The Paradox Of Right to Work Laws and International Human Rights Law

Right-to-work laws and the accompanying decline in unionization in the United States surfaced in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018), where the U.S. Supreme Court ruled that public-sector union dues conflict with the First Amendment because such dues require workers to donate their money to public sector unions for political purposes. [1] In a 5-4 decision, the majority applied heightened scrutiny to the fair-share fee requirement, presuming the policy was illegitimate unless the government could demonstrate a compelling interest that justified infringement on free speech. Remaining silent on the question of workers' rights, jurists determined that the state did not possess an interest in labor peace (neutrality agreements between employers and unions) that could not be achieved through less restrictive means. [2] This ruling attests to America’s hypocrisy on workers’ rights on the international stage. As part of the United Nations’ International Labour Organization (ILO), the United States routinely includes provisions on workers’ rights in international trade agreements, but it has only ratified fourteen out of the 189 conventions. [3] Although international human rights law establishes the right of workers to collectively bargain, the United States has undermined collective bargaining through a series of Supreme Court decisions, including Janus, that have legitimized right-to-work laws by reinterpreting the First Amendment and have thus impeded the efficacy of unions.

The Universal Declaration of Human Rights states that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity” and “the right to form and to join trade unions for the protection of his interests.” [4] The International Covenant on Economic, Social, and Cultural Rights (ICESCR) establishes a right “to the enjoyment of just and favorable conditions of work,” which includes the right to “fair wages” and a “decent living.” [5] Article 2 of the ICESCR establishes a groundwork for governments to fulfill such rights by assigning “an obligation to move as expeditiously and effectively as possible” and “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.” [6] The International Covenant on Civil and Political Rights (ICCPR) recognizes the right to form and join trade unions, and several conventions in the ILO, such as Convention No. 87, promote the right “to establish and...to join organisations of their own choosing without previous authorisation.” [7] Not only does the United States disregard the aforementioned international charters, most notably Article 2 of the ICESCR, but Congress has adopted measures to prevent the government from being held to such obligations. When the United States ratified the ICCPR in 1992, it passed an additional amendment specifying that the provisions would not become part of the legal code absent further legislative action. By claiming that the Constitution fully addresses the scope of the Article 22 of ICCPR, the U.S. government bars individuals from bringing lawsuits under the treaty. [8]

Nevertheless, the United States fails to recognize such international obligations through its right-to-work laws, which obstruct collective bargaining. These laws prohibit “union-shop” rules that mandate union membership as a condition of employment, including the payment of union dues for collective bargaining. Ensuring that everyone who gains from unionization contributes to its costs, “union-shop” rules prevent free-riding, a situation in which individuals refuse to pay their union dues because they can continue benefiting from the fact that others do. Right-to-work laws first appeared in the 1940s, shortly after President Roosevelt acknowledged the right of employees to organize in the Wagner Act, yet their adoption did not accelerate until the 2010s, when midwestern states joined the “right-to-work belt” of southern and western states—a group of states in which legal restrictions make unionization especially difficult. [9] Conservative legislatures frame right-to-work laws as a component of American exceptionalism, claiming it is “sinful and tyrannical” for the government to “compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors.” [10] Following this argument, conservative legislatures have exempted themselves from international law. Yet right-to-work laws have hindered workers’ rights, with studies predicting that new prohibitions on unions mandating workers to pay their dues will reduce union fee-paying rates by up to 71 percent, thus complicating the ability of unions to exert their collective power. [11] 

Although the First Amendment protects the freedoms of petition and assembly, the Supreme Court has failed to apply it to labor laws ever since the enactment of the National Labor Relations Act (NLRA) in 1935. The NLRA legalized collective bargaining, with Section 7 guaranteeing employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and Section 8(a)(1) prohibiting employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in Section 7.” [12] Yet the Court upheld the Act under the Commerce Clause instead of the First Amendment, indicating that judges construed the Amendment to encompass only a narrow interpretation of liberty. [13] In 1940, courts adopted a more expansive view of the First Amendment, with Justice Louis Brandeis explaining that union members were entitled to publicize facts of a labor dispute because “freedom of speech is guaranteed by the federal constitution” and Justice Frank Murphy upholding the right to picket in Thornhill v. Alabama, writing that “liberty of communication” included the dissemination of “the facts of a labor dispute...by pamphlet, by word of mouth or by banner.” [14] Yet the more effective—and thus coercive—strikes became, the more corporations pushed back to define the Constitution according to their interests. Judges sided with them, under the belief that New Deal policies had excessively inflated union power and that it was the Court’s responsibility to interpret the Constitution narrowly to avoid an appearance of bias. [15]

Rulings on right-to-work laws reflected this change in interpretations of the First Amendment and culminated in Janus, which overruled prior decisions in favor of the interpretation of the conservative majority. Algoma Plywood & Veneer v. Wisconsin Employment Relations Board (1949) first ruled that such laws were legitimate since the NLRA did not prohibit states from enacting them. [16] Later that year, in Lincoln Federal Labor Union v. Northwestern Iron & Metal (1949), the Supreme Court upheld a Nebraska constitutional amendment and a North Carolina statute that both guaranteed employment regardless of union membership, arguing that these statutes did not abridge the freedom of speech and rights to “assemble, and to petition the Government for a redress of grievances.” Claiming that one cannot derive a constitutional right to exclude people from employment based on them not participating in unions or not paying union dues, the Court criticized the plaintiff’s argument for adopting “an expansive construction of the right to speak, assemble and petition.” [17] The Court later corroborated these findings from Lincoln in Davenport v. Washington Education Association (2007). [18] In a surprisingly progressive decision, Abood v. Detroit Board of Education (1977) held that unions could compel contributions for collective bargaining activities but not for political or ideological purposes; while this ruling did not prohibit state right-to-work laws, it established a precedent for the legality of “union-shop” rules. [19] Nevertheless, Janus overruled Abood, as the Court determined that public-sector union dues conflict with the First Amendment because they compel people to donate their money for political purposes. [20] Justice Alito compared union dues with political patronage, as he wrote, “It is an odd feature of our First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted.” [21] Yet, in the minority opinion, Justice Kagan noted that “almost all economic and regulatory policy affects or touches speech.” [22] Thus, the decision led down a slippery slope that could justify abolishing other policies such as taxation or the minimum wage by drawing a tenuous connection to free speech. [23] 

The failure of the First Amendment to lay the ground for the protection of workers’ rights reveals the importance of finding other ways to ensure compliance with international human rights laws. However, reversing precedents on unionization is difficult in the current legal regime. Over the past three years, states have passed legislation to lessen the impact of Janus by changing current uses of the right-to-work. Hawaii and Delaware narrowed the period in which workers can opt out of paying union dues, several states have facilitated interactions between public-sector workers and unions, and New York modified unions’ obligations to permit members-only bargaining, all without challenging the legal basis for the Janus decision. [24] Certain plaintiffs are exploring the possibility of overturning right-to-work laws under the Fifth Amendment, since forcing unions to expend resources on non-members without compensation could potentially constitute an unconstitutional “taking.” [25] While Judge Wood supported this interpretation in a dissenting opinion in Sweeney v. Pence (2014), it is unlikely the interpretation will become the grounds for overturning such laws soon. [26] From the standpoint of international law, it is even more difficult to challenge the laws, as domestic plaintiffs cannot appeal to international law in U.S. courts. The Alien Tort Statute (ATS) enables foreign plaintiffs to bring civil suits in U.S. domestic courts for violations of international law and has been used to demand reparation for workers’ rights violations committed abroad, such that legal scholars have considered its potential applicability to domestic workers. [27] However, the ATS is limited to customary international norms that are “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.” Since the cases against corporations have not “yet resulted in a merits decision in favor of the plaintiff,” this casts doubt on the applicability to domestic labor law. [28]

Despite proclaiming the importance of international law to the global community, the United States routinely violates international human rights law while claiming the Constitution adequately encompasses every human right. While international law is not necessarily inconsistent with the First Amendment, the First Amendment as applied today has been heavily influenced by corporate interests who have sought to exclude labor from protection by establishing such liberties as strict freedom from interference rather than positive rights the government must provide to its people. While reforms could dampen the effects of Janus, the future of collective bargaining does not appear promising due to the direct impact of the case and the legal and attitudinal barriers that exist to establishing a new interpretation of the First Amendment that more closely aligns with the United States’ international legal obligations in the context of labor relations.

Edited by Lorenzo Garcia

Sources:

[1] Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. (2018), Justia, online at https://supreme.justia.com/cases/federal/us/585/16-1466/ (visited July 18, 2021). 

[2] Aaron Tang, “Life After Janus,” 119 Columbia Law Review 3 (2018). 

[3] Sevrine Knuchel, “Examining Workers' Rights in International Human Rights Law: The Fast-Food Workers' Movement in the United States,” 33 Hofstra Labor & Employment Law Journal 17 (2015). 

[4] Id at 12.

[5] Id.

[6] Id.

[7] Id at 12, 14.

[8] Id at 15.

[9] Elizabeth Tandy Shermer, The right to work really means the right to work for less, The Washington Post (2018), online at https://www.washingtonpost.com/news/made-by-history/wp/2018/04/24/the-right-to-work-really-means-the-right-to-work-for-less/.

[10] Knuchel, “Examining,” 33 Hofstra Labor, (2015); Raymond J. LaJeunesse, Jr., The Future Looks Bright for the Right-to-Work Movement, The Regulatory Review (2019), online at https://www.theregreview.org/2019/04/05/lajeunesse-right-to-work-movement/.

[11] Tang, “Life After Janus,” 119 Columbia 3 (2018).

[12] Legal Information Institute, 29 U.S. Code Title 29—LABOR, Cornell Law School, online at https://www.law.cornell.edu/uscode/text/29 (visited August 5, 2021).

[13] Laura Weinrib, “The Right to Work and the Right to Strike,” University of Chicago Legal Forum (2017).

[14] Id at 527.

[15] Id at 532.

[16] Algoma Plywood v. Wisconsin Board, 336 U.S. 301 (1949), Justia, online at https://supreme.justia.com/cases/federal/us/336/301/ (visited July 18, 2021). 

[17] Lincoln Union v. Northwestern Co., 335 U.S. 525 (1949), Justia, online at https://supreme.justia.com/cases/federal/us/335/525/ (visited July 18, 2021); 

[18] Davenport v. Washington Ed. Assn., 551 U.S. 177 (2007), Justia, online at https://supreme.justia.com/cases/federal/us/551/177/ (visited July 18, 2021). 

[19] Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), Justia, online at https://supreme.justia.com/cases/federal/us/431/209/ (visited July 18, 2021). 

[20] Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. (2018), Justia, online at https://supreme.justia.com/cases/federal/us/585/16-1466/ (visited July 18, 2021). 

[21] Id.

[22] Id.

[23] Tang, “Life After Janus,” 119 Columbia 3 (2018).

[24] William A. Herbert, “Janus v AFSCME, council 31: Judges will haunt you in the second gilded age,” 74 Relations Industrielles 1 (2019). 

[25] Shaun Richman, Can the Courts Strike Down Right-to-Work?, The American Prospect (2019), online at https://prospect.org/justice/can-courts-strike-right-to-work/.

[26] Id.

[27] Knuchel, “Examining,” 33 Hofstra Labor, 17 (2015).

[28] Id.