Last edited 18 Feb 2021

Right-to-work legislation and construction

In the United States, right-to-work legislation is introduced and enforced at state level and influences the ability of non-union workers to be able to work on trade union construction projects.

A cornerstone of American labour law is the Taft-Hartley Act 1947, which aimed to restore the balance of power between labour and management after the Wagner Act 1935 that had given certain advantages to trade unions. While it was not mandatory for a construction worker to join a union when they began work for a contractor on a project, they did have to pay ‘dues’ or agency fees to help cover the costs of negotiating, administration, and so on.

Right-to-work legislation is intended to secure the right of workers to choose whether or not to join or financially support a union, by making it illegal to coerce the payment of dues. The 1947 Act prohibited agreements between labour unions and employers by which they would seek to create union-only workplaces.

Typically, a project labor agreement (PLA) enables non-union workers to work on union-controlled construction projects, with the parties (usually project owner and trade union/s) agreeing working conditions, labour rates, benefits, and so on. Right-to-work laws mean that PLAs cannot limit project participation just to union contractors. Unions have to advocate on behalf of non-union member workers on the project as well.

This situation has proven controversial and non-members are often termed ‘free-riders’ – benefiting from the high labour rates, benefits and dispute resolution procedures negotiated through the collective bargaining process of the union, without paying dues. In right-to-work states, where unions negotiate with contractors on behalf of both members and non-members, the members are often required to pay increasingly higher dues to maintain their status.

Over the years, more and more states have passed right-to-work laws, which opponents have argued is a gradual erosion of hard-won union rights and responsibilities from employers. They argue that right-to-work laws weaken the negotiating position of trade unions in trying to improve work conditions and mean that wage levels and health and safety standards are lowered, and point to evidence that suggests that non-union construction sites are more dangerous than union sites.

Defenders of the right-to-work laws argue that they allow construction companies to choose the workforce without pressure being applied from unions to employ their, often more expensive, members. Being able to hire labour that is not affiliated with unions can be seen as a way of reducing project costs. There is also the argument that constitutional rights allow workers the right to freedom of association, enabling them to be a member of a union if they want to or not, and without having to pay dues in order to obtain union project work.

Another argument in favour of right-to-work is that they can actually increase labour productivity by increasing the accountability of the unions to their members.