RIGHT-TO-WORK LAWS

Union security provisions in labor contracts have required membership in, or financial support of, the signatory union by employees, as a condition of employment by the signatory employer. Concern that such provisions could be used to restrict employment unduly, to penalize dissent, and to infringe on employees' associational interests, stimulated the enactment of state right-to-work laws. Such laws, now operative in approximately twenty states, prohibit conditioning of employment on union membership or, generally, on financial support of a union.

The taft-hartley act (1947) amended the National Labor Relations Act (NLRA) (1935) and imposed new restrictions on union security provisions, barring requirements of full-fledged union membership before or after employment and limiting compulsory membership to payment of uniform dues and initiation fees. Congress's approach appeared responsive to the argument that unions should be permitted, through collective bargaining, to secure financial support from all members of a bargaining unit, including those not members of the union, because the union's duty of fair representation encompasses all of them. Nonetheless, section 14(b), enacted by the Taft-Hartley Act, permitted states to prohibit union security provisions otherwise legal under the NLRA. This extraordinary deference to state labor law contrasts sharply with the preemption of more restrictive state laws by the 1951 Railway Labor Act amendments (now applicable to both airline and railway employees).

The Supreme Court, in Lincoln Federal Labor Union v. Northwestern Iron Metal Co. (1949) and a companion case, American Federation of Labor v. American Sash Co., upheld state right-to-work laws against challenges based on the contract clause and constitutional guarantees of freedom of speech, freedom of petition and assembly, equal protection, and due process of law. The Court, moreover, negated any equal protection requirement that state remedies for discrimination against union members and nonmembers, respectively, be coextensive. The Court wryly observed that the unions' due process contentions were a reversion to the doctrines of lochner v. new york (1905), adair v. united states (1908), and coppage v. kansas (1915), which the Court had discarded—after having used them to invalidate prohibitions of yellow dog contracts and other measures designed to protect workers' associational interests.

In Retail Clerks v. Schermerhorn (1963) the Supreme Court upheld state power "to enforce their laws restricting the execution and enforcement of union-security agreements." The Court, however, significantly limited state authority, stating that "[it] begins only with the actual negotiation and execution of the type of agreement described by ©14(b)." Consequently, under section 14(b), a state could not properly enjoin picketing for an agreement proscribed by state law. The Court did not explain the reasoning behind the apparent anomaly of permitting a state to prohibit a completed agreement but not economic pressure to secure it. The Court may, however, have feared that state authority over such antecedent pressures would too often be used to restrict activity protected by the NLRA, such as peaceful picketing that publicizes sub-standard working conditions.

Otherwise valid union security agreements raise questions under the first amendment when dissidents object to the use of compulsory financial exactions for political and other purposes not central to collective bargaining.

Bernard D. Meltzer
(1986)

Bibliography

Haggard, T. 1977 Compulsory Unionism, the NLRB and the Courts: A Legal Analysis of Union Security Agreements. Philadelphia: Industrial Research Unit, Wharton School, University of Pennsylvania.