Breitbart.com columnist Rand Paul and his fellow Kentucky Senator, Minority Leader Mitch McConnell, this week announced their intention to attach a nationwide “Right to Work” amendment to the Employment Non-Discrimination Act, the bill to ban discrimination against LGBT workers which passed the Senate Thursday afternoon. McConnell pitched the anti-union amendment (which didn't get a vote) on Tuesday as a way of “ending institutional discrimination against workers” and “helping restore worker rights.”
In other words, the Kentucky senators – who both voted to deny cloture and let companies keep firing queers - are urging ENDA better tackle “discrimination” by weakening unions, which will remain the main bulwark against anti-gay firings after House Republicans strangle the bill. The technical term for this is chutzpah.
“Right to work” is the intentionally-confusing term pushed by proponents of the business lobby’s favorite anti-union law (unions have come up with a range of alternative monikers, which range from unwieldy to alienating). These laws – passed most recently in Indiana and Michigan - ban unions and companies from negotiating union contracts which include a clause requiring workers represented by the union to pay for the costs of being represented by the union. To call that a blow against “discrimination” is a stretch.
I’ve written before about my discomfort with some rhetoric used by unions and liberals to criticize “Right to Work." The problem with comparing benefiting from union representation without paying for it to getting free services from a business is that unions won’t make it through their current crisis by acting like businesses or service agencies. “Right to Work” or not, the unions that survive and thrive will be social movement organizations in which members choose to do way more than pay dues. But “Right to Work” – by design – makes it harder to build that kind of organization: It defunds unions and divides workers by creating an environment in which all are represented (as required by law) but only some pay. It diverts resources and drags unions onto defense, leaving it less likely they’ll mount aggressive campaigns against non-union companies and anti-union politicians. And it fosters discrimination by offering companies another lever to discourage or punish union involvement.
But to hear McConnell tell it, the “discrimination” Congress should concern itself with is the scourge of states without Right to Work laws, in which he suggests that the National Labor Relations Act still “allow[s] as a condition of employment, forcing workers to join a union or forcing workers to pay union dues.” In fact, even in states without Right to Work, the law doesn’t let companies and unions negotiate contracts that compel union membership, or dues. Rather, in those states, it just lets them negotiate contracts that require workers in the bargaining unit – those who are covered by the contract and have a right to fair union representation in disputes, whether or not they join the union – to pay a share of the cost of representation.
Much of the work that unions must do if they’re going to maintain their relevance and clout for current members – like organizing to unionize a company’s competitors – is work that, by law, they can’t compel workers to pay for, whether they’re in union-buster’s paradise South Carolina or non-Right to Work New York. (Where that boundary lies when it comes to political lobbying on workplace issues has been a contentious question at the Obama-era National Labor Relations Board.)
Here’s what the Kentucky senators also aren’t saying: Union bargaining doesn’t start unless a majority of workers have said they want a union. In fact, thanks to American labor law grotesquery, it often doesn’t happen even if a majority of workers say they want a union. Unions are required by law to elect leaders and disclose detailed financial info, and they generally hold ratification votes before signing contracts (usually including both those dread clauses requiring people to pay for representation, and raises that outstrip the cost of dues). If members or non-members believe the union is violating its legal duty to represent them fairly, they can bring charges against the union. If enough workers believe they’d be better off non-union, there are windows to petition and force a vote on ousting the union – elections that the anti-union Center for Union Facts notes “are not rare” (their “How to Decertify Your Union” page even offers sample petition forms).
US unions certainly could and should be more democratic (though, right-wingers be warned: the more democratic unions are also often the more militant ones). But union members have many more avenues to influence and object to how their union spends money – and to everything else related to their paychecks – than non-union Chick-fil-A workers had over the profits they created being donated to anti-gay “conversion therapy”, or you have over your taxes going to civilian-killing drones.
While McConnell and Paul are engaged in cynical trolling, “conditions of employment” would in fact be an excellent topic for national political debate. For example, federal law lets your boss require heterosexuality as a condition of employment (again: both Kentucky senators voted against changing that). A Texas Court of Appeals found it was legal to fire a woman for her after-hours volunteer work serving AIDS patients at a soup kitchen. An insulation company terminated an employee after she wouldn’t take the John Kerry bumper sticker off of her car. A meteorologist alleged she was fired for Facebook comments rebutting racist criticism of her hair. A Florida law firm fired employees for wearing orange shirts. And companies can make it a condition of employment that workers sit silently in mandatory “captive audience” meetings and be lectured to about opposing unionization, supporting Mitt Romney, or nearly anything else.
That’s life in the non-union private sector. Yet none of those conditions of employment – the result of unilateral caprice by bosses, unlike paycheck deductions established through collective bargaining – have the gentlemen from Kentucky up in arms.