By James V. Thompson
New legislation in Tennessee’s General Assembly seeks to cement into public policy the state’s long-standing “Right to Work” laws. Senate Joint Resolution 648, introduced in early January 2020, would propose a new amendment in the Tennessee constitution, reading as follows:
It is unlawful for any person, corporation, association, or this state or its political subdivisions to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.
This language is already familiar in Tennessee’s jurisprudence. Tennessee already has an almost identical provision codified at Tennessee Code Annotate § 50-1-201. That statute has been unchanged since its adoption in 1947. Additional Tennessee statutes go even further. State law specifically prohibits employment contracts that discriminate based on a worker’s membership in, resignation from or refusal to join any labor unions or employee organizations (see Tenn. Code Ann. § 50-1-202), and also prohibit employment discrimination based on a workers’ payment or failure to pay dues, fees, or other charges to any labor unions or employee organizations (see Tenn. Code Ann. § 50-1-203). These statutes tend to promote workers’ (and employers’) rights over unions. These additional provisions were also enacted in 1947 and have remained unchanged since that time. By these measures, Tennessee law arguably was decades more advanced over the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME, which held a government employee’s free speech rights trumped a union’s right to assess and collect agency dues from employees who were non-union members.
So what makes this new action in Tennessee noteworthy?
First, the proposal would establish Tennessee as one of only a few states to adopt a constitutional amendment protecting employees’ right to work. Currently nine states have taken measures to include Right to Work language into their constitutions. For that matter, only 27 states even have Right to Work laws currently on their books. States began to enact these laws after passage of the Taft-Hartley Act in 1947, which amended the National Labor Relations Act to prohibit unions from engaging in “unfair labor practices,” such as jurisdictional strikes, solidarity or political strikes, and monetary donations by unions to federal political campaigns. The Right to Work laws banned exclusive union shops on the state level, giving employees further protection from employers who would hire only labor union members or require new employees to become union members.
Tennessee’s constitutional amendment proposal is also extraordinary in light of the three-step, multi-year process required to enact such amendment. Under Tennessee law, a constitutional amendment must be passed by a single majority of both the state’s House of Representatives and Senate in one of Tennessee’s two-year General Assembly sessions. Next, the same amendment must be passed by a two-thirds majority of both legislative bodies in a subsequent two-year General Assembly. The final step requires passage by a majority of voters in a statewide referendum. Thus, a constitutional amendment in Tennessee is neither lightly proposed nor easily completed. By the same turn, a constitutional amendment in Tennessee, once adopted, is not likely to be quickly or easily overturned.
Additionally, the proposed constitutional amendment would apply more broadly. Tennessee’s current Right to Work statute applies to “any person, firm, corporation or association.” A key addition in the proposed amendment is the state itself. Where the current statute omits state government, the amendment specifically includes the “state and its political subdivisions.” Were the amendment adopted, Right to Work protections would then apply to both private-sector businesses and state and local governments. While this may seem insignificant, recall that Janus v. AFSCME, the latest significant U.S. Supreme Court decision on Right to Work laws, specifically involved a government employee and a public employees’ union—not a private business.
The arduous task of amending Tennessee’s constitution also begs the question: why adopt a constitutional amendment for a law that has existed for over 70 years?
Tennessee’s proposed constitutional amendment comes at the same time the legislature in its neighbor state, Virginia, are debating whether to repeal its own Right to Work law. Notably, Virginia enacted its Right to Work law in 1947, the same year as Tennessee. Equally notable, Democrats recently assumed control of that state legislature. Tennessee’s legislature, in contrast, is solidly Republican: 28 of 33 state Senate seats and 73 of 99 state House seats. Illinois, meanwhile, has Democrats proposing a state constitutional amendment entirely opposite to Tennessee’s version—one which would prohibit Right to Work laws in Illinois. Based on these latest legislative actions, it appears clear that political ideology factors into today’s current Right to Work laws just as strongly as when a Republican-led Congress passed the Taft-Hartley Act over Democratic President Harry Truman’s veto in 1947.
Proponents of the Tennessee constitutional amendment tout the need to protect local workers’ rights, as well as opportunity for job growth in the state, on a more permanent basis. They view Right to Work laws as enticing to employers who may want either to relocate into Tennessee or to expand existing business operations in Tennessee. Tennessee’s Governor Bill Lee made news in 2019 for his public objections to unionization efforts by the United Auto Workers at the Chattanooga, Tennessee Volkswagen facility. Lee argued that the presence of labor unions in Tennessee would make it harder for the state to recruit other businesses and remain economically competitive. Workers at the Chattanooga facility voted against unionizing shortly after Lee’s visit. Business groups as well have voiced support for the Right to Work constitutional amendment. The Tennessee Chamber of Commerce has stated that 88% of its members, including both large and small businesses, support Right to Work protections in the constitutional amendment.
In contrast, opponents point to studies that suggest workers in Right to Work states make less money on average and are more likely to suffer from workplace fatalities than their counterparts in non-Right to Work states. They would rather focus on more immediate worker protections than laws centered on unionization. Opponents also argue that Right to Work laws effectively create “freeloaders,” workers who receive the benefits that unions offer, yet who do not themselves financially support unions and who cannot be fired for their lack of union support. U.S. Bureau of Labor Statistics data shows 10.3% of wage and salary workers in the U.S. (16.4 million) were union members in 2019. This percentage has decreased from 1983, when 10.3% of wage and salary workers in the U.S. (17.7 million) were union members. The decline in union membership, along with reinforced protections for non-union workers to reap union benefits without giving financial support, likely elevates the importance of Tennessee’s efforts to make Right to Work provisions a more permanent fixture in the state’s law.
The immediate effect of Tennessee’s proposed constitutional amendment on the state’s employers and workers is likely negligible. Private-sector businesses and workers are already covered by current Right to Work laws, and the Janus decision appears to provide similar protections for public-sector employees. However, Tennessee’s proposal, and potential adoption, of a Right to Work constitutional amendment likely fuels momentum for employers and conservative policymakers seeking to avoid entanglement with unions.
James V. Thompson, Attorney
Rainey, Kizer, Reviere & Bell, PLC
[email protected]
www.raineykizer.com