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State laws permitted by section 14(b) of the tafthartley act that 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.