Although the principle that a worker should not be forced to pay a union in order to keep his or her job applies to both private and public sector employment, the legal mechanism that provides that right differs between the two sectors. Knowing this difference is essential for understanding how right-to-work laws function.
During the 1930s, the United States experienced significant turmoil in private sector labor relations. Workers frequently engaged in strikes, including ones that paralyzed factories or even entire industries. At the same time, there were no laws preventing employers from intimidating employees trying to unionize, and some employers aggressively fought against unionization campaigns. In an effort to resolve these issues, and prevent further conflict, Congress passed the Wagner Act in 1935.[6]
The new law, more commonly known as the National Labor Relations Act, failed to achieve labor peace. Instead, the NLRA empowered unions by expanding organizing and bargaining privileges to such a degree as to tip the labor balance decidedly against employers. The interests of employers and vitality of their businesses, without which there would be no workers to unionize in the first place, were not adequately protected.
To better balance the interests of employers and labor, Congress fundamentally restructured the NLRA by passing the 1947 Taft-Hartley Act. The legislation was thoroughly bipartisan, garnering two-thirds support in Congress to overcome a veto by President Harry Truman.[7] Taft-Hartley laid the foundation of modern labor policy.
As amended by Taft-Hartley, the NLRA preempts states from regulating most aspects of private sector labor law. One notable exception, however, is the ability to prohibit union security agreements. Taft-Hartley permits such arrangements only if there is no state law which banned them. This effectively authorizes state legislatures to establish right-to-work laws in their own state.[*]
A wave of states quickly opted to provide right-to-work protections for workers in the years following Taft-Hartley. Twelve states became right-to-work within a year of the law’s passage, while another six adopted right-to-work in the following decade. Over the next 50 years or so, however, just four additional states joined this group in protecting workers’ rights. That changed in 2012 when a second wave of states began adopting right-to-work laws. Indiana and Michigan passed new laws that year. They were joined by Wisconsin, West Virginia and Kentucky shortly thereafter. All told, by 2023, 27 states have right-to-work protections.[8]
[*] Sec. 14 (b) of the NLRA states, “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” “National Labor Relations Act” (National Labor Relations Board), https://perma.cc/5G4N-TDXX.