West Virginia Enacts Right to Work Law over Governor’s Veto

New River Gorge Suspension Bridge, West VirginiaThe Right to Work juggernaut continues to roll in seemingly unlikely places.  On Friday, February 12, West Virginia Republican lawmakers overrode a veto by Democratic Governor Earl Ray Tomblin to pass legislation barring unions from forcing employers to fire workers who decline to pay dues.  The votes, 55-43 in the House of Delegates and 18-16 in the Senate – only a simple majority is required for a veto – make West Virginia the 26th state with such a law.  The measure had been introduced only a month earlier.  Mark Mix, president of the Springfield, Va.-based National Right to Work Committee, commented after the vote:  “Now, more than half of the states have enacted Right to Work laws to protect workers’ fundamental right to freedom of association.”  The state’s unions have a different view.

Organized labor resolutely has opposed the Right to Work principle for decades.  And it’s little wonder.  Unions, by nature, seek to maximize their membership and accompanying dues revenues.  Workers who won’t join, or pay partial dues (“agency fees”) in lieu of joining, represent a tangible threat to union collective bargaining power.  From a union’s standpoint, forced dues collection is the fair thing to do.  After all, a representation contract covers all workers at a site, whether or not they voted for representation.  Since all employees receive the benefits of membership, goes the argument, they should be forced to pay for those benefits.  Toward this end, unions use their authority under the National Labor Relations Act of 1935 to insert “security” clauses into contracts that compel an employer to fire non-joining workers who refuse to pay agency fees.  Congress, recognizing the inherently unfair bargaining advantage in this arrangement, passed the Taft-Hartley Act in 1947 over President Truman’s veto.  That law gave states the authority to bar private-sector unions from exacting tribute from non-joining workers.

After a burst of enactments in the South, the Great Plains and the Rocky Mountain West, movement into the Right to Work column slowed to a trickle.  When Oklahoma created legislation in 2001 (through voter referendum), it was the first state to do so since Idaho a decade and a half earlier.  And even there, supporters had to ward off a relentless union court challenge.  For about a decade after, there would be no new activity.  And then the situation dramatically changed.  In early 2012, Indiana passed a Right to Work law.  In December of that year, Michigan, an even more entrenched union stronghold, created separate private- and public-sector laws.  And then, last year, Wisconsin, led by embattled Republican Governor Scott Walker, became the 25th state to enact a Right to Work law.

On the surface, at least, West Virginia didn't seem like a logical candidate for passing a Right to Work law.  This was a state where unions long had wielded political influence.  The United Mine Workers, home union of current AFL-CIO President Richard Trumka, in particular had a well-earned reputation for exercising its will, often in heavy-handed ways.  But the union’s membership and influence have declined during the past couple of decades.  And when 2016 rolled around, Republicans, having enjoyed a rare legislative majority over the past year, believed the time for action had arrived.  And they had some convincing evidence in their corner in the form of a study released in November 2015 by the University of West Virginia's Bureau of Business and Economic Research.  Examining differences between Right to Work and non-Right to Work states, Bureau Director John Deskins concluded that Right to Work states, other things held equal, experienced 0.4 percent higher growth in employment and 0.5 percent higher growth in GDP.

On January 13, the first day of the current 60-day legislative session, GOP lawmakers unveiled Right to Work legislation.  And they put it on a fast track.  On January 21, the State Senate, following a ruling by the State Supreme Court to hand control of the evenly divided Senate to Republicans following a dispute over the replacement of a departing member, approved the measure by a narrow 17-16 margin.  Two weeks later, on February 4, the House of Delegates followed suit by 54-46.  Gov. Tomblin made good on his promise to veto, but the House and Senate each overrode by a simple majority.  The new law, which takes effect July 1, does not affect existing collective bargaining agreements.

It was a double defeat for unions and their supporters.  In addition to overriding the governor’s Right to Work veto, the GOP-majority legislature the same day also overrode Tomblin’s veto of a separate bill to repeal the state’s prevailing wage law.  West Virginia is among many states with legislation modeled after the federal Davis-Bacon Act, which requires that contractors submitting bids on public works projects exceeding a minimum dollar threshold pay a “prevailing” local market wage.  In practice, “prevailing” in a non-Right to Work state usually means “union-scale.”

Opinions on the legislature’s actions vary.  Senate President Bill Cole (R-Mercer) stated:  “I believe this is a critical first step toward bringing about the kind of change in West Virginia that is desperately needed to jump-start our struggling economy.  For far too many years, the status quo has held our state back.  Today is an important step in moving West Virginia forward.”  Jason Huffman, state director of Americans for Prosperity, likewise said:  “Today members of both chambers of the West Virginia legislature set the state on the course for job growth by finalizing passage of Right to Work.  We applaud their swift response to the governor’s veto and we are excited for the opportunities that have been created for the Mountain State.”  Union officials and supporters, by contrast, are not happy.  Kenny Purdue, president of the state chapter of the AFL-CIO, after thanking Gov. Tomblin’s efforts to block passage, said that his people would “remind” West Virginia voters this fall of which lawmakers failed them.  Ranking Senate Democrat Jeffrey Kessler termed February 12 a “horrific” day, likening the veto overrides to a “double-barreled attack” on West Virginia workers.

The latter claim is dubious.  Experience has shown that when workers are given the right to choose whether to remain in a union, many leave.  The University of West Virginia study, in fact, estimated that adoption of a Right to Work law would reduce union membership in the state by one-fifth.  Labor officials and political allies, ever focused on union institutional viability, can't bring themselves to admit that exit is voluntary.  What frightens union leaders are the consequences of exit:  namely, a reduction in revenues and a loss of credibility in organizing drives.  That’s why labor leaders paint non-joiners as “free riders” mooching off union-negotiated benefits.  But who is mooching here?  Non-member workers who pay partial dues are rarely treated well by their union, especially if they request a partial refund under the Supreme Court’s Beck decision.  Moreover, dues-paying workers pay costs of membership; they don't simply receive benefits.  And many of these workers may see the cost as too high.  West Virginia lawmakers, in recognizing as much, did the right thing.


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