Labor at the Legislature

In early January, evidence of an impending legislative debate arrived in the mailboxes of citizens across Montana. The letters were branded as an “actiongram” from Montana Citizens for Right to Work and called on recipients to help “free Montana workers from the shackles of compulsory unionism.” Included were sets of pre-addressed postcards for leading lawmakers and Gov. Greg Gianforte, as well as a plug for financial contributions to the group.

Now the showdown those mailers forecasted is under way, with two bills targeting Montana union laws already winding their way through the Legislature and one more slated for a committee debut this week. With Republicans now in control of both the Legislature and the governor’s office, “right-to-work” proponents are optimistic that their movement will finally achieve the changes they’ve sought for more than a decade. Labor leaders and their allies, conversely, have redoubled their efforts to fight an agenda that has already taken hold in 27 states, forming a coalition called Montana Unified that includes nurses, first responders, educators and construction workers.

“Especially in these uncertain times, Montana’s lawmakers should be standing up for working families, not out-of-state corporate interests,” Montana Unified spokesman Brandon DeMars said in announcing the coalition’s formation last month. “We’re coming together to make clear this kind of corporate influence has no place in Montana.”

This particular movement has been at the center of several controversial chapters in recent Montana history. Right-to-work groups were connected to a massive political corruption scandal that spanned Republican primaries in the 2008, 2010 and 2012 election cycles. And Montana Citizens for Right to Work was the subject of a 2018 campaign practice complaint involving allegations that it was actively recruiting primary candidates to challenge a Republican lawmaker without registering its political activity with the state. Montana Citizens for Right to Work did file as an incidental political committee during the 2020 cycle and disclosed spending nearly $36,400 on mailers reporting the results of candidate surveys.

That right-to-work has again surfaced in the Legislature despite the movement’s checkered past is a disappointment for Montana Federation of Public Employees President Amanda Curtis.

“Frankly, I had more faith in Montana voters, and I think that we didn’t take them as seriously as a whole in Montana as we all needed to,” Curtis said. “I hope it’s not too late for us all to start paying attention to these bad actors.”

At least initially, the proposals driving the debate have centered on organized labor in the public sector. Senate Bill 89, sponsored by Sen. Keith Regier, R-Whitefish, seeks to prohibit public employers from deducting union dues from an employee’s paycheck. It passed out of the Senate State Administration Committee on a straight party-line vote Feb. 3. And House Bill 168, carried by Rep. Bill Mercer, R-Billings, would require state and local employees to sign consent agreements with their public employers indicating their desire for union membership. 

“You’ve got to decide … whether we have a constitutional obligation to do this,” Mercer told the House Business and Labor Committee Jan. 22. “Let’s assume you don’t think we have a constitutional obligation to do this. Then you’ve got to decide, is this just good public policy? Why would we be against the idea that we would ensure that government employers provided information to their employees about what their rights are to ensure the employees knowingly exercise the rights that they have?”

The bill drew considerable opposition during a committee hearing last month from union leaders and rank-and-file members, with several maintaining that requiring public employers to get annual consent from all union members would create a bureaucratic headache. Aaron Meaders, president of the Federation of State Prison Employees, testified that the requirement was “unreal and not possible.” 

Starting this week, the discussion over labor legislation will begin to spill into the private sector. House Bill 251 is scheduled for its first hearing in the House Business and Labor Committee on Feb. 16. The measure, carried by Rep. Caleb Hinkle, R-Belgrade, would broadly implement so-called right-to-work provisions across the state. Those provisions include requiring employers to get individual consent to deduct union fees from paychecks and to post “employee freedom of choice” messaging in workplaces informing employees that they cannot be discharged or discriminated against for refusing to join a union. The language of HB 251, as well as that of SB 89 and HB 168, is notably similar to a model Right to Work Act created and promoted by the conservative nonprofit American Legislative Exchange Council. 

A bill similar to SB 89, requested by Rep. Amy Regier, R-Kalispell, would require nonprofit and health care facility employers to obtain express consent from employees to deduct union dues from their wages. The bill is being drafted.

Mercer and Sen. Regier have largely credited their involvement in this debate to the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME, which ruled that public sector employees are not required to pay union fees to cover collective bargaining costs — even if they benefit from the outcome of that bargaining. Both Montana lawmakers frame their bills as an attempt to codify that ruling and bring the state in line with legal precedent. Curtis and other union leaders have countered that the current scope of legislative efforts extends far beyond the court’s ruling by threatening exclusive representation, meddling in relationships between unions and employers and ignoring that employees already have the option to not join a union.

So far this session, the only non-lawmaker voice to speak in favor of these measures is the conservative policy group Americans for Prosperity. David Herbst, AFP’s state director in Montana, said the economic impacts of the pandemic make 2021 a particularly ripe time for a legislative discussion on right-to-work. He believes the public sector-focused bills will perhaps have an easier chance of passing than Hinkle’s full-on implementation of right-to-work, but he’s keen to find out how far this particular Legislature is willing to pursue this particular agenda.

“The Legislature doesn’t typically like to take big bites,” Herbst told Montana Free Press. “On the other side of it, we’ve got a Legislature that I think should be tested to see if they want to bring this. You have to ask, is the Legislature committed to a rapid economic growth plan? And, you know, studies suggest that right-to-work could be a key component of that. And on top of that, are they committed to the principle of free association?”

The claim that laws restricting unions can help spur economic growth was directly challenged by a study released this month by the Illinois Economic Policy Institute. In an examination of various economic and social metrics, the study concluded that states with strong collective bargaining outperform states with right-to-work laws on the books. For Montana, that outperformance equated to more than double the average wage growth, lower auto loan and credit card delinquency rates and 4% fewer households on food stamps than right-to-work states. Civic engagement was also higher in Montana, with 9% more of the adult population voting in the 2018 midterm election and nearly 10% more of the population reporting that they’d contacted an elected official.

Overall, study co-author and ILEPI Policy Director Frank Manzo said, the findings appear to indicate that right-to-work legislation can impact not only a state’s economy, but the health and well-being of its workers as well, up to and including deaths related to substance abuse and suicide.

“That’s the linkage we think we see essentially in this study,” Manzo told MTFP, “is that states with collective-bargaining freedom laws have more good jobs with family-supporting incomes and higher retirement coverage that provide financial security both during and after a resident’s working years, reducing financial stressors that can contribute to high risk of mortality that goes from heart disease all the way to these unfortunate ‘deaths of despair.’”

Study co-author Robert Bruno, director of the Project for Middle Class Renewal at the University of Illinois at Urbana-Champaign, wonders if one reason for higher life expectancy in collective bargaining states might be the result of unions promoting worker wellness agreements and drug intervention programs. It’s a narrower question he said he’s interested in digging deeper into. As for the latest study, Bruno explained that the duo’s definition of a right-to-work state wasn’t exclusive to broad-reaching laws such as the one proposed by Hinkle. Restrictions around collective bargaining don’t have to be as sweeping and draconian as in Wisconsin, he said, to have a detrimental effect on workers.

“Where you find a political alignment that supports right-to-work, you almost always find a political alignment that’s anti-worker, meaning that they’re going to reduce labor protections,” Bruno said. “Very often they’ll start in the public sector and then move to the private sector, but it’s pretty uncommon that you will be in a right-to-work state but then find other robust labor protections left unamended.”

Whether Montana joins the ranks of America’s 27 other right-to-work states or maintains its historic tradition of embracing organized labor comes down to which of two arguments in 2021 is more convincing. 

There’s the purported intent to fold the Supreme Court’s Janus v. AFSCME decision into state law, and the Americans for Prosperity vision of what Herbst calls “free association” at a time of economic uncertainty. 

“In a situation where we’re struggling to recover from the COVID-19 pandemic, right-to-work could be a critical component to recovery and to coming back with more jobs, higher income and a more prosperous Montana,” Herbst said.

And there’s the desire to fight against policies that would create obstacles to union membership and deprive workers of a voice in the workplace. 

Based on his decades of experience, Al Ekblad, executive secretary of the Montana AFL-CIO, doesn’t see the current slate of right-to-work bills going far, particularly given their lack of any apparent grassroots support. But if they do, his organization and the labor movement as a whole will continue pushing back.

“We’re going to try to kill these bills working with people from both parties, and if that doesn’t work, if the bills go to the other chamber … we will certainly ramp up our education and response through social media and paid media,” Ekblad said. “And then, if bills pass that are unconstitutional, we’ll go to the Supreme Court and plead our case there.”