Saturday, September 7, 2013

Hawaii is not a "Right to Work" State

Hawaii is not Wisconsin. No kidding. It's not Michigan either. But in his State of the State address earlier this year, Gov. Neil Abercrombie had to assure us of these obvious facts.
He was talking about organized labor. The governor assured us that although he "is not going to abandon collective bargaining," he won't let labor unions "bankrupt the future for all by buying some temporary solution that does not address the fundamental fiscal issues we cannot escape."
Last winter, workers came out in droves in Michigan, braving the cold to storm the Capitol in Lansing and oppose what they called a legislative hammer to the labor movement. And Wisconsin was the site of a possible resurgence of the labor movement.
But they could not stop their legislatures and governors from passing another "right-to-work" law in this country. Michigan was the latest battleground in an effort to curtail union-dominated workplaces. Twenty-four states have passed these right-to-work laws.
So what exactly is a right-to-work law? Why is it even called that? The actual laws are all a little bit different, but the bottom line is that the law prevents a labor union and the employer from creating a workplace in which every employee is required to join a union or pay fees equivalent to union dues as a condition of employment. In other words, being in a union is not required to work. Hence the name, a right to work (without having to pay union dues).
On the other hand, the term is kind of a misnomer. It doesn't establish a right to work at all. It deprives the other dues-paying union members from their right to have a union. If an employee could have all of the benefits of being in a union shop - like a grievance procedure, arbitration of employer actions and guaranteed wages - without having to pay union dues, how many employees would dutifully pay union dues? None, say the opponents of these laws.
Without money from union dues, the union has no money to hire lawyers to represent workers in grievances and in contract negotiations. They wouldn't have the funds for walkouts, strikes or other kinds of action. In short, the union is stretched thin. Its resources dry up and it withers on the vine.
Hawaii has never passed this law. Far from it. Hawaii has a strong unionized workforce and the majority of political leaders are pro-union. And given the governor's speech, it doesn't seem like the state will join the other 24 anytime soon.
What if our governor did want to join Michigan and Wisconsin? What if the Maui County Council or the mayor wanted to? Could we become a right-to-work state? Or even a right-to-work county?
Probably not. If the state or county had the political will and wherewithal to pass such a law, the unions who have closed shops - such as the HGEA, HSTA and ILWU - would have something their Midwestern counterparts didn't have: the Hawaii Constitution.
The state constitution guarantees - right along with the freedom of speech and the right to privacy - the workers' right to organize. This protection has been part of our state constitution since 1978.
Would a right-to-work law be considered an infringement on a right to organize? A court would have to decide that. And in doing so, it would have to examine our constitutional right to organize.
Maybe it is constitutional. Perhaps the right to organize could be narrowly construed so that it would only protect workers in assembling and forming a union in the first place. That would mean that the law could prevent unions and employers from requiring the payment of dues from workers who choose to opt out. It would not infringe on the right to form the union and keep the union there in the first place.
Then again, the law could be unconstitutional. The right to organize - like the similar freedom of assembly - certainly includes something more than simply getting together and forming a union. It encompasses the right to negotiate and settle the terms of the employment from the employer, which would include the payment of dues in a union shop. The right to organize would be meaningless if it did not include this protection.
Who decides this question? First, a trial court would have to rule and the loser would almost certainly appeal to the highest and most authoritative interpreter of the Hawaii Constitution - the Hawaii Supreme Court. So in Hawaii at least, if the right-to-work law was miraculously passed by the Legislature and, even more incredibly, approved by the governor, the last word, then, would come from the courts.
So when the governor says that his administration is not going to abandon collective bargaining, that's great news, but it's certainly not newsworthy. He probably can't.

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