although Congress has refused to adopt legislation authorizing “card check” unionization, similar to what the Oregon Legislature did in 2007, it has largely stood silent as the administration has taken repeated political actions to shift the balance of power to organized labor.

The President stacked the National Labor Relations Board, by appointing pro-labor advocates during Senate recess, in order to avoid the requirement for Senate confirmation of the appointments. The newly appointed Board majority actually sued Boeing Corporation, alleging that the company’s plan to build a new factory in a right to work state violated labor relations laws. The United States Supreme Court recently ruled the NLRB recess appointments unconstitutional, because only the Senate can declare itself in recess.

Not to be outdone by the NLRB, the Securities and Exchange Commission implemented rules, authorized under the Dodd-Frank Act that greatly enhanced the ability of unions to place their representatives on corporate board of directors. This was a concerted effort by organized labor to take control and unduly influence corporate leadership.  Fortunately, the rule was struck down by the Washington D.C. Court of Appeals calling the scheme “utterly mindless”.

The National Mediation Board arbitrates labor disputes regarding airlines and railroads where employees are not allowed to strike. The President appointed the president of the pilots union and a former president of the association of flight attendants union to that board. The board recently changed the rules to provide that employees who do not vote in a union election are no longer counted as part of the overall workforce. This action grossly reduces the number of votes needed to establish the majority required to authorize a union election. It effectively counts non-existent ballots as a pro-labor vote to organize.

History has clearly demonstrated the need for a balance of power between business and labor interests. It has also demonstrated that the political process is a poor means of regulating that balance because commerce is too much at the mercy of the composition of the political majority. Labor costs should be driven and controlled in a free market by the productivity and demand for labor.

Oregon’s failure to create new jobs is largely a function of the uncertainty caused by the intrusion of both state and federal government in the labor markets. A Right to Work Law guarantees that no person can be compelled, as a condition of employment, to either join or not join a union. Further, employees cannot be compelled to pay either dues, or payments in lieu of dues, to a labor union. Twenty four states have enacted Right to Work Laws under the authority granted by Section 14(b) of the 1947 Taft-Hartley Act.

In my opinion, Oregon should be the 25th state to adopt a Right to Work Law.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls

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Posted by at 05:00 | Posted in Employment, Labor, Public Employee Unions, Unions | 46 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Don’t tread on my union

    A union is started with a VOLUNTARY AGREEMENT between an employer and their employees-what gives the government the right to interfere?

    • While a VOLUNTARY AGREEMENT between individual employees and their employer should be valid, those employees who don’t voluntarily agree to be represented by the union should not be forced to pay dues to that union, and that union should not be required to represent those workers. That’s what Right to Work is all about.

      • 30+yearsunion

        Steve, I couldn’t disagree more. As an employer I have set several conditions of employment including pre-employment drug tests, background checks and membership in a trade union. If you don’t like any of those three conditions you are free to work elsewhere. I don’t need any help from the government to run my business: thanks, but no thanks. RTW has nothing to do with helping business owners, employees, or the economy in general. IMHO it’s just about politics and money.

        • I agree with you that as a private employer you should be able to set such terms for employment. However, whether mandatory union membership violates the employee’s First Amendment right to free association is something still to be determined by the Supreme Court.

          But in the public sector, the Court is setting out situations where forced unionism does violate a worker’s Free Association rights (Harris v Quinn). How far that will extend is yet to be decided.

          • Eric Blair

            So, if an employer comes to an agreement with a union to mandate union membership, that is fine? You’re now saying two different things. You’re saying that an employer should be allowed to set the terms of employment, but that there should be a Right to Work law.

            Which is it? If you accept a Right to Work law you are arguing that the employer should not have the legal right to set such terms of employment.

            And, if we’re going to extend constitutional protections into the workplace, then we should extend all such protections. Is that what you are truly arguing for? Up until today, constitutional protections were limited within the workplace.

            You seem to be arguing that workplace rules should have to abide and defer to constitutional protections. I can tell my boss what an ass he is, and what I think of him, and not worry about getting fired. Hell, I can tell prospective clients that our competitor has better quality products at a lower price – and it doesn’t matter if I cost the business money because I have First Amendment protections to free speech.

          • You’ve hit on one of the real difficulties in reconciling labor law with constitutional protections. I argue that the law should not force workers to contribute to an organization the oppose. RTW laws do prohibit employers from mandating that requirement and I wish that was also prohibited, but the courts have not done so. If you want to propose a law allowing private employers to mandate union membership in RTW states, be my guest.

            On balance, I prefer RTW laws to forced unionism as it exists in Oregon today.

          • Eric Blair

            Thank you no. I would rather spend my time keeping RTW laws from being adopted in this state. 😉

            However, you could inform the debate on RTW laws by proposing that the employer can mandate union membership as a condition of employment. However, that would gut the intent and purpose of RTW.

            So you don’t have any moral qualms about an employer requiring union membership as a condition of employment? I’m confused.

            What is the difference, in your mind, between a public and private employer in requiring union membership? You seem to be arguing, if I’m reading you correctly, that such a requirement on the part of a private employer is fine, but not on the part of a public agency employer.

          • Virtually everything a public employee union does is political, in the sense that it affects everyone required to fund the agency’s operations. Both public employer and public union are bargaining with our money, not their own.

            So, while I believe that a private employer should be allowed to require union membership, a public employer should not.

            Current RTW laws bar private employers from requiring union membership. As I noted elsewhere, you might want to work to change this. I’ll focus my limited time and resources working to enact RTW in the public sector.

          • Eric Blair

            Except the union is not bargaining with public money. Once the paycheck goes to the employee, it is no longer public money. Public employees are not buying houses, cars and groceries with public money. Nor are PEU’s using public money.. they are using money deducted from the employee’s paycheck.

          • Eric Blair

            I’m going to break this down into a few responses…

            You would only want to see a RTW that applies to public employess. You would be against a RTW that applies to private employers, correct? That is a change for you. I remember an ealier conversation on this blog where you argued that you thought RTWs for private employers was a good idea as well.

          • RTW is a good idea in the public and private sectors. What I’m saying is that in the private sector, that portion of a RTW law prohibiting the employer from requiring union membership may not be be a good idea. In most instances, of course, it works the other way around. Employers don’t want to force workers into supporting the union.

          • Eric Blair

            Finally, I believe you have argued that Freedom of Association is a moral issue and that requiring people to join unions is.. well.. immoral (not the word you used.. but if it’s not moral then…). I’m not sure I understand your thinking here.. is it immoral for a public employer to require union membership as a condition of employment, but not a private employer?

          • What I’ve said is that I believe it’s immoral for a third party (a union in this case) to stand in the way of a worker and an employer contracting on agreeable terms.

            The public employer is not contracting on its own behalf, but on behalf of the public. I’m arguing that the public should not require union membership (or fair share dues) as a condition of public employment.

          • Whether requiring union membership in any setting is a violation of Freedom of Association is something the Courts seem to be wrestling with now.

        • oregongrown

          But government IS A MONOPOLY. Government unions have a monopoly on the government workforce and because of that they exercise power that is not in force in non-government unions.

          If we could say, let’s just use another government, as someone can say let’s just use another electrician on this project, we would have the choice to opt out of using government unions. But we don’t have that choice. We are forced to use these unions. And because of that power they have taken advantage of the citizens of Oregon for way too many decades.

          The PERS cost explosion is a prime example of the abuse of power in the monopoly.

          The freedom to choose to belong to a government union or not should be available to all who choose to apply for jobs with the government. It should not be mandatory to join a government union, or pay dues to a union, many workers don’t feel they need. Many workers want to get, and retain, jobs based on their work skills and work ethic, and don’t want to pay for a union they don’t feel they need to represent them. That’s the essence of freedom in a democracy.

          The unions protect way too many people that should be gone from the workforce, but we are forced by the government union controlled workforce to keep paying them. That’s wrong. That’s the opposite of freedom. ANYONE should be able to apply for government jobs, based on their ability, and not be forced to join a union.

          • Eric Blair

            Then they can work for private industry, and a non-union employer at that. I’m not sure what you mean about government being a monopoly. That is like saying the Private Sector is a monopoly.

          • oregongrown

            Eric:

            Re: ” I’m not sure what you mean about government being a monopoly. That is like saying the Private Sector is a monopoly.”

            Did you really say that? Your reasoning is beyond help if you really believe that. The government IS a monopoly.

  • Bob Clark

    Minor quip, but there are only 50 states in the union, not 52; but maybe districts are also included here. Also, I believe there are more than 24 right-to-work states now, with two states joining this camp in most recent years (but not absolutely sure about this).
    The interesting thing about federal employee unions is they are largely voluntary and don’t exercise a whole lot of influence over the federal government. They are somewhat toothless, at least for the vast majority of federal workers. Yet federal employees get paid pretty, pretty generously; having personal experience in the matter.

    By contrast, state and local public employees really dominate local politics, having a big hand in electing those they negotiate with for establishing rank and file pay; having personal experience in the matter, too.

    So, I support trying to find someway to dial back the state and local public employee union dominance over state and local politics.

    • Bob, I believe the last two states to enact RTW, Michigan and Indiana, are the 23rd and 24th states to do so. And you’re correct that the federal government does not allow mandatory or fair share dues for federal employees, so in-effect the federal government operates under RTW rules. There are still a number of unions representing federal government employees who choose to be members and pay dues. That’s what should happen at the state level also. Oregon should become a Right to Work state.

    • Bob, recall that then-presidential candidate Obama said at a Portland campaign rally that he thought he’d campaigned so far in 57 states. Obviously factually incorrect, but I doubt any of his supporters think that error brings any of his policy prescriptions into question.

  • Eric Blair

    “These states are consistently among the national leaders in job creation, per capita income and economic growth.”

    This is not true of per capita income. Of the 15 top states in per capita income, only 3 are RIght to Work states: #7, Virginia; #12, Wyoming; and #14, Utah.

    Of the bottom 15 states in per capita income, all but two states are Right to Work states. The exceptions are #36, Missouri and #43, New Mexico.

    I’m not sure what statistic Doug is working off of when he claims that Right to Work states are among the national leaders in per capita income.

  • Jack Lord God

    Good article! What makes this argument shine is the way it lines out the history of how something does not become magically legal simply because it is in a contract. Voluntary contracts to something society and common sense view as wrong have a long and storied history of being illegal. The idea that one can be forced to join a union as a condition of work is one of those situations as it is demonstrable that half the country believes it to be so.

    It is time to move on and recognize that employer abuses in the past do not justify union abuses in the present. Forcing employees to join unions, which in the public sector seem to endlessly abuse their privilege, is something that has to end.

    Let’s get our economy moving again. Lets stop the abuse of the taxpayer. Enact right to work. End employer collection of union dues.

  • Eric Blair

    “…and economic growth in most of the state is stagnant at best.

    Yet the state managed to have the 3rd highest growth in GDP in 2012 of all the states.

    • So? Oregon often goes into recession faster than other states, and comes out faster also.* A high GDP growth rate in a given year must be compared to how far we fell in the previous recession years.

      In any case, these practical arguments pale in comparison to the moral argument for Right to Work; namely that no third party should stand between a willing employee working for a willing employer. Voluntary unionism is fine; mandatory unionism is not.

      * source: https://www.oregon.gov/DAS/OEA/docs/economic/oregon.pdf

      • Eric Blair

        I think the “moral” argument against Right to Work is by far the weakest. What if the employer want his employees to join a union? Would that be immoral? Why is this one requirement so much worse than others?

        As for so? Should there be some standard by which Doug reports the facts at they are, not as he wants them to be. Unless you’re always going to be there to clean up after him. I would think that you would be more alarmed at his rather egregious mistakes in using facts, or stating them correctly, than my pointing out his mistakes. A little bit of shooting the messenger. 😉

        Unless you’re more interested in achieving the results you want than the process by which you get there?

        • I didn’t say that forced unionism is worse than some other requirements, just that I believe it’s immoral. You disagree. I get that.

          Frankly, I’m “more alarmed” at your attempt to spin any mistakes in the post in favor of your position than I am alarmed at the mistakes themselves.

          • Eric Blair

            I didn’t make an argument, although it’s obvious I’m anti-RTW. So I didn’t spin anything. I pointed out that his statements were incorrect as he stated them. Unless your dictionary has a different definition of “spin”? Was I incorrect that his statements were wrong?

            Perhaps mistakes should be allowed to propagate themselves and we should just assume facts not presented into evidence. Either way, he wrote a sloppy article.

          • If he’d made mistakes that favored your argument I doubt you’d be as anxious to point them out.

          • Eric Blair

            Immaterial, misdirection, and based upon assumptions that are not founded upon any knowledge of me on your part.

            I think it’s better to deal with the reality of his post as it appears on this site right now. If, and when, I fail to note factual errors of someone I agree with, that would be an excellent time to point that out. Don’t you agree?

          • No. I’ll let my statement to you stand on its own.

            Neither my statement to you nor your question to me changes the underlying debate on RTW policy.

        • Eric, you ask ” What if the employer want his employees to join a union? Would that be immoral?” Note above that I said it would be immoral for a “third party” to stand between a willing employee working for a willing employer. In the case of a private employer wanting his employees to join a union, he’s the willing employer so it’s not the union or a government mandate forcing union membership, therefore in my mind that would not be immoral. It’s currently illegal in RTW states, but that’s not how I would craft a RTW measure if I had the final say.

          • Eric Blair

            “Why don’t you craft such a measure for Oregon and I may just support it.”

            Well.. I’m not in favor of RTW laws, so that would be a bit odd.

            However, you are.. since you are in favor of such a law, isn’t it more incumbent upon you to craft, or advocate, for a better law than a flawed, in your opinion, law?

            I’m fine with things as they are now. You’re the one that wants RTW for Oregon. Why wouldn’t you work to try and influence or craft a better law? Why on earth would you want me to do your work for you?

          • I have been working to influence RTW laws for Oregon; not necessarily perfect ones, but good ones. Thanks for the suggestion.

          • Eric Blair

            LOL.. I’m glad you’re doing that. I was puzzled by your idea that I try and craft a better law when I don’t feel any such law is necessary or wise.

  • Eric Blair

    Two “gag rule” laws were adopted that strictly limit how employers can
    communicate with their employees regarding political matters. The ban
    includes any discussion with employees regarding the support of
    political or constituent groups.”

    I could only find one “gag rule” bill coming out of the Oregon legislature in 2009 (Senate Bill 519). From what I understand is that there isn’t a ban on any discussion about political or constituent groups, but a ban on REQUIRING that employees attend such a meeting. That is a very different thing. The employer can hold such meeting, they just can’t compel attendance.

  • rharris78

    This article (and many though not all RTW arguments ) is based on a false premise.

    That an employee is on an equal footing with the employer. They are not.

    I worked at a paper mill. There was (and is) a unions that negotiated wages and benefits. The package was sufficient so that a HS grad could get a job and support a family quite well. If there was no union, I don’t think The President of the mill (or any manager) would be interested in sitting across a table to negotiate my pay and benefits. It would be dictated and I could take it or leave it. And the compensation would shrink and shrink for everyone.

    Because unions have been effective in increasing worker compensation, the capitalists (I don’t use that word negatively, I am referring to those who control large amounts of capital as owners, executives or managers), constantly use the political process to weaken the union laws. So, in turn the unions have become increasingly political to protect the labor laws.

    Capitalists will not stop trying to weaken existing labor law through the political process. So unions have to defend the current laws.

    We will continue to hear arguments that seem to make sense – let each worker negotiate their won packages- government doesn’t need to interfere- unions shouldn’t be political- but actually ignore the core issue. Labor and capital have a fundamental economic conflict of interest.

    That’s OK. But don’t make up silly arguments to justify why you want capitalists to have more power than labor. Or why labor should be active in the political arena to defend labor laws from capitalists who are active politically trying to change these laws.

    • Eric Blair

      The point about each employee negotiating is spot on. How many large companies have compensation packages tailored to each employee? No company would want to have 500 different agreements, so the majority of employees are offered a standard package of wages and benefits. The idea that each applicant negotiates their own wages and benefits simply doesn’t apply to most people who walk into the HR department.
      There is one small exception. sometimes an applicant can get the company to bump them up on the steps because of prior experience. However, they still work with a pre-established framework.

      One final note… this discussion is about employees that would be covered by a union. Management compensation is frequently more open to negotiation.

      • g

        RTW vs. Closed Shop. In our estate of the union, the former seems righter than what’s left of marketplace common sense.

    • MrBill97702

      What would you consider equal footing?

      In my work experience (consulting engineering), there’s no union representation. But despite that, employers can’t pay whatever they feel like paying their employees. They have to pay whatever the market says is needed to keep their employees from jumping ship and going somewhere else. It works pretty well.

      I have some beefs with unions. The biggest is that even though they have successfully negotiated higher wages from employers, it comes at a cost. When you increase the cost of labor, as unions have done, you decrease the amount of labor that will be required. Some, who would otherwise be employed are left in the cold. It’s easy to point out people who are helped. But no one thinks about those who are hurt.

      Personally, I think RTW is a good idea. If passed, I think you’d find some things would change. Some workplaces might see more people employed, but at lower rates. Whether that’s better or not is a judgement call. I lean toward letting Adam Smith’s invisible hand decide.

  • For those concerned about requiring unions to represent employees who opt not to pay fair share dues in a RTW state, here’s a thoughtful LA Times op-ed by two law school professors that was published last week. They agree with me that, in-effect, worker freedom should mean union freedom also:

    “Why should unions negotiate for workers who don’t pay their fair share?”
    https://www.latimes.com/opinion/op-ed/la-oe-sachs-unions-supreme-court-20140710-story.html

    If such freedom cut both ways, this should improve the chances of Oregon becoming the 25th RTW state.

  • laurie66bay

    A closed shop is modern day serfdom. If you don’t make your payoffs to your masters, you lose your job and get tossed out on the street, whether you are doing a good job or not. The unions steal your jobs and then make you pay rent to work there.

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