Rights and Wrongs
State Right to Work Laws

Robert S. Giolito
Employment and Labor Law Attorney
Stanford, Fagan & Giolito L.L.C.
Atlanta, GA
(404) 897-1000

1. Introduction


This paper is intended to help local union officers and members understand the meaning and application of so-called “right to work” laws. There are so many myths and misconceptions about these laws that no single paper can attempt to address all of them, but I hope that this simple paper will answer as clearly as possible the most common questions. For more detailed explanations or specific problems, the inquirer should not hesitate to consult labor counsel.

2. Background


In the beginning, which is not that long ago, concerted labor activity by workers and craftpersons was considered an unlawful conspiracy in restraint of trade.Laissez faire economic principles and traditional concepts of property dominated the nation’s thinking and persuaded legislatures and courts to outlaw most labor activities which we take for granted today. While it was generally allowed that employees had the right to form unions and make contracts with employers, the employers had no duty to recognize or bargain with a union as representative of the employees. Most strikes, picketing, and boycotts, no matter how peacefully conducted, were declared illegal and criminal.While the rights of employees and union were severely restricted, there was little restraint placed upon employers. Employers had the absolute right to hire and fire; they could discriminate upon the basis of union membership, or for that matter, upon any other ground as well. In 1898, Congress passed a law prohibiting discrimination against union members in the railroad industry, but the law was declared unconsitutional by the U.S. Supreme Court in 1908. Non-discrimination laws passed by various states were also declared unconstitutional. On the other hand, courts upheld the “yellow dog contract” whereby employees agreed not to join any union as a condition of employment. Employers were also permitted to circulate “blacklists” of union members and to form and require employees to join company dominated unions which competed with legitimate unions.

It was not until the passage of the Railway Labor Act in 1926, and the New Deal labor legislation in the early 1930’s, the most important being the National Labor Relations Act of 1935, that things began to change. For the first time, the nation recognized the right of employees to form and join their own unions free of employer interference, and made it obligatory upon employers to recognize and bargain with unions selected by a majority of their employees. Passage of these laws came at the price of many lost lives and destroyed families in the often violent labor struggles that preceded them.


3. The National Labor Relations Act (NLRA) and the “Union Shop”


In passing the NLRA, Congress declared that national labor policy encouraged collective bargaining in order to avoid industrial warfare. To assist the formation of unions, Sec. 8(3) of the ofiginal Act premitted a closed or union shop agreement, whereby employees were required to join a union as a condition of employment. Predictably, union memebership, and unions’ bargaining strength, skyrocketed during the rest of the Depression Era and through World War II.The rise of “Big Labor” provoked a strong and ultimately victorious counter revolution on the part of employers. As soon as the Republican Party took command of Congress in the first post-war elections, they passed, over President Truman’s veto, the Taft-Hartley Act of 1947. The new law specifically guaranteed employees the right to refrain from union membership. The new Sec. 8(a)(3) prohibited the closed shop (which conditioned an employee’s hiring on union membership), while permitting the union shop (which required a newly-hired employee to join a union within 30 days). More importnatly, Taft-Hartley created the present Sec. 8(b), which outlawed certain union activities, including, in Sec. 8(b)(1)(A), a union’s coercing or interfering with employees’ rights to refrain from joining a union. Sec. 8(b)(2) also mad it unlawful for a union to cause an employer to discriminate against an employee becuase of that employee’s lack of union membership (other than because of the employee’s failure to pay required dues.) Sec. 8(b)(5) further prohibited unions from charging “excessive or discriminatory” initiation fees.

The most controversial of the Taft-Hartley revision, however, was contained in Sec. 14(b) of the Act which permitted the states to prohibit “agreements requireing membership in a labor organization as a condition of employment.” Under this clause, states were free to enact so-called “right to work” laws which prohibited the union shop otherwise permitted under Taft-Hartley. As a result, 21 states, including all of the Southern states, passed right to work laws.

In 1959, Congress passed Sec. 8(f) of the NLRA which permits “prehire” agreements in the construction industry. This provision allows an employer “engaged primarily” in the construction industry to make an agreement with a union which does not represent a majority of the employees. The agreement may provide that the employer will hire only those employees referred by the union. Sec. 8(f) also permits a 7-dy union shop in the construction industry (unless otherwise prohibited by a state’s right to work law.) As discussed below, prehire referral agreements, which prevail in the entertainment and maritime industries as well as construction, have become an increasingly important form of union security, particulary in right to work states.

4. State Right to Work Laws and the “Open Shop”


State right to work laws specifically grant employees the “right to work” without having to join a labor union, including a unin that has been selected by a majority of employees as their collective bargaining representative. In other words, in a right to work state, the unio shop is prohibited and replaced with the open shop. Membership in a union must be completely voluntary on the employee’s part.Most right to work laws also prohibit the so-called agency shop, whereby employees are required as a condition of employement either join a union or to pay it a fee for collective bargaining services in an amount that is more or less equivalent to union membership dues.

A typical right to work law contains language to the effect that no person shall be required to become or remain a member of a labor organization as a condition of employment. The law applies only to jobs within the state; it cannot apply jobs to offshore, or to jobs in exclusive federal enclaves within the state, such as military bases. The law is usually enforced by a private civil action for injunction and damages filed in the state court. In some states, such as South Carolina, a violation is also subject to criminal penalties, including imprisonment and fines.

Many right to work laws also contain prohibitions on other kinds of unionactivities; however, the U.S. Supreme Court has made it very dear that a state’s power to regulate labor agreements under Sec. 14(b) of Taft-Hartley is expressly limited to the “actual negotiation and execution” of a union shop agreement. Thus, for example, while a state may prohibit a union from making or enforcing a union shop agreement, it cannot enjoin the union’s strike or picketing to obtain such an agreement.

More importantly, the courts have held that a state’s right to work law cannot operate to prohibit hiring-hall or referral agreements otherwise privileged by the NLRA. In such cases, employees, including non-members, may be charged a fee for the union’s referral service. These very important limitations on right to work do not appear on the face of the statues themselves, and that is perhaps one of the reasons why these laws are so easily misconstrued.

In sum, a state’s right to work law can lawfully prohibit only the requirement of union membership as a condition of employment. It can reach no further than that.

5. Referral Agreements, Rosters, and Hiring Halls


As noted above, prehire agreements often contain a referral provision in which the employer agrees to obtain its employees from the union. Such agreements are common in the construction, entertainment, and maritime industries, all of which are characterized by the more or less temporary employment of employees for a specific task or project. Referral clauses also commonly appear in ordinary collective bargaining agreements where an employer may have need to hire additional employees, usually on a temporary or casual basis. Famous examples of referral systems include the “Hollywood roster” and the waterfront “shape-up.”A referral clause is not illegal under any state right to work law. This is true even though the referring union clearly controls the “gates” to the employer’s work site. This is because a state’s power under Sec. 14(b) can extend only to labor agreements which require union membership as a condition of employment. Thus, if a union’s referral service is non-discriminatory and is open to members and non-members alike, it will pass muster under any right to work law.

A union operating a legitimate referral service is entitled to charge non-members a fee. The fee should reflect the pro rata costs of providing the service. For members, the union can consider the fee to be part of union dues. Accordingly, the fee charged non-members should always be somewhat less than regular dues.

In making referrals to employers, a union may legitimately discriminate based upon the employee’s seniority, residency, qualificatioinis, and experience. It may not discriminate on the basis of union membership or activities (or on any other illegal ground, such as race or sex.) An exception exists in cases in which the unio is not the sole or exclusive source of the employer’s employees. In such case, where the union is only one of many possible sources of employees and the employer retains and exercises the right to hire “off the street,” the union would be entitled to refer only its members.

Referral agreements serve legitimate industry needs and can represent an important source of union security, particularly in right to work states. However, because a lawful referral system will require adoption and publications of clear referral rules, no union should attempt to establish one without consulting competent labor counsel.

6. Frequently Asked Questions about Right to Work


Can a union force an employer to hire only union members?

Not if the state has a right to work law. However, a union can negotiate a referral agreement in which the union serves as the exclusive source of the employer’s employees. In such case, the union must open its referral services to members and non-members alike. The union may charge non-members a reasonable fee covering the costs of its referral services.

If an employer calls the union for workers during a particular show or production, can the union limit its referrals to union members only?


Only if the union is not by agreement or practice the “exclusive source” of the employer’s employees. If the employer can and does hire off the street as well, then the union would be entitled to refer its members only.

Can a union sign a ‘members only’ agreement with an employer?


Yes, but only if the union has not been selected by employees to represent the entire bargaining unit. In such case, the union has a duty to represent all bargaining unit employees, not just union employees. A “members only” agreement will not serve as a contract bar to an election petition filed by a rival union. Such agreements may be problematic for other reasons and may implicate the antitrust laws.

Can a union restrict its members from working “non union” or order its members off a job?


Absolutely, provided the union has properly enacted such a rule and published it to its members. Recently, the IATSE won a lawsuit in South Carolina in which the Union had declared a non-union production “unfair” and had ordered its memebers to cease workings. The employer challenged the Union’s action under the state’s right to work law.

Can a union require its members to hire only other members?


Not in a right to work state. However, a union can lawfully require as a condition of union membership that its members only work with other members on any worksite.

Can union members for ‘financial core?’


Yes, but only in union shop states where employees are required to join a union within 30 days of employment. Under a U.S. Supreme Court decision, members in such states may elect to pay only that part of union dues related to collective bargaining services. In right to work states, the concept of “financial core” has no meaning since employees are not required to join a union as a condition of employment.

Can an employer or payroll service deduct dues from non-members?


Not unless the non-member has specifically authorized such deduction in writing, usually by signing a checkoff authorization card. Under federal law, any deduction of union dues without such authorization is illegal.