New right to work state:

[zork]

Wisconsin is now a right to work state.

http://www.bostonherald.com/news_op...gns_bill_making_wisconsin_right_to_work_state

 

[Mr. Deez]

Right to Freeload?

 

[zork]

Right to Freeload?

I'm missing your point in this context?(Wisky has a near 5% unemployment rate I believe)

 

[Mr. Deez]

I'm missing your point in this context?

Then you don't know what right to work actually means. I'm 7 hours ahead of you, so I'm going to bed, but I'll explain tomorrow.

 

[zork]

I always thought it was the right not to have to join the Union. Or that a company could fire you without explanation. Etc, etc. Whereas having mandated amounts of employees per task, typically with an extra and sometimes idle hand many times, was in Union situations.

 

[Seattle Husker]

Snip from the article...

Just before the signing, Walker said the new law "sends a powerful message across the country and around the world." He followed that up with a fundraising plea to supporters.

"The Big Government Labor Bosses will never forgive me for taking away their power but we are doing the right thing," Walker said in the email, noting that he had signed the law and asking for donations of $10, $100 and $1,000.

I don't care who you are but that's funny. Give to unions or give to Scott Walker, the "big Wisconsin Government boss". I'm no fan of unions (wife is a teacher) but you don't essentially neuter employees right to unionize which Walker seems intent on doing.

 

[zork]

Texas is a right to work state. There is union activity in Texas. It is the freedom not to be in the union that is change.(as I understand it)

 

[Mr. Deez]

I always thought it was the right not to have to join the Union. Or that a company could fire you without explanation. Etc, etc.

Before I explain, let's deal with what right to work (RTW) is not. The right of a company to fire or take adverse employment action against you without explanation (or more precisely the right to fire you for any reason or no reason) is not RTW. It is employment at will. I'm generally supportive of the at-will relationship with some narrow exceptions. You shouldn't be allowed to fire an employee because of his race, sex (not the same as "gender identity" or sexual orientation), religion, prior military service, jury service, refusal to perform an illegal act, etc., and of course if you contractually alter the at-will relationship, courts should and generally do enforce the contract over the general presumption of the at-will relationship.

As for RTW, I'm going to remove it from the political talking points you hear on TV and simply look at the law. For simplicity's purpose, I'll use Texas' law. RTW is the idea that a "person may not be denied employment based on membership or nonmembership in a labor union." See Tex. Labor Code § 101.052. So what's wrong with that?

First, when you’re in a right to work state and choose not to join a union at a company in which the employees have chosen to unionize, you are still under the protection of the collective bargaining agreement that the union negotiated. In other words, we’re not really talking about the right to work, we’re talking about the right to freeload – enjoy the benefits of the union’s contract but fleece the union on dues. If you don't want to join a union, that's fine, but you should lose the union protections. You should have to bargain for your own wages, benefits, etc.

Second, if you don’t like your union's activities and/or its political activism (as I often wouldn’t), the law allows you to pay only the portion of your dues that go directly to representation (collective bargaining and contract administration). You don't have to pay for their political activities, so the rationale that RTW protects you from having to pay for the union's political contributions is phony.

Third, in addition to prohibiting employers from discrimination on the basis of union membership or nonunion membership, RTW also invalidates contracts between companies and unions in which the employer agrees to require employees to join the union within a specified period of time. See Tex. Labor Code § 101.053. If a company and its workers' duly-elected union representatives who have comparable sophistication (meaning they both know what they're signing) make an agreement as to how employees will be hired or fired, why should the government come in and invalidate the contract? If employers don’t like union security clauses, then don’t agree to them, but don’t whine and demand that courts and the legislatures bail you out of a contract to which you agreed.

Fourth, the business community is hypocritical on the issue in two respects. First, the business community frequently invokes the "freedom of contract" mantra when consumers want the courts to bail them out of lopsided, legalese-packed contracts with businesses that they never read, wouldn't understand if they had read them, and never bargained for. For example, if you sign a contract with your employer that requires you to arbitrate any disputes with him (meaning waive your right to take him to court) and you sue him anyway, the court is going to tell you to go screw yourself and render judgment against you for your employer's court costs, and the business community will celebrate that as an example of freedom of contract. But what are they asking for in a RTW law? They're asking the government to save them from labor contracts they would sign but don't like.

Second, the business lobby bellyaches when people advocate any kind of exception to the at-will doctrine. You'd be surprised to know this, but they fought and continue to fight the exception that says you can't fire someone for refusing to perform an illegal act. In fact, that's the weakest exception to the at-will doctrine in Texas law. See Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). If your employer tells you to go break into and rob his competitor's shop, most people would agree he shouldn't be able to fire you for refusing to do so. The business lobby disagrees, and they cite the sanctity of the at-will doctrine as their rationale. But carefully read the Texas RTW statute I cited above. It's a friggin' exception to the at-will doctrine! So they love freedom of contract and employment at-will but only to the extent that they benefit the business. If they benefit an employee or a labor union, then they hate them.

I'll be honest. Before I actually read a RTW law, I supported RTW. I also don't expect Republicans to analyze the issue as I have and agree with me. Supporting RTW is a core policy position of the GOP. I get a lot of flack from Republicans for opposing tort reform, but opposing RTW is in a class all by itself. It's downright treasonous to them, and if you try to engage them on it, most of them will just union-bash as a kneejerk diversionary tactic until the point gets lost - same thing liberals do by calling you a racist if you oppose affirmative action (or really anything liberals support).

Whereas having mandated amounts of employees per task, typically with an extra and sometimes idle hand many times, was in Union situations.

That has to do with the collective bargaining agreement in place. It can happen in a right to work or non-right to work states.

 

[zork]

cool. employment at will is something I was also putting in the right to work rules. Thanks for the clarification.

 

[iatrogenic]

when you’re in a right to work state and choose not to join a union at a company in which the employees have chosen to unionize, you are still under the protection of the collective bargaining agreement that the union negotiated

I read the law you linked, but I didn't see the protection mentioned above. Is that mentioned somewhere else?

 

[iatrogenic]

but they fought and continue to fight the exception that says you can't fire someone for refusing to perform an illegal act.

Okay, I read the case you referenced and it did not seem like the employer was fighting the exception that says you can't fire someone for performing an illegal act. It looks as though Hauck's version was he was fired for not performing an illegal act, and the employer's version was that he was fired for not performing duties that were legal.

I'm not trying to bash you, but the references you cite seem to be a little different than you portray them.

 

[Mr. Deez]

I read the law you linked, but I didn't see the protection mentioned above. Is that mentioned somewhere else?

Yes. That's federal law. It isn't part of the RTW law, but it combination of both create the freeloader phenomenon.

 

[zork]

http://www.wkow.com/story/28504777/...-in-nh-but-most-in-attendance-still-undecided

 

[iatrogenic]

I did see where the NLRB protects non-union workers in a manner similar to union workers, but I could not find anything that said the union contract protects non-union workers. I would be interested in any reference you could give showing the union contract protects non-union workers (i.e. "freeloaders"). I do doubt that non-union workers would receive union pension or health insurance benefits without paying for them. Interesting subject.

 

[sphinx]

obamanomics in action

 

[Mr. Deez]

I did see where the NLRB protects non-union workers in a manner similar to union workers, but I could not find anything that said the union contract protects non-union workers. I would be interested in any reference you could give showing the union contract protects non-union workers (i.e. "freeloaders"). I do doubt that non-union workers would receive union pension or health insurance benefits without paying for them. Interesting subject.

http://www.nrtw.org/a/a_1_p.htm

http://www.forbes.com/sites/rickungar/2012/12/11/right-to-work-laws-explained-debunked-demystified/

These links give some information on it. Nonmembers are still covered under the collective bargaining agreement (CBA), and the union is required to represent them. Accordingly, the CBA's benefits (pay, benefits, rights, etc.) are going to be available to nonmembers just as they would be to members. Accordingly, if you're in a RTW state, why would you join the union and pay dues when the union has to represent you for free? The freeloading isn't of money. It's of services. You get to exploit the union's services (negotiating with collective bargaining power) and without paying for it.

If the union itself provides pensions or health insurance benefits independently of the employer, that's another matter. They can restrict their own benefits to members. I'm only talking about the compensation and benefits provided by the employer under the CBA.

 

[Mr. Deez]

Okay, I read the case you referenced and it did not seem like the employer was fighting the exception that says you can't fire someone for performing an illegal act. It looks as though Hauck's version was he was fired for not performing an illegal act, and the employer's version was that he was fired for not performing duties that were legal.

I'm not trying to bash you, but the references you cite seem to be a little different than you portray them.

If that's the case, then I strongly question whether you actually read the whole opinion or if you stopped after the third paragraph that read, "Sabine testified through one of its officers that Hauck was discharged because he refused to swab the deck, man a radio watch and other derelictions of duty."

Yes, that was the testimony provided by Sabine's employer, but that wasn't the issue in the case. As you'll note, the opinion states, "[t]he sole issue for our determination is whether an allegation by an employee that he was discharged for refusing to perform an illegal act states a cause of action." The Texas Supreme Court wasn't there to decide whether Hauck was fired for refusing to perform an illegal act or because he refused to swab the deck, etc. In fact, the Texas Constitution prohibits the Supreme Court from making such factual determinations, which are the province of a jury, trial courts, and courts of appeals.

The procedural history of the case may be helpful in understanding the opinion. Hauck sued Sabine Pilot alleging that they wrongfully terminated him for refusing to perform an illegal act. At least some discovery was conducted, during which a representative of Sabine testified in deposition that Hauck was fired for refusing to perform legal acts (like swabing the deck).

Sabine Pilot asked the trial court to grant summary judgment in its favor. That means they argued to the trial court that even if the facts were as Hauck stated them (meaning even if he was fired for performing an illegal act), they were still entitled to judgment as a matter of law, because Texas law didn't recognize a cause of action (meaning a right to sue) for failure to perform an illegal act. Undoubtedly, they cited the employment at will doctrine, as they had a Texas Supreme Court opinion on their side recognizing the at-will doctrine. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (Tex. 1888). The trial court granted summary judgment in Sabine Pilot's favor, so they never empaneled a jury or even conducted a bench trial to determine why Hauck was actually fired. Furthermore, that means that Hauck wouldn't get his day in court to even argue over the reasons why he was fired unless the legal question of whether he could bring his lawsuit was answered by the appellate courts in his favor.

Hauck appealed and asked the Beaumont Court of Appeals to recognize a right for him to sue his employer for firing him for refusing to perform an illegal act. Sabine Pilot argued that the employment at will doctrine should decide the case, as required by Scott. They didn't argue that Hauck was fired for any other reason, because that would be a jury question, not a legal question to be brought before the court of appeals. Likely in anticipation of what the Supreme Court would do, they recognized the cause of action, and if you read that opinion, you'll see that they reversed the summary judgment and remanded the case to trial where a jury would hear both sides present their cases over why he was fired.

Once Hauck won in the court of appeals, Sabine Pilot appealed to the Supreme Court to overturn their decision. That means they were opposing Hauck's right to sue them for refusing to perform an illegal act. They reviewed the case and affirmed. Though they mentioned what Sabine Pilot testified to in deposition, they did so in passing (often referred to as "obiter dictum"). It wasn't what they were there to decide, leaving that question to be decided by the jury on remand.

If Sabine Pilot didn't have a problem with the right to sue for an illegal act, then they wouldn't have moved for summary judgment in the first place and certainly wouldn't have appealed the case into the Texas Supreme Court.

 

[Mr. Deez]

http://www.wkow.com/story/28504777/...-in-nh-but-most-in-attendance-still-undecided

BTW, don't take my opposition to RTW as an indication that I wouldn't support Scott Walker for President. Even if I disagree with him over this, I think he's good overall.

 

[iatrogenic]

If Sabine Pilot didn't have a problem with the right to sue for an illegal act, then they wouldn't have moved for summary judgment in the first place and certainly wouldn't have appealed the case into the Texas Supreme Court.

If that's the case, then I strongly question whether you actually read the whole opinion or if you stopped after the third paragraph that read, "Sabine testified through one of its officers that Hauck was discharged because he refused to swab the deck, man a radio watch and other derelictions of duty."

Yes, that was the testimony provided by Sabine's employer, but that wasn't the issue in the case. As you'll note, the opinion states, "[t]he sole issue for our determination is whether an allegation by an employee that he was discharged for refusing to perform an illegal act states a cause of action." The Texas Supreme Court wasn't there to decide whether Hauck was fired for refusing to perform an illegal act or because he refused to swab the deck, etc. In fact, the Texas Constitution prohibits the Supreme Court from making such factual determinations, which are the province of a jury, trial courts, and courts of appeals.

The procedural history of the case may be helpful in understanding the opinion. Hauck sued Sabine Pilot alleging that they wrongfully terminated him for refusing to perform an illegal act. At least some discovery was conducted, during which a representative of Sabine testified in deposition that Hauck was fired for refusing to perform legal acts (like swabing the deck).

Sabine Pilot asked the trial court to grant summary judgment in its favor. That means they argued to the trial court that even if the facts were as Hauck stated them (meaning even if he was fired for performing an illegal act), they were still entitled to judgment as a matter of law, because Texas law didn't recognize a cause of action (meaning a right to sue) for failure to perform an illegal act. Undoubtedly, they cited the employment at will doctrine, as they had a Texas Supreme Court opinion on their side recognizing the at-will doctrine. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (Tex. 1888). The trial court granted summary judgment in Sabine Pilot's favor, so they never empaneled a jury or even conducted a bench trial to determine why Hauck was actually fired. Furthermore, that means that Hauck wouldn't get his day in court to even argue over the reasons why he was fired unless the legal question of whether he could bring his lawsuit was answered by the appellate courts in his favor.

Hauck appealed and asked the Beaumont Court of Appeals to recognize a right for him to sue his employer for firing him for refusing to perform an illegal act. Sabine Pilot argued that the employment at will doctrine should decide the case, as required by Scott. They didn't argue that Hauck was fired for any other reason, because that would be a jury question, not a legal question to be brought before the court of appeals. Likely in anticipation of what the Supreme Court would do, they recognized the cause of action, and if you read that opinion, you'll see that they reversed the summary judgment and remanded the case to trial where a jury would hear both sides present their cases over why he was fired.

Once Hauck won in the court of appeals, Sabine Pilot appealed to the Supreme Court to overturn their decision. That means they were opposing Hauck's right to sue them for refusing to perform an illegal act. They reviewed the case and affirmed. Though they mentioned what Sabine Pilot testified to in deposition, they did so in passing (often referred to as "obiter dictum"). It wasn't what they were there to decide, leaving that question to be decided by the jury on remand.

If Sabine Pilot didn't have a problem with the right to sue for an illegal act, then they wouldn't have moved for summary judgment in the first place and certainly wouldn't have appealed the case into the Texas Supreme Court.

I think I understand the process, and I certainly don't agree with firing somebody for not performing an illegal act. I couldn't find which side won the jury trial, but the entire process seems to negate the idea of "right to work". In other words, if an employer had to defend every claim of a fired employee, what good are RTW laws?

 

[iatrogenic]

http://www.nrtw.org/a/a_1_p.htm

http://www.forbes.com/sites/rickungar/2012/12/11/right-to-work-laws-explained-debunked-demystified/

These links give some information on it. Nonmembers are still covered under the collective bargaining agreement (CBA), and the union is required to represent them. Accordingly, the CBA's benefits (pay, benefits, rights, etc.) are going to be available to nonmembers just as they would be to members. Accordingly, if you're in a RTW state, why would you join the union and pay dues when the union has to represent you for free? The freeloading isn't of money. It's of services. You get to exploit the union's services (negotiating with collective bargaining power) and without paying for it.

If the union itself provides pensions or health insurance benefits independently of the employer, that's another matter. They can restrict their own benefits to members. I'm only talking about the compensation and benefits provided by the employer under the CBA.

Got it. No healthcare or pension. Although legal, and knowing a few union members, I doubt a worker would want to subject him or herself to the pain and suffering union members would inflict on a non-member.

 

[Mr. Deez]

Got it. No healthcare or pension.

No, you don't have it. If the healthcare or pension are provided under the collective bargaining agreement, then the nonmember gets it.

Although legal, and knowing a few union members, I doubt a worker would want to subject him or herself to the pain and suffering union members would inflict on a non-member.

Maybe they would, maybe they wouldn't. Each situation is different. Union dues aren't an insignificant amount of money. If you don't derive any benefit from being in the union (which you typically don't if you're in a RTW because you can freeload), it's going to tough to sell the idea. People don't like throwing money away. It certainly makes a difference. It's no coincidence that RTW states generally have lower rates of unionization.

 

[Mr. Deez]

I think I understand the process, and I certainly don't agree with firing somebody for not performing an illegal act. I couldn't find which side won the jury trial,

I'm not sure what the jury ultimately did. In law school, they teach the Supreme Court case because it sets forth the law that governs all future cases. What the jury ultimately did is immaterial to an employment law course, because it's specific to that case. In all likelihood, Sabine Pilot (or its insurer) settled with Hauck, but I only say that, because the vast majority of cases settle. I have no specific knowledge of what ultimately happened.

but the entire process seems to negate the idea of "right to work". In other words, if an employer had to defend every claim of a fired employee, what good are RTW laws?

Like zork previously was, you're blurring RTW with employment at will. They are different concepts and really don't have a lot to do with one another. The right to sue for wrongful termination (whether it's for refusing to perform an illegal act, racial discrimination, or whatever) doesn't negate employment at will, but it certainly undermines it, and that's by design. The public wants employment at will to be the general rule, but it doesn't want it to be an absolute rule.

 

[iatrogenic]

The public wants employment at will to be the general rule, but it doesn't want it to be an absolute rule.

I agree.

 

[Seattle Husker]

Thank you very much for the education. I'll readily admit that I don't fully understand the ramifications of RTW legislation.

I'm opposed to Unionization in most instances. For White Collar job like teachers and Boeing engineers I firmly believe the unions actually hold back the salary growth of the quality workers and level it out by protecting the less than quality members. In farm workers and other blue collar jobs that don't have the benefit of education being an equalizer unions still have a role.

As far as the free loaders, I do see that getting the benefits of the union negotiated deals while not paying their dues is an extreme problem. If I understood it correctly, only 1 business leader in the State of Wisconsin actually supported this legislation or at least spoke out in support. That forced me to ask the question, why? Yes, I know that union reprisals can be a significant factor but I also know that administering union and non-union workers simultaneously can be a HUGE drag on operational efficiency. Are there likely some business leaders that would rather deal with a single union rather than hundreds or thousands of individuals? That's possible.

 

[iatrogenic]

No, you don't have it. If the healthcare or pension are provided under the collective bargaining agreement, then the nonmember gets it.

I'm guessing "freeloaders" as you described are as prevalent as unicorns.

 

[Larry T Spider]

Husker, like you I am against unions for positions like teachers. But, I don't see it as holding back salary growth. Five state do not have collective bargaining for teachers and the pay generally sucks in those places. For union states it's more of a mixed bag. I would hate to pay union dues and the high cost of living of Seattle and deal with the low pay. Texas is a much better deal comparatively even without collective bargaining.

I am against it in general because I don't think it's necessary. Most states have laws written to protect teachers and I feel that is sufficient. Districts need the flexibility to fire bad teachers if they can document how they suck and that attempts to make then better have failed. We don't renew teacher's contracts all the time and I have never seen a case where I didn't feel it was justified. I have also never seen a situation where the teachers at the school didn't support the decision. Those crappy employees make more work for the rest of us. I just don't buy that being able to get rid of the crappy teachers will lead to conservative states being willing to pay more because generally that hasn't been the case. Texas is somewhat of an exception in the five with what I would consider fair salaries.

 

[Seattle Husker]

I agree with much of what you wrote, Larry. I guess my primary issue is the salary step programs that the union puts in place. My wife is a middle school teacher and the whole years of experience combined with education level driving compensation is BS. New teachers can show that they are very good teachers are being held back needing to "wait" for their experience to catch up with their teaching quality. The inverse is also true when previously good teachers run out of energy and become worksheet junkies yet still get paid for their years of experience. IMHO, the unions protect this system which disincentives bad teachers from leaving the systems and good teachers from staying.

 

[Larry T Spider]

I agree that the current system of teacher pay is a problem, but I wouldn't blame it on the unions. Non-union states such as texas have the same system. We lose 50% of our teachers in the first five years of their career. Some leave because they are terrible at the job and figure it out pretty quick. Others leave because the pay sucks and they have better options elsewhere. I started at 40k which isn't bad at all right out of college, but making less than 45k after 8 years when all of your friends are passing you up big time is a beating.

Part of the reason that almost every state uses the same system is because there aren't really any other good options. You can make it based on test scores but that creates a whole host of unintended consequences that aren't worth going into in this thread. That's why people talk about it but rarely actually follow through. My theory is that the base pay should suck but that teachers that take on extra duties should be paid for that in a way that more than makes up for it. You can do the bare minimum assuming you aren't bad at the actual teaching part, but you will be paid accordingly. You can take on extra responsibility, lead committees, get advanced degrees, etc and be rewarded for it. In our current system, getting a masters gets you less than 100/month raise. Being a team leader gets you less than 40/month raise. Where is the financial incentive to do more?

 

[Seattle Husker]

As you said, we could talk forever on this topic but that's for another thread. Somehow we need to re-incentivize our entire education system.

 

[Mr. Deez]

I'm guessing "freeloaders" as you described are as prevalent as unicorns.

According to the BLS (http://www.bls.gov/news.release/union2.nr0.htm), there are 16.2 million workers represented by a union and 14.6 million union members. That's about 1.6 million workers or around 10 percent of workers represented by unions. If there are 1.6 million unicorns, they're doing a good job of hiding.