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Digging into the history of "Right-to-Work" as Tennessee considers new amendment

If passed, Tennesseans will have the opportunity to vote on this amendment in the 2022 gubernatorial election.

NASHVILLE, Tenn. — The Tennessee State Legislature is poised to pass a constitutional amendment in the wake of this year’s election, an amendment which makes “Right-to-Work laws” a part of the state’s constitution. 

What are Right-to-Work laws? Workplacefairness.org says, “most Right-to-Work laws prohibit labor unions and employers from entering into contracts that only employ unionized workers for the jobs in the contract.” 

At first glance, this description coupled with the law’s title sounds fair enough, so everyone should have a right to work and no one should be excluded from employment if they haven’t joined a union, right? The reality of RTW laws is far more complicated than that. 

Initial impressions from the description of them, and the language used to describe them, create a favorable image to most people. But politics is often a game of marketing, and RTW is an excellent example of this. 

For example, Tennessee Employee Affairs subcommittee chairman John Holsclaw says, “Adding this language to our state constitution sends a message very loud and clear that Tennesseans want to make their own choices in the workplace.” 

Once again, this sounds like an unequivocally good thing, but what do those affected by RTW say about it? The AFL-CIO, the largest confederation of workers’ rights organizations in the country, has quite an opposite view. 

On the AFL-CIO’s website, they said, “The real purpose of right to work laws is to tilt the balance toward big corporations and further rig the system at the expense of working families. These laws make it harder for working people to form unions and collectively bargain for better wages, benefits and working conditions.” 

The AFL-CIO also points out that federal laws have prohibited union membership from being a condition of employment since 1947, making RTW laws a redundancy. Both sides of this battle over RTW laws are presenting working people with completely antithetical information, making the decision about which side will benefit them the most an incredibly complicated one. In order to make political decisions that will affect their everyday life, voters need the best information possible.

The EPI (Economic Policy Institute) published a study on the effects of RTW laws in 2015. These hard numbers presented via a peer-reviewed study conducted by a reputable research institute can show what the true effects of RTW are. 

The paper found that workers in RTW states had hourly wages which were, on average, 15.8% lower than in states without these same laws. Even after being adjusted for differences in living costs and other expenses between these states, the difference in wages was still 12.2%, with workers in states without RTW laws always earning more. 

After adjusting again for demographic factors (race, sex, age, marital status, and proximity to urban areas) the difference was still 8.9%. Given the controls in place, this is most likely the closest to the real difference in wages as it will affect everyday life. 

Although 8.9% does not seem like a lot, a nearly 10% raise in hourly wage would drastically change the lives of many hourly workers over the course of a year. In fact, it’s estimated that hourly workers in RTW states make approximately $6,000 less per year than those in states without the same laws. 

Along with wage differences, the EPI found that the passage of RTW laws drastically decreased both the prevalence and density of unions. As the density of unions decreases, so do the benefits given to workers. These include paid time off, paid sick leave, workers’ compensation, healthcare, and more. This doesn’t only apply to the workers in unions, but also those not in unions.

The study finds that an increase in union density will positively affect non-union workers as well, increasing pay and benefits regardless of union affiliation.

Tennessee has had Right-to-Work laws on the books since 1947, but why is that if the numbers show they hurt workers? The original Tennessee RTW statute became state law at the same time that the Taft-Hartley Act was passed nationally. 

The Taft-Hartley act, formally known as the Labor Management Relations Act of 1947, was meant to amend the more pro-union National Labor Relations Act of 1935. After its initial passage, the law was vetoed by President Harry S. Truman, and then the veto was subsequently overturned by congress. 

The Taft-Hartley act prohibited many of the large-scale direct actions which had been the strategies du-jour of the labor movement in the early 20th century. The law required a union to give a 60 day advance warning of a strike, narrowed the definition of unfair labor practices, and restricted the freedom of unions to contribute to political campaigns. 

It also included the basis for Right-to-Work laws, federally outlawing “Union Shops.” A union shop is any workplace in which an employer either agrees to only hire members of a union, or there is a portion of a union contract in which new employees will be required to become members of the union within a certain period of time. For example, an automotive factory which only hires UAW members is a union shop. 

The Taft-Hartley act makes this the federal norm unless state law says otherwise, and in Tennessee this has never been the case. The state adopted RTW just as the act was passed, making it an all but useless law. 

Encyclopedia Britannica writes that a reason for this was, “fear of communist infiltration of unions.” This is why the Taft-Hartley act also requires that any union officers swear, under oath, that they do not have any communist affiliations. 

Many historians, including author Diana Kiesinger, credit the Taft-Hartley Act as the beginning of Senator Joseph McCarthy’s infamous Red Scare. In Kiesinger’s book, The Unions and the Red Scare, she characterizes the scope of the red scare as such, “It spread out into every corner of the United States, be it the film industry, the government, academics and also into work-related institutions like labor unions.” 

In this book Kiesinger makes the case that RTW laws are, at least historically, a direct product of the widespread paranoia about communist infiltration which guided American politics for at least a decade. A paranoia that, in the end, was left largely unproven by any of McCarthy’s numerous investigations. 

Along with this work from modern historians, Right-to-Work was a contentious topic for many American figures in the 20th century. Martin Luther King Jr. spoke about them in 1961, saying “In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and our job rights. Its purpose is to destroy labor unions and collective bargaining.”

So given this historical context, and the fact that the law has been a part of Tennessee’s legal code for nearly 80 years, why are lawmakers attempting to make it a part of the constitution now? 

The first reason is that it is far more difficult to repeal a part of the state constitution than it is to repeal a state law. The same constitutional amendment was proposed in Virginia in 2016. The measure failed. However, to quote a story from the Washington Post, “The sponsor of the Senate legislation, Sen. Mark D. Obenshain (R-Rockingham), argued that future general assemblies and the current attorney general could not be trusted to support the right-to-work law that has been on Virginia’s books for decades.” 

One can assume that similar reasoning would be applied to another state’s attempt at the same legislative action. It serves as an insurance against a possible loss of state-wide power by the party, and a subsequent repeal of RTW laws. This could very well be a worry of the Tennessee resolution’s sponsor, Brian Kelsey. 

In the 2018 midterm election, Kelsey defeated his democratic opponent by less than 1,500 votes. However, Tennessee’s RTW laws have been in place for nearly 80 years. The law’s repeal has not been a significant concern, and wasn’t even a major campaign issue for Kelsey. Instead, his major campaign issue in the “Jobs/Economy” section of his 2018 campaign was minimizing EPA regulations. 

The first avenue through which to understand why this amendment is being pushed now is by seeing who/what would benefit from it. The entities which benefit from a lack of unionization will always be employers. That’s not meant to be a political statement, simply an analysis of the dynamics of the worker/boss relationship. 

In another study published by the EPI, Matthew Walters and Lawrence Mishel state that, “Unions have a substantial impact on the compensation and work lives of both unionized and non-unionized workers.” They go on to say, “Unions play a pivotal role both in securing legislated labor protections and rights such as safety and health, overtime, and family/medical leave and in enforcing those rights on the job.

Because unionized workers are more informed, they are more likely to benefit from social insurance programs such as unemployment insurance and workers compensation. Unions are thus an intermediary institution that provides a necessary complement to legislated benefits and protections.” 

However, this is a transactional relationship. The purpose of a union is to help the workers, not the employers. In the paper Do Unions cause Business Failures, John Dinardo of the University of Michigan and David S. Lee of UC Berkeley write that “It is widely understood that unions raise the cost of labor by raising members’ wages above market rates.” 

With that being said, the same paper finds that there is little to no correlation between unionization efforts and business failures. The only instances of business failure occurring in tandem with unionization efforts in the study come from when an employer shuts down a workplace in order to prevent unionization, or when unionization is a direct response to poor management. 

That paper also finds that unionization can affect the profits of a business, but only at the executive level. Outside of the actual owners of a company, the study finds the effects of unionization to be overwhelmingly positive. Even when it does affect the profit received by executives, it takes far less out of their salary relative to the amount gained by workers. 

So the obvious question at this point is, why do we have RTW laws? If the numbers show that RTW hurts workers overall, doesn’t provide any legal benefit not already provided by federal law, and can only minimally affect employers, why is it such a big issue? Especially in a time such as now, when the COVID-19 pandemic has demonstrated to many workers how essential it is to organize a means through which to dialogue and collectively bargain with their boss for issues such as receiving COVID testing, proper PPE, etc. 

From the information in these studies the conclusion can be drawn that only people who would support something such as RTW laws are those who cannot stand to lose what they have. For example, corporations with overwhelming disparities between executive and worker pay, and industries which depend upon an underpaid clientele (such as the payday loan industry). 

The website followthemoney.org catalogues all contributions which political candidates receive, along with the industries, companies, and individuals who send these contributions to a given candidate. The records for two prominent supporters of this RTW amendment show an extensive history of campaign contributions from industries which may have a vested interest in the amendment’s passage. 

Senator Brian Kelsey, the resolution’s sponsor in the state senate, has raised a total of $1,865,541 over his time as a candidate. Kelsey’s most prominent contributors include the Tennessee Bankers’ Association (15 donations totaling $17,000), Concerned Automotive Retailers (13 donations totaling $8,550), and FedEx (12 donations totaling $20,250). 

The final donor listed here, FedEx, is the largest employer in all of Tennessee, according to public records. They employ 30,000 Tennesseans in Memphis alone, and 425,00 throughout the state. 

Along with being one of the State’s largest employers, FedEx has an incredibly publicized history of attempting to prevent worker organization. This includes spending over $800,000 on anti-union consultants between 2014 and 2018, making them one of the top spenders on such resources nationally, according to an article by Michael Sainato in The Guardian

When Kelsey’s donations are organized by industry, followthemoney.org shows that his largest donors originate from many groups which stand to benefit from a lack of unionization. This includes receiving $102,367 from various lobbyists, many of whom acted at the behest of large businesses. 

Along with this, Kelsey received $37,400 from Payday/cash loan companies, including entities such as Harpeth Financial Services LLC (which accounted for $12,000 of total contributions from the industry). Payday loans are notorious for predatory lending practices which exploit low-income people. 

Payday loans often have no cap on interest rates, putting working families in horrific debt, with some interest rates being as high as 1900%. The industry depends upon a reliable population of people stuck working for low wages, and actions which raise the wages and living standards of workers will inevitably hurt payday lenders. 

In Tennessee, payday loans cannot exceed $500 dollars. However, according to usstateloans.org, the APR of payday loans in Tennessee is often up to 460%. This means that those who take out payday loans may end up owing almost five times the original amount.

Cameron Sexton, Tennessee House Speaker and vocal supporter of the constitutional amendment, has also received $35,600 from the payday loan industry, along with money from FedEx. This record of campaign contributions can provide some insight into the motivations behind the push for the RTW amendment. It’s publicly available information which can better inform working Tennesseans as to what they are truly voting for. 

The amendment is all but guaranteed to pass through the Republican-led state legislature, but that isn’t the final step. In Tennessee’s 2022 gubernatorial election, the people will have the opportunity to vote on this amendment. If a majority of Tennesseans do not support it during that election, there is no path for it become part of the state’s constitution.