Open Shop

The term open shop refers to a business or organization wherein employees are not required to become union members as a precondition of employment. An open shop can be distinguished from a closed shop,

which refers to a business or organization wherein union membership is a precondition of employment. Historically, an open shop was a slogan adopted by American employees during the early 20th century as a means of attempting to drive unions out of the construction industry. Under the National Labor Relations Act (NLRA), open shops are deemed legal labor practices in the United States.

The passage of the Taft-Hartley Labor Act in 1947 officially declared closed shops illegal throughout the United States. The Taft-Hartley Labor Act specifically gave states the legal authority to create “right-to-work” laws while granting federal courts jurisdiction over the enforcement of collective bargaining agreements between employers and employees. In 1959, Wisconsin became the first state to legislate collective bargaining by public sector employees, including public school teachers. More than 30 states presently have legislation allowing public school teachers the right to unionize or collectively negotiate with school board authorities. At present, only a few states, most notably North Carolina, Texas, Utah, and Virginia, expressly prohibit teachers from collective bargaining with school district authorities.

In states with “right-to-work” laws, open shops are primarily viewed as the legal norm. Employers may not legally fire employees who fail or refuse to pay union dues. In states with open shops or right-to-work laws, since union membership is not required for jobs, employees can choose whether they want to be union members even if their employers are unionized. Currently, 22 states, mostly in the South (Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming), are deemed right-to-work states.

Proponents of open-shop or right-to-work laws argue that employees should be given the right to choose whether they wish to join unions. Moreover, open-shop advocates contend that it is wrong for unions to be legally able to force employees to either join unions or pay union dues or fair-share/agency fees as a condition of employment. Nationwide, 28 states permit unions to collect mandatory agency fees from their public employees, and 22 states disallow this practice.

In 1977, the U.S. Supreme Court dealt with the first of four cases involving the legal issue of agency shop fees as it applies to public sector unions' use of nonunion member fees for political purposes. In Abood v. Detroit Board of Education (1977), the Court held that the First Amendment explicitly prohibits public sector unions from using nonmembers' agency fees for ideological purposes not related to the union's collective bargaining duties and responsibilities.

The Court, in Chicago Teachers Union, Local No. 1 v. Hudson (1986), subsequently imposed the procedural requirement that public sector unions must inform nonmembers in open shops how much of their agency fees go to noncollective bargaining purposes and offer these nonmembers a refund in that amount. To be in compliance with the law, many public sector unions send what is commonly referred to as “Hudson” packets to all their nonmembers, informing them of their legal right to refuse the use of agency fees for noncollective-bargaining-related expenditures.

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