South Dakotans will vote next Tuesday on an initiative known as Measure 23. However, few voters know that it would repeal right-to-work. Nothing in its ballot description explains this fact. But if it passes, South Dakota unions could force workers to pay union dues.
On its surface, Measure 23 seems innocuous. Its description reads: “Notwithstanding any other provisions of law, an organization, corporate or nonprofit, has the right to charge a fee for any service provided by the organization.” Who would oppose that?
The ballot does not explain that unions can currently force their representation on workers. Measure 23 means unions could also force those workers to pay dues — effectively ending right-to-work in the Mount Rushmore state. Nonetheless, hardly anyone reading the initiative will understand that. So Measure 23 could easily pass.
The problem stems from the National Labor Relations Act (NLRA), which allows private-sector unions to become “exclusive bargaining representatives.” Exclusive representation means the union bargains on behalf of every worker. Individuals cannot negotiate for themselves. They must accept the union contract — whether they like it or not.
Many workers don’t like union contracts. Newer workers generally oppose seniority systems. Union contracts usually eschew performance-based pay; a fact which often grates on high-performers. Under exclusive representation, it does not matter. Workers who don’t like the union contract must either live with it, or quit. They cannot negotiate different terms for themselves.
Unions invariably use this power to force workers to pay union dues. Their contracts make paying union dues a condition of employment. So not only do new hires and high performers have to accept contracts that hurt them, they have to pay for them. Many workers consider this unfair.
To reduce this unfairness, 26 states — including South Dakota — passed right-to-work laws. These laws prohibit compulsory dues clauses. Unions in right-to-work states can still bargain exclusively, but they cannot force workers to pay dues. About 20 percent of unionized workers in right-to-work states opt out — primarily the workers disadvantaged by union contracts.
Unions call these workers “free riders.” They argue that these workers get all the benefits of union representation but do not pay for it. They contend that if federal law makes them exclusive representatives, they should get to charge non-members for their services.
This argument is disingenuous: Unions voluntarily represent non-members. The Supreme Court has repeatedly ruled the NLRA’s protections are “not limited to labor organizations which are entitled to recognition as exclusive bargaining agents of employees. . . . ‘Members only’ contracts have long been recognized.” If unions do not want to represent non-members, they do not have to.
Exclusive representation allows unions to force the workers their contracts hurt to accept them anyway.
Unions choose exclusive representation because it increases their power. For example, seniority-based layoff systems would collapse if new hires could opt out. Exclusive representation allows unions to force the workers their contracts hurt to accept them anyway. Those workers are forced riders, not free riders.
If Measure 23 passes, South Dakota unions can force non-members to accept their services, and then force them to pay for it. While that seems unreasonable, few South Dakotan voters are aware of this specific consequence. The question on the ballot — allowing groups to “charge a fee for any service provided by the organization” — sounds fair. The Left has poured $600,000 into the ballot committee “South Dakotans for Fairness” pushing the initiative.
Fortunately, there is a straightforward fix for this initiative chicanery. Measure 23 is an ordinary initiative. If it passes, the South Dakota legislature can pass a bill slightly tweaking the section of state code it modifies. The legislature would simply need to add language further stating “Provided that no labor organization may compel payment for services that state or federal law requires an individual to receive from that organization.”
This tweak would restore right-to-work while preserving the spirit of Measure 23. It might be fair for organizations to charge for services — but not when they force those services on unwilling workers. It’s highly unlikely unions could win a ballot fight over compulsory dues for unwanted representation. If Measure 23 passes, the South Dakota legislature can still preserve right-to-work.