Right-to-Work Laws

Background

The National Labor Relations Act as amended in 1947 allows states to enact right-to-work laws. The U.S. Department of Labor records show that at least 23 states have enacted right-to-work laws and state constitutional amendments: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming. The federal government is currently working on the National Right to Work Act, which would extend the right to refuse union membership to all states. Other states have not formally enacted such laws, but some of these have state codes or other legal language in state laws that identify and control union activities.

Right-to-work state statutes vary greatly in language, though all contain basic commonalities in the provision stating that union membership cannot be made a condition of employment; it is best for educators to consult with the attorneys for their school boards for specific requirements of their states of residence. Principally, the National Right to Work Act would repeal other federal labor laws that allowed dismissal of employees for failure to pay union dues or loss of union membership. Right to work is an important area of law, given the current growth in the number of teachers' unions and associations being formed.

Right to work specifically addresses the closed shop. In closed shops, employers are permitted to hire only union members to fill open positions. Right-to-work laws ban closed shops and require fair share, also known as agency shops, or open shops. Further, right-to-work laws afford employees the opportunity to withdraw from union membership at any time without fear of the loss of their jobs. Another provision required by the right-to-work law is fair and equal representation of employees regardless of membership status.

In contrast to closed shops, open shops do not limit employees hired to fill positions. The middle ground is fair share or agency shops. These require nonmembers to [Page 702]pay a fair share (agency fee) of the dues associated with negotiating salaries and benefits. The fair share or agency fee amount must be disclosed by the union when requested by an employee prior to payment. Unions must identify the portion of their dues used solely for the purpose of negotiating salary and benefits.

The Supreme Court ruled that the fair share or agency fee cannot be used for activities not related to negotiations of salaries and benefits (Chicago Teachers Union Local No. 1 v. Hudson, 1986). The Court found that the formula used by the union to calculate the fee was constitutionally inadequate. In Lehnen v. Ferris Faculty Association (1991), the Court clarified expenses that are chargeable to nonunion members as part of the fair share or agency fee. The Court most recently decided that it does not violate the First Amendment to require teacher unions to receive affirmative authorization from nonmembers before spending their agency shop fees for election related purposes (Davenport v. Washington Education Association, 2007).

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