State laws permitted by section 14(b) of thetafthartley actthat provide in general that employees are not required to join a union as a condition of getting or retaining a job.
Right-to-work laws forbid unions and employers to enter into agreements requiring employees to join a union and pay dues and fees to it in order to get or keep a job. Twenty-one states, mostly in the South and West, have right-to-work laws.
The ability of states to pass right-to-work laws was authorized by the Taft-Hartley Act of 1947, also known as the labor management relations act (29 U.S.C.A. § 141 et seq.). Taft-Hartley, which sought to curtail union power in the workplace, amended the National Labor Relations Act (NLRA) of 1935 (29 U.S.C.A. § 151 et seq.). The NLRA as first passed preempted state regulation of labor relations in interstate commerce, with the goal of developing a national labor law. Taft-Hartley departed from this goal in section 14(b) (29 U.S.C.A. § 164[b]), expressly authorizing the states to adopt right-to-work measures. Organized labor has tried repeatedly, without success, to secure the repeal of section 14(b). The Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.) prevents the application of state right-to-work laws to the railroad and airline industries.
Section 14(b) works with other provisions of Taft-Hartley to limit the ability of unions to mandate compulsory union membership. Sections 8(a)(3) and 8(b)(2) prohibit a type of union security clause (a provision that describes the obligations of employees to support the union) from being inserted into a collective bargaining agreement. A closed shop clause obligates the employer to hire only union members and to discharge any employee who drops union membership. The closed shop is forbidden under Taft-Hartley.
Although the act permits the union shop, section 14(b) allows the states to prohibit it. A union shop clause requires an employee to become a member of the union in order to retain a job, although no one needs to be a member in order to be hired; every newly hired person has a prescribed period of time to become a member.
Section 14(b) also allows states to prohibit the agency shop. An agency shop clause requires every company employee to pay to the union an amount equal to the union's customary initiation fees and monthly dues. It does not require the employee to become a formal member of the union, be a member before being hired, take an oath of obligation, or observe any internal rules and regulations of the union except with regard to dues. The U.S. Supreme Court, in National Labor Relations Board v. General Motors Corp., 373 U.S. 734, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963), held that an employer does not violate the NLRA by agreeing to include an agency shop clause in a bargaining agreement.
Therefore, when a state passes a right-to-work law, it prohibits both mandatory union membership and initiation fees and dues obligations of agency shops, and permits employees who do not voluntarily pay dues and initiation fees to receive the benefits the union provides. Unions call such people "free riders."
Right-to-work advocates argue that no person should be forced to become a union member or to provide financial support for a labor organization as a condition of employment. Such compulsion is said to be contrary to the U.S. concept of individual rights and freedom of association. It is also alleged that compulsory unionism enables large labor organizations to exert excessive power in the workplace and in the political arena.
Organized labor believes that right-to-work laws allow free riders at the expense of their fellow workers. Opponents of these laws argue that everyone should pay a proportionate share of the costs of the union in negotiating contract benefits that will go to all. Unions also maintain that the real objective of right-to-work laws is to sow dissension among workers and thus weaken the labor movement.
The bitter controversy over right-to-work laws peaked in the 1950s, when almost every state legislature considered the issue. Some scholars suggest the importance of the issue has been exaggerated. Studies have indicated that where unions are well established, employees tend to enroll without regard to right-to-work statutes. Such laws may be more a symptom than a cause of union weakness in certain industries and geographical areas.
Hogler, Raymond L., and Robert LaJeunesse. 2002. "Oklahoma's Right To Work Initiative: Labor Policy and Political Ideology." Labor Law Journal 53 (fall): 109–21.
Hunter, Robert P. 2002. "The Effect of Right-To-Work Laws on Economic Development." Government Union Review 20 (summer): 27–30
Sumner, David G. 1984. "Plumbers and Pipefitters: The Need to Reinterpret the Scope of Compulsory Unionism." American University Law Review 33.
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
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.
RIGHT-TO-WORK LAWS first appeared in a significant number of states after Congress enacted the 1935 National Labor Relations Act, also known as the Wagner Act, and they remain on the books in roughly twenty states today. The "right" these laws enshrine is the nineteenth-century liberal individualist conception of freedom of contract between employer and employee. They protect the individual worker's freedom to refuse to join or to help support a union, including one chosen by fellow employees as their bargaining representative. Thus, from the perspective animating the Wagner Act, they aim to undercut collective labor agreements.
More specifically, right-to-work laws are aimed against union security provisions in collective labor contracts. Such provisions may require that the employer hire only union members, ensuring a so-called "closed shop," or they may require that newly hired workers join the union within a certain period. Or union security provisions may not require union membership: they may only demand that employees contribute their share to the union's costs of bargaining on workers' behalf. Also, they may provide that the employer shall deduct union dues or fees from workers' pay checks. State right-to-work laws typically outlaw all such arrangements. Florida and Arkansas pioneered this field of legislation in 1944; other Southern and prairie states soon followed. According to most students of labor relations in post–World War II America, right-to-work laws have helped thwart union organizing in these antiunion regions, particularly in industries and among social groups with no union traditions.
Union security provisions adorned collective labor agreements long before the Wagner Act, but the law lent them no support. Indeed, many state and federal courts declared that strikes to secure or preserve the closed or union shop were illegal. The Wagner Act declared a new national policy in support of unionism and collective bargaining. The act cleared away old antiunion, judge-made law. It not only protected the rights to organize and to strike; it also required employers to recognize and to bargain in good faith with unions freely chosen by a majority of employees. The Wagner Act also provided that union security agreements were legal and enforceable. Then, in 1947, with passage of the Taft-Hartley Act over President Harry Truman's veto, Congress reversed its course and outlawed the closed shop, while permitting the union shop, which requires only that employees become union members within thirty days of initial employment. More controversially, Taft-Hartley also permitted the states to go much further than Congress had gone. Taft-Hartley allowed the states to outlaw the union shop or any other form of union security agreement, which would otherwise be legal under national law. Thus, Taft-Hartley opened the way for the rash of post–World War II right-to-work laws.
Hardin, Patrick, et al. The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act. Washington D.C.: Bureau of National Affairs, 2002.
Millis, Harry A., and Emily Clark Brown. From the Wagner Act to Taft-Hartley. Chicago: University of Chicago Press, 1950.
Zieger, Robert. The CIO: 1935–1955. Chapel Hill: University of North Carolina Press, 1995.