Federal Law > Unions > Right To Work

Right To Work


"Right to work" is a common phrase in employment relations. It has its origin in the relationship between unions and employers. Essentially, it concerns the rights of employees to choose to become members of unions and/or to contribute union dues promotive of union activities. In order to understand the respective rights of employers and employees in the "right to work" area, some additional background discussion is helpful.

Federal labor law. The National Labor Relations Act, enacted in 1947, defines the essential rights of employers and employees concerning union representation. Under Section 7 of the Act, employees have the following primary rights:

". . . the right to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . ."

Once a majority of employees in an appropriate unit have selected a union as their bargaining representative, the relationship between the employer and the employees changes. Unions are businesses. In order to run their businesses effectively, unions need to collect union dues to remain economically viable. As a consequence, union security arrangements, (agreements through which unions collect dues,) are of critical importance in the now "three-way relationship" between employers, unions, and employees.

Union security agreements. Federal labor legislation permits a variety of "union security" agreements. Union security agreements are contracts through which unions can demand dues payments even from employees who are not interested in becoming union members. Federal law permits unions to collect union dues under a variety of circumstances in order to prevent "free loaders" from reaping the benefits of union representation while not paying dues for the union's assistance. However, even where federal law may allow a union to force union membership or dues payments, state "right to work" laws can restrict a union's efforts to demand union membership from employees.

Union shop. The most stringent form of union security agreement allowed under federal law is the union shop. Under this agreement, employees must join a union once they begin employment or within thirty (30) days after the effective date of the union contract, whichever is later. Union shop agreements require two elements:

1. The union may not discriminate against eligible employees for membership although the union can define its own rules of eligibility for its members.

2. The union must represent a majority of the employees in the bargaining unit.

Maintenance of membership. Under federal law, an employer and a union may enter into a "maintenance of membership" clause which requires that all employees who are union members or who become union members remain in good standing. To maintain their good standing, those union members must continue to pay union dues.

Agency shop. Under an agency shop arrangement, employees are not required to join the union but they must pay the union "support money" in order to reimburse the union for the costs of administration of the contract. The aforementioned union security arrangements are the most typical contract provisions permitted under federal law for unions to obtain some "security" for the payment of union dues and fees.

"Right to Work" state laws. States are permitted under Section 14(b) of the Taft Hartley Act to adopt union security laws which are more restrictive than federal law. As an example, states can ban contract clauses which create union shops or agency shops between employers and unions in their states. In this instance, federal law will not supersede more restrictive state law. Among those states which have laws or constitutional requirements prohibiting union security arrangements are the following:

Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.

With the exceptions of Arizona, Florida, Kansas, Nevada, North Dakota, South Dakota, and Texas, the above-named states outlaw agency shop arrangements because they specifically forbid the exaction of union fees from persons who are not members of unions.

In the states not listed above, employers and unions are not prohibited from more restrictive union security contract clauses. However, even many states which do not have "right to work" laws still impose some restrictive provisions upon how unions seek dues and fees from employees within the bargaining unit. An employer is well advised to seek the assistance of competent counsel in analyzing the relationship between federal and state law in order to determine an employer's obligations concerning union security arrangements within your state. Not only can an employer's pocket book and relationships with its employees be dramatically altered by "union security"contract clauses, but employees often times take a very independent and strong stance on the issue of their obligation to pay union dues, particularly if it is their preference not to join the union.

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