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Right-to-work in Missouri: What it means for employers

The recent gubernatorial election placed Missouri’s adoption of a right-to-work law as a front and center issue. The Missouri legislature had twice passed such a law, but each time it was vetoed by now outgoing Gov. Jay Nixon. With the election of a new governor, whose position is more closely aligned with the legislature on this issue, the passage of a right-to-work law is poised to become reality. The question is what will be the immediate and long term impact on both unionized and non-union employers in the state.

An overview of right-to-work

Federal law requires that employers negotiate with unions who become the exclusive representative of the employees in the represented group known as the bargaining unit. Those negotiations must have the aim of reaching agreement on a collective bargaining agreement (“CBA”) covering all the employees in the bargaining unit. A common clause in CBAs is a “union security clause” requiring all employees covered by the CBA, regardless of their own personal objections, pay union dues to keep their job. After all it is union dues that represent the primary revenue source for unions.

The question of whether a union security clause can be included in a CBA is a matter of state law. States that forbid such clauses are known as right-to-work states because employees have the right to work regardless of whether they pay union dues. At this point, 26 states have adopted such laws, and the list has been growing in recent years. Right-to-work does not change an employer’s obligation to bargain with a union that represents a majority of the employees in a collective bargaining agreement nor does it change the union’s obligation to provide fair representation to all employees covered by the collective bargaining agreement. Employees choosing not to pay dues are still covered by the collective bargaining agreement and the union remains their exclusive representative for purposes of collective bargaining.

Impact of right-to-work on existing CBAs

The right-to-work legislation in Missouri would outlaw union security clauses. However, since Missouri would be moving from an environment in which those clauses have not been prohibited up until now, the question remains as to how the law would affect current CBA’s that have union security clauses. One current draft of the right-to-work legislation in Missouri provides for a transition period for existing CBAs. Any existing union security clauses in current CBAs would remain in full force and effect until the CBA is up for renegotiation. This transition model was used recently in Michigan when it dealt with the change to becoming a right-to-work state. The practical effect of this temporary “grandfathering” of union security clauses in existing CBA’s has been that many unions have sought multiyear extensions of current CBA’s in order to prolong the “grandfather” period. Employers who are willing to engage in these extensions often seek favorable language and economic terms, locked in for years, in exchange for agreeing to the extension. Employees, then, might naturally be confused as to why they can still be forced to pay dues even years after right-to-work passes. However, nothing in the current draft of the legislation or the Michigan experience prevents companies and unions from negotiating these extensions prior to the effective date of the law. Other bills that have been drafted do not contain a transition or grandfathering period, so it is still unclear what will ultimately be passed and signed into law.

Impact of right-to-work on union organizing/decertifications

Because new CBAs cannot contain union security clauses unions may actually have a much easier time unionizing new employee groups. One issue that inevitably comes up in a union organizing campaign is the cost of union dues to employees. Some employees vote against union representation because they don’t want, or can’t afford, to pay union dues without a guarantee of higher pay. Being required, or forced, to pay dues is often one of the main motivators in any employee voting unit or represented group. Eliminating this motivator can actually create challenges to employers who want to avoid having a represented workforce or would prefer to have their employees decertify an existing union. With right-to-work laws employees would more easily be able to take a chance on the union because if they don’t like the CBA they can simply choose to not pay dues. Employees who, at first, may not have a strong opinion about unions one way or the other may now be assured that if they don’t want to be involved they don’t have to pay for the representation. Similarly, employees who are represented by the union and entitled to take advantage of typical contract terms like a grievance-arbitration procedure can stop paying dues (once they are past the transition period described above) if and when they become dissatisfied with the union. Many of these dissatisfied employees still like the “protection” of the grievance-arbitration process even if they don’t want to pay their money to the union.

Equally true, however, is that right-to-work and the amount of employees who choose to still pay dues has a practical impact on the unions representing them. If only three people out of 100 pay dues to the union, the union has the right to disclaim interest in representing the group and can choose to simply walk away from the bargaining unit. Over time, unions that collect less in dues money will have fewer resources to pay union organizers or devote money to organizing campaigns.

Impact of right-to-work on existing bargaining relationships

The impact of right-to-work legislation will be varied by employee group and the union involved. Some unions will likely “step up” their advocacy on behalf of employees to prove their worth and ensure employees continue to see the value in paying for representation. Others may focus on those groups where the percentage of those paying justifies the resources it takes to represent the group.

There are a great many misconceptions about right-to-work and what it does and does not mean for Missouri employers, employees, and unions. At the end of the day it comes down to money and choice. In the short term, unions will likely seek to obtain long term deals to delay the impact of right-to-work on their existing CBAs, presenting an opportunity for employers to potentially benefit from these deals. In the long term, unions face decreased revenues and therefore decreased resources to devote to lobbying, organizing, arbitrating and representing Missouri employees.

hasman-j-pJ.P. Hasman is a partner in the employment and labor practice at Armstrong Teasdale in St. Louis. He can be reached at 314-552-6652 or jhasman@armstrongteasdale.com.

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