As the November elections loom, debate around the proposed constitutional Amendment No. 1 is heating up. Proponents, which include the current governor, his predecessor, both of the state’s current U.S. senators and a coalition of statewide elected and business leaders, say this will strengthen the state’s long-standing right-to-work law by future-proofing it against court decisions or changing political winds.
Opponents, who have organized under an umbrella coalition called Vote No On One, say the amendment is overkill, and is about thwarting unions from entering or succeeding in the state’s various industry sectors.
The state’s current right-to-work law, which was passed in 1947, states that Tennessee workers can’t have any wages taken for union dues unless they agree for that to happen.
Amendment One backers say that, should the federal government via Congress, or the judiciary through a ruling, negate a right-to-work law in one state, it might nullify Tennessee’s. With that in mind, they propose Amendment One as a safeguard for workers – and say now is the right time to make this happen.
The ‘yes’ side: Keeping employees from being forced into political activity
“Four or five years ago, we had a couple of leaders in the General Assembly say they wanted to try to enshrine right to work in the state constitution,” says Jim Brown, Tennessee state director for the National Federation of Independent Business and a member of the state executive committee of Yes on 1, the pro-amendment advocacy group that formed after the amendment made its way through the legislature and qualified for the November ballot.
“A lot of people in the business community shrugged their shoulders since we have had the law around since 1947. But after doing some research, we found that in several states, like Virginia, there had been fights to undo their law, which is as old as ours.
“We also saw that in Indiana, a judge threw out their right-to-work law, although eventually their state supreme court tossed that decision. And the Pro Act, which has passed the U.S. House of Representatives twice, would eliminate 27 state-level right to work laws. That got our attention.”
Brown says the pro-One side sees right-to-work as allowing workers to have freedom of association, joining a union (or not) as they wish. He also bats away that this push is anti-union.
“This is about the freedom to choose,” he says. “There are bad employers out there, and there are good unions, as well. We get it. But why should I be forced to pay 3% to 5% of my paycheck if I don’t agree with the union’s political activity, or if I don’t think they’re doing a good job representing me?”
Brown also says he understands why Amendment One’s foes respond that not paying dues and benefiting from union activity is freeloading but rejects claims that right-to-work legislation, or this amendment, affect the state’s employment at will landscape.
“We think that argument is conflating the state’s employment-at-will doctrine with right-to-work legislation, even calling it ‘fire at will,’” he says. “They are not the same. You can leave a job, or an employer can let you go for any reason except those protected by law, such as discrimination.”
Opponents also say that right-to-work states pay lower wages, which Brown says flies in the face of statistics his group has posted saying that from June 2021 to June 2022, nonunion wages rose 5.8% while union wages climbed 3.8%. (In an Aug.22 op-ed piece in The Tennessean, Brown and fellow executive committee members Bradley Jackson and Justin Owen attributed the figures to “the official Bureau of Labor Statistics.”)
The ‘no’ side: A business wouldn’t provide free goods and services
The Vote No On One committee has marshaled its resources under Tennessee for All and, like its counterpart, is hitting the airwaves and holding events to make its argument.
The wage comparison, for example: Like most battles involving statistics, their side has numbers that rebut the other side’s argument.
“Wherever they got that statistic, I don’t know, because I’ve never seen anywhere that nonunion workers earn more than union workers,” says Jason Freeman, political director for Service Employees International Union Local 205, which represents members across the state. “Our numbers show that union workers almost always make $11,000 more per worker and have better benefits in states that don’t have right-to-work laws.”
Freeman says the anti-One side sees a state economy they feel is “already stacked against working people, and in favor of big corporations. In Minnesota, a state with similar demographics to Tennessee, families on average are earning about $24,000 more a year, and more of their jobs are union. When workers can organize and have a voice, families do better.”
And as to the argument that unionization requires forced participation, he says the current law prohibits that, and has done so for decades, making this amendment less about worker protections and more about undercutting union effectiveness.
It also, he says, forces the union to provide services for free, a requirement opponents might take issue with.
“Right to work means the union has to provide services for people who do not pay for them,” he says. “Do the businesses supporting this provide goods to people who don’t pay?
“No one is required to join a union in Tennessee, but you can be required to pay a service fee for receiving the benefits of a negotiated contract.
“That also entitles you to representation in things like grievance processes. The union is compelled to represent you, even if you do not pay dues.
“Would the Chamber of Commerce give me free admission to their events if I weren’t a dues-paying member? I suspect they would oppose being told they had to do that.”
The legal view: High threshold to enact – and remove
Constitutional tinkering by way of amendments doesn’t happen often in Tennessee, other states or at the national level. That’s because they have a high hurdle to getting into the ballot, usually involving multiple legislative sessions as an attempt to inoculate them against political whims, and usually require a large share of votes to become enacted.
Even so, amending the state constitution is no more nor less difficult than it is in most other states, says William C. Koch Jr., president and dean of the Nashville School of Law, who points out that once ratified, amendments are very hard to reverse.
“The purpose of Amendment One is to transform the long-standing ‘right to work’ statute into a constitutional right,” Koch says. “If Amendment One passes, it will be far more difficult to remove the “right to work” provisions from Tennessee law.”
Tennessee, like most other states, has two procedures for amending the Constitution, he says: By legislative resolution ratified by the voters and by constitutional convention with ratification by the voters.
“Once an amendment is ratified by the people, it becomes part of the constitution,” Koch explains. “It can be revoked only by amending the constitution to remove it using one of the two methods used [to ratify the amendment]. It is far more difficult to amend the constitution than it is to amend or repeal a statute.”