Right-to-work bills get committee hearing

Two of Montana’s largest employers and the labor unions who represent the bulk of their workers found common ground this week, uniting in a committee hearing to oppose a major overhaul to private-sector labor law in Montana, a state with a storied union history.

At issue is House Bill 251, the most sweeping of several Republican-backed proposals this session that would weaken the position of labor unions in the state. While other bills would require additional layers of consent for union membership and the subtraction of dues from a worker’s paycheck, HB251 would outlaw requirements for union membership as a condition of employment and remove a union’s ability to collect fees from non-members who might still receive representation from the union.

Broadly, these policies are referred to as right-to-work, a convenient if imprecise shorthand for one of the labor movement’s key political fights. If HB251 passes, Montana would become the 28th state with right-to-work on the books, and the last state among its immediate neighbors in the Mountain West to adopt such a policy.

In a hearing on the bill Tuesday in the House Business and Labor Committee, dozens of skilled trades workers in Montana unions like the AFL-CIO flooded the hearing room and surrounding hallways, warning that right-to-work — a policy that proponents say is necessary to protect the rights of workers to speak freely and enter into fair contracts — would sacrifice the collective bargaining rights of organized working people in Montana for unclear economic benefit.

“We believe this bill will undermine our freedom to negotiate fair wages and safe working conditions,” said Al Ekblad, the executive secretary of the Montana AFL-CIO.

Ekblad’s union and others were joined in opposition to the bill by large employers with heavily unionized workforces, including industry giants Sibanye-Stillwater, a mining company, and Northwestern Energy.

“I can’t think of one example where right-to-work would improve our workforce,” said David Hoffman, a lobbyist for the power company Northwestern Energy, where 644 of the company’s 1,500 Montana employees are in a collective bargaining unit. “As a matter of fact, it would create dissent.”

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Laws such as HB251 have been legal since the 1940s. Some states have written them into their constitutions, others have adopted them through legislation. In 2018, the U.S. Supreme Court effectively created a right-to-work policy regime for public employees nationwide through its ruling on Janus v. AFSCME, finding that the collection of so-called “agency fees” from non-union members to cover the costs of collective bargaining was a violation of the First Amendment.

The underlying logic is that workers have a constitutionally protected right to withhold their support from a public-sector union engaging in political activities they might disagree with. Janus reversed precedent created in the 1977 case Abood v. Detroit Board of Education, which held that union shops were legal in both the public and private sectors, and that unions could collect fees from non-members if they were part of a unionized workplace.

HB251 would bring those provisions into the private sector, which the Janus decision avoided.

“I believe there are certain liberties that can’t be bargained away at the negotiation table between labor and management,” said HB251’s sponsor, Rep. Caleb Hinkle, R-Belgrade.

Hinkle and other proponents of right-to-work frame the policy as a matter of worker freedom, even dubbing HB251 the “Worker Freedom Act.” Workers should have the choice to not financially support their union without losing employment, they contend, even if they continue to receive representation by the local.

“The twin sources of big labor’s power are monopoly bargaining and forced dues,” said Greg Mourad, vice president of the National Right to Work Committee, one of a number of national conservative groups that push right-to-work policies in state legislatures. Mitigating that power is a central tenet of right-to-work laws.

Thanks to the U.S. Supreme Court’s 1988 ruling in Communications Workers of America v. Beck and certain provisions of the National Labor Relations Act, workers can already opt out of a union under current law, said Ekblad, of the AFL-CIO. Roughly 4,000 Montanans are represented by unions of which they are not a member, according to 2020 data from the Bureau of Labor Statistics.

Until Janus, both private-sector and public-sector unions could require fees to be paid to the union or an affiliated nonprofit from those who choose not to join up. In Montana currently, only private-sector unions have this ability, but would lose it under HB251.

Nationwide, right-to-work laws have almost universally been associated with declines in union membership, already on a downward trajectory compared to peaks in the mid-20th century. Groups like the Mackinac Center have touted declines in union enrollment and income as a result of these policies as demonstration that union members want to leave their organizations.

Ekblad sees it a different way.

“I think the pressure will come from outside of the workplace,” Ekblad said. “There’s mailings coming in encouraging people to disaffiliate. They’ll continue to put pressure on workers. Our job is to encourage them to engage even deeper.”

Aside from going after union membership, HB251 affects collective bargaining in other ways, said Amanda Curtis, president of the Montana Federation of Public Employees.

“This bill has 12 sections of code that make you a criminal in 12 different ways,” she said.

One example, she said, is a provision mandating that employers post a notice in the workplace informing employees that it’s “unlawful for a labor organization and an employer to enter into a contract or agreement that requires the employee to pay dues, fees, assessments, or charges of any kind to a labor organization as a condition of obtaining or retaining a job.”

This goes beyond what’s in most right-to-work policies, she said. Curtis added that the bill could also have constitutional issues, as it would necessarily affect the provisions of contracts already negotiated between the state and the public employees that Curtis represents.

The bill as initially written would have also required the attorney general to investigate violations of the act, something Curtis said would be improper given that the violations in the proposal are all misdemeanors. A proposed amendment from Hinkle would remove this provision, though that has yet to pass.

All of this amounts to what she and other union officials see as an assault on collective bargaining rights, an attempt to weaken the position of unions in both the public and private sector, to reduce the union’s ability to pay for its operations, to convince or confuse workers into leaving the union.

One example Curtis gave to the committee is a provision that would outlaw “any strike, picketing, boycott, or other action by a labor organization to induce or attempt to induce an employer to enter into an agreement” in violation of the bill. The ability to strike is something covered in a union-negotiated contract, she said; changing this arrangement in statute interferes with the collective bargaining of a union.

“Items like whether or not an action can take place or what kind of an agreement can be entered into are all mandatory subjects of bargaining between an employer and employees who choose to unionize or not,” Curtis said.

Hinkle has proposed to remove this section as well, which Curtis said could be a result of her testimony on the bill — though she emphasized that she was not responsible for the amendment itself.

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Then there’s the complicated issue of economics. A key argument for right to work among the policy’s proponents, one common across the states that have adopted the policy in recent years, is that enacting right-to-work legislation will attract major employers, stimulate job growth and even improve wages and the other worker benefits that unions look to secure.

“Montana is lagging behind our neighboring states in establishing right to work,” said Randy Pope, the executive director of Montana Citizens for Right to Work, a Belgrade nonprofit associated with Mourad’s national committee. Pope’s group has been at the center of multiple candidate coordination scandals.

But the research on this front is often contradictory, or conducted by groups that have a vested interest in one policy outcome over another. Hinkle, for example, said that compensation growth for private sector workers in some right-to-work states exceeds Montana’s.

On the other hand, a 2021 study from the left-leaning Illinois Economic Policy Institute of economic outcomes in right-to-work and collective bargaining states found essentially the opposite — workers in collective bargaining states see higher wage growth, better benefits, more civic engagement and so on.

For a local perspective, annual average construction salaries in Montana are around $51,000, compared to around $43,000 in Idaho, a right-to-work state, according to 2019 data from the Bureau of Labor Statistics. But the trend doesn’t hold across all of Montana’s neighbors; the average construction salary in right-to-work Wyoming is at $53,000, even higher in North Dakota.

One difficulty with tracking the economic outcomes of right-to-work laws is the diffuse set of policies that determine a state’s economic health, including existing union density and other policies that lawmakers market as “pro-business.”

In a recent paper in the American Journal of Sociology, author Tom VanHeuvelen found that these laws are “highly consequential” in states where unions have “something to lose.” In other words, in states with high union density — Montana, at 12 percent, is not the highest but is substantially above average — right-to-work laws are correlated with a greater increase in economic inequality than in states with low union density.

“They can throw out all the statistics in the world, and we can counter them with all the statistics in the world, but at the end of the day, the labor movement is growing, the number of organized workers is growing,” Ekblad said. “So many people are being screwed by the economy.”

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Of the several other legislative proposals to chip away at union power in Montana, HB251, the most sweeping, could face political challenges. Ekblad has previously said he doesn’t believe the state has the appetite for it, given that many Republicans count union members among their constituents.

At least one House Republican, Rep. Greg Frazer of Deer Lodge, outright opposes right to work in principle. Frazer, a corrections officer and a member of MFPE, said he believes the fallout from right to work could be significant.