A right-to-work history lesson

Among the contentious issues before the New Hampshire Legislature last year and this has been the so-called “right-to-work” bill that was passed in 2011 and vetoed by Gov. John Lynch. The Legislature failed to override the veto.When the bill was introduced again this session as House Bill 1677, it predictably passed the House, was considered by the Senate committee that recommended amendment, and then was tabled by the full Senate, notwithstanding the fact that there appeared to be sufficient votes to pass it, as the Senate had last year.The explanation for tabling the bill — effectively eliminating any chance of passage this year — was that the fate of the bill was certain to be the same as last year, and the Senate had better things to do than repeat the exercise, according to Senate President Peter Bragdon.Right-to-work legislation is a “hot button” issue with many on both sides of the debate. It has been introduced in one form or another in each legislative session for many years, but the present Legislature, with its very conservative majorities, is the first to have passed it.A little background on basic labor law is necessary in understanding the issue.Private-sector employees in the United States have had the right to bargain collectively and choose to be represented by labor unions since the passage of the National Labor Relations Act during the Roosevelt New Deal in the 1930s. Prior to that, attempts at collective bargaining were prevented by employers obtaining injunctions against the “conspiracy” of workers joining together to withhold their labor from their employers. The act was modified under the Republican Congress after World War II with the passage of the Taft-Hartley Act that added union unfair labor practices to the law.Unions, bargaining with employers sought various security arrangements in the collective bargaining agreements they negotiated under the NLRA.Unions initially sought so-called “closed shop” provisions in collective bargaining agreements that required employers to hire only union members for bargaining unit jobs, but this practice was made illegal.Unions then negotiated “union shop” agreements that required hired employees to join the union after a probation period, or lose their jobs. When employers objected to this coercion of their employees who might not want to be members of the union, the practice of “agency shop” agreements arose and was found legal.An “agency shop” provision requires employees who choose not to join the union to pay a portion of the union dues that is calculated to be the cost of representation in collective bargaining, but not the portion for social activities and certain other portions of the dues. This, unions argue, keeps those benefiting from the collective bargaining process from getting a “free ride” provided by union members paying their dues.An “open shop” agreement is one in which the union negotiates the collective bargaining agreement on behalf of all bargaining unit employees, but those employees do not have to pay any portion of the dues if they do not join the union. Under federal labor law, only “closed shop” agreements are prohibited.Two sides”Right-to-work” legislation prohibits forcing non-union members from being forced to pay any portion of dues under an “agency shop” provision (and prohibits forced joining of unions under “union shops”).This is the law in over 20 states and is believed by proponents to make those states more attractive to large employers, since it is less likely that employees will vote for unionization if they cannot be forced to pay a portion of dues under a negotiated agreement, and make such states less attractive to unions that will have a hard time getting funded.Unions oppose such legislation, since they assert that it will allow free-riding by employees enjoying the benefits afforded by collective bargaining agreements, and allow employers to treat employees unfairly, as was the case prior to the “leveling of the playing field” brought about by unionization.So who has the right side of this argument, and is it a big deal in New Hampshire?Certainly, “agency shop” agreements prohibit “free-riding,” but shouldn’t unions be able to demonstrate their value to employees and, if they cannot, be supported only by those they can persuade employees to represent them in the first place? Do not “agency shop” agreements deprive workers of their freedom of association?In New Hampshire, a small fraction of the private workforce is unionized, and those employers that are unionized often report smooth and peaceful labor relations, even under the law as it exists.Will “right-to-work” legislation attract employers to New Hampshire, as proponents assert?Readers, workers and unions will continue to debate these issues and retain their firm and passionate positions on these questions, since “right-to-work” appears to remain a theoretical question in New Hampshire if it remains tabled, as the Legislature moves on to other issues. Maybe this saga demonstrates the wisdom of the presumed rule that bills defeated in the first year of a two-year legislature cannot come up again in the second!Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association of New Hampshire.