Why Amer­ica’s la­bor unions are about to die

The Denver Post - - BUSINESS - By Ray­mond Hogler Ray­mond Hogler is a pro­fes­sor of man­age­ment at Colorado State Univer­sity. His re­search fo­cuses on la­bor and em­ploy­ment re­la­tions. He is the au­thor of more than 60 ar­ti­cles and has pub­lished four books in his ar­eas of in­ter­est. This colum

I’ve writ­ten be­fore on how the de­cline of or­ga­nized la­bor be­gin­ning in the late 1970s gave birth to the back­lash that fueled Don­ald Trump’s elec­tion. La­bor’s de­te­ri­o­ra­tion weak­ened worker pro­tec­tions, kept wages stag­nant and caused in­come in­equal­ity to soar to the high­est lev­els in over eight decades.

It also made work­ers feel they needed a sav­ior like Trump.

In other words, his un­likely vic­tory fol­lows a straight line from the de­feat of the La­bor Re­form Act of 1978 to the Nov. 8 elec­tion. That bill would have mod­ern­ized and em­pow­ered unions through more ef­fec­tive recog­ni­tion pro­ce­dures ac­com­pa­nied by en­hanced power in ne­go­ti­a­tions. In­stead, its death by fil­i­buster be­came the be­gin­ning of their end.

It’s a sad twist of irony that Trump’s elec­tion and Repub­li­can dom­i­nance across the coun­try may fi­nally de­stroy the in­sti­tu­tion most re­spon­si­ble for work­ing- and mid­dle-class pros­per­ity. It will likely be a three-punch fight, end­ing with the ex­pan­sion of right-to-work laws across the coun­try that would per­ma­nently empty the pock­ets of la­bor unions, erod­ing their col­lec­tive sol­i­dar­ity.

In 1980, union mem­ber­ship stood at 23 per­cent of the work force. Some 40 years later, just over 11 per­cent of Amer­i­can work­ers be­long to unions.

Three key ar­eas will play a cru­cial role in union diminu­tion and work­ers’ bar­gain­ing power dur­ing Trump’s ad­min­is­tra­tion.

The first is reg­u­la­tory. Trump has the op­por­tu­nity to ap­point two new mem­bers to the Na­tional La­bor Re­la­tions Board now con­trolled by Obama ap­pointees with ad­min­is­tra­tive dis­cre­tion to im­ple­ment pro-la­bor de­ci­sions. Trump’s fu­ture re­place­ments un­doubt­edly will pro­mote a busi­ness-friendly agenda, and the board’s shift in em­pha­sis will be im­me­di­ately ap­par­ent.

The sec­ond is the Supreme Court. If Trump fills the va­cant seat with some­one in the mold of the late An­tonin Scalia, the new court will likely up­hold what in my view is the rick­ety con­sti­tu­tional the­ory of union dues put forth by Sa­muel Al­ito in Knox v. SEIU. Al­ito’s rule holds that a pub­lic sec­tor union mem­ber will be deemed to “opt out” of pay­ing dues un­less they “opt in.”

In early 2016, the Friedrichs v. California Teach­ers As­so­ci­a­tion case, which would have man­dated a con­sti­tu­tional right-to-work rule, stalled out with Scalia’s death, but a sim­i­lar case is mov­ing through the lower fed­eral court sys­tem.

The most lethal blow against unions is the ex­pan­sion of right-to-work laws.

Trump ran on a plat­form of mak­ing Amer­ica great again by restor­ing in­comes through in­no­va­tion and dereg­u­la­tion. Trump’s plan meshes per­fectly with the ide­ol­ogy of right to work, which pro­motes it­self as a tool of de­vel­op­ment and eco­nomic ad­vance­ment.

Twenty-six states have now en­acted right-to-work laws, which for­bid com­pul­sory pay­ment of union dues by work­ers who are cov­ered un­der a col­lec­tive-bar­gain­ing agree­ment. The laws cre­ate a free-rider prob­lem be­cause un­der the ex­clu­sive-rep­re­sen­ta­tion doc­trine, em­ploy­ees who do not pay dues must still re­ceive the same wages, ben­e­fits and pro­tec­tions as those who do.

Repub­li­cans in the past elec­tion won a leg­isla­tive tri­fecta in the states of Mis­souri, Ken­tucky, Ohio and New Hamp­shire. Those states are not now right-to-work.

In Mis­souri, Repub­li­cans leg­is­la­tors said they ex­pect to pass a right-to-work law that bars manda­tory union fees early in 2017.

Leg­is­la­tors in Ken­tucky fol­lowed a slightly dif­fer­ent route by fo­cus­ing on county rather than statewide leg­is­la­tion. Their gam­bit paid off in Novem­ber, when a fed­eral ap­peals court up­held the va­lid­ity of a county right-to-work law. Ex­pect the en­tire state to adopt the pol­icy soon.

New Hamp­shire de­feated right-to-work ini­tia­tives in 2011 and 2015. But with the elec­tion of a Repub­li­can gov­er­nor and leg­is­la­ture, the is­sue could pre­vail.

And in Ohio, a Repub­li­can leg­is­la­tor in­tro­duced a bill in April to ban com­pul­sory dues pay­ments. While Gov. John Ka­sich is not en­thu­si­as­tic about right to work, he could yield to po­lit­i­cal re­al­ity if the bill passes.

Clearly, right-to-work sup­port­ers have seized the ini­tia­tive and are march­ing on the of­fen­sive. With enough po­lit­i­cal mo­men­tum, the bat­tle for right to work could soon mi­grate to the fed­eral level, where a na­tional right-to-work bill is pend­ing in Congress. Repub­li­cans have the votes to pass it in the House. In the­ory, it could face a fil­i­buster in the Se­nate, but as a prac­ti­cal mat­ter, right to work may pass in the bat­tle for Democrats’ po­lit­i­cal sur­vival.

Since the Taft-Hart­ley Act of 1947, class forces in this coun­try have fought for supremacy over the po­lit­i­cal and eco­nomic ma­chin­ery as Repub­li­cans at­tempted to roll back the con­se­quences of the New Deal leg­isla­tive revo­lu­tion. Right to work fig­ures im­por­tantly in the strug­gle be­tween la­bor and cap­i­tal.

As I show in my book on the sub­ject, right-to-work laws are sta­tis­ti­cally cor­re­lated with lower rates of union mem­ber­ship, lower lev­els of hu­man de­vel­op­ment, lower per capita in­comes, lower lev­els of trust and less pro­gres­sive tax schemes. In short, the em­pire of right to work leans to­ward fur­ther en­trench­ing the power of cor­po­ra­tions, not the eco­nomic eman­ci­pa­tion of Amer­i­can wage earn­ers.

The vot­ers who brought Trump to the big dance would be the ones who suf­fer. As an ar­ti­cle in For­tune sug­gests, Trump’s plan for de­por­ta­tions and bro­ken trade agree­ments will in­flict se­ri­ous in­jury on the econ­omy in gen­eral and in par­tic­u­lar on those in­dus­trial sec­tors that elected him. The rest of us will be col­lat­eral dam­age.

Evan Vucci, The Associated Press

Repub­li­can pres­i­den­tial can­di­date Don­ald Trump speaks dur­ing a round­table dis­cus­sion on Sept. 5 with la­bor lead­ers and union mem­bers at Amer­i­can Le­gion Post 610 in Brook Park, Ohio.

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