Will a Failed ‘Right to Work’ Referendum Ignite a New Labor Movement?

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On Tuesday, Aug. 7, voters in Missouri soundly defeated a referendum a right-to-work statute passed by the state legislature and signed by then-Gov. Eric Greitens in 2017. The margin was not close: “no” votes topped “yes,” 937,241 to 452,075, according to state officials.

In the wake of the Supreme Court’s recent Janus v. AFSCME District Council 31 case, labor experts are weighing in on what the Missouri vote may portend for unions, both public and private. University of Baltimore School of Law Prof. Michael Hayes, a nationally recognized labor-law expert, says the vote may represent something significant in the public’s understanding of workers’ rights. He responded to a few questions about the referendum:

You described what is happening in the post-Janus environment as a “tug of war,” and the outcome of Missouri’s voter referendum on a proposed “right-to-work” statute shows that both sides have leverage, perhaps in spite or because of the Janus ruling. First of all, do you agree with some analysts that Missouri is a turnaround moment for organized labor?

Prof. Hayes: The results show that the “tug of war” continues and like most who care about employee rights in the workplace, I hope this is a turnaround moment for organized labor. Ever since a few years ago, when the U.S. Supreme Court announced it would consider the issue in Janus about union fees, the unions have been preparing for the decision that came. That preparation is a key explanation for the result in Missouri.

Are there other referenda happening in other states and locales that essentially ask the same question of voters? If so, where? What do they seek to resolve?

Prof. Hayes: This referendum was supposed to be voted on in November, but the Republican-controlled state legislature changed the date. I don’t know of any other similar referenda pending, but given state laws on referenda around the country, it’s not impossible some questions on union dues and fees could be on the ballot then.

How do you account for the lopsided loss of this referendum in Missouri—a conservative state where you might not expect unions to be much of a factor? Is this just classic overreach?

Prof. Hayes: I’ve spent a lot of time in Missouri and I believe that it’s not as “conservative,” at least on workplace rights, as some observers have said, or hoped. When this issue was focused on, and it was made clear what was at stake, Missouri voters understood not only what was in their interests, but what was the right thing to do. I believe the same would be true in numerous other states that President Trump won in the 2016 election.

Whether the Missouri vote amounts to much in the national conversation about the future of organized labor, where do you think this issue moves next? In other words, if the topic finds itself on ballots in various states, is that likely to lead to a different outcome than if it were handled legislatively or through the courts?

Prof. Hayes: It will be interesting to see what politicians, both federal and state, do on this issue. Anti-union forces would like Congress to take it up: Will Members of Congress do so and will Congressional candidates raise it as an issue? On the state level, if elected officials don’t revisit the issue, I do expect future ballot initiatives to bring it before the voters.

In the largest sense, what “solves” the big issues that accompany organized labor, public or private? Or, is it better to think of these issues as simply being an outcome of politics—more about the whims of the day than about tenets that are enshrined in federal law and tested by the courts?

Prof. Hayes: Like the dissenting Supreme Court Justices in Janus, I think it’s unfortunate that for government employees this issue has been taken out of the hands of voters and their elected representatives and made into a new Constitutional right. And like those dissenters, I think this is part of a recent and disturbing trend of unelected federal judges voiding decisions made by voters and/or the legislators whom voters have chosen. If that trend continues, in labor/employment law and elsewhere, it will harm our country’s representative democracy and make U.S. voters increasingly unhappy with their government.

Learn more about Prof. Hayes.

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