For employers with unions returning to work is further complicated by the needs of CBAs and the NLRA. LaborSoft breaks down what unions and HR need...
The Right to Work vs. Union Security Agreements: What HR Needs to Know
Union Security Agreements can require workers to join or pay for unions. Right to Work laws have made this practice illegal in certain U.S. states.
The international human rights concept of the “right to work” is different from the more specific concept of U.S. “right to work” laws, which are a direct legal response to union security agreements.
What Are Union Security Agreements?
A Union Security Agreement is a clause within a collective bargaining agreement (CBA) that makes employment conditional on supporting a union. Essentially, it’s a deal between a labor union and an employer requiring all employees to become union members or pay fees to the union in order to get hired or retain their employment status.
These often controversial clauses are designed to increase unions’ financial strength, prevent “free riding” workers from enjoying the fruits of union bargaining without supporting the effort, and protect unions from employer discrimination.
Currently, the law prohibits employers from forcing workers to be union members. However, the NLRA has ruled that employers are still able to require non-union employees to pay “fair share fees” (dues or dues equivalents) to the union as a condition of employment without compelling membership in the union. Some states also have “Right to Work” laws that make it illegal to force employees to pay such fees.
What Are Right to Work Laws?
Right to Work laws (RTW laws) are local state laws that make it illegal to require workers to join a union or pay for union activities. Workers may still unionize, join unions, or pay dues — it just can’t be compulsory. This effectively bans most forms of Union Security Agreements in Right to Work states.
Advocates of RTW laws argue that they protect workers’ freedom, allowing them to opt out of unions without risking job loss or employer/union retaliation (in the same way labor laws guarantee the freedom to join unions without these consequences). The laws are also said to protect the workers’ free speech since they are no longer required to financially support politically-affiliated unions with which they disagree.
Opponents of RTW laws say they allow workers to benefit from union efforts without paying, creating an unfair “free riding” situation. Critics also argue that such laws make it difficult for unions to afford the high costs of union formation and collective bargaining, infringing on the right to organize.
Right to Work vs Union Security Agreements
The National Labor Relations Act of 1935, also known as the Wagner Act, was written to guarantee employees “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 concerted activities for the purpose of collective bargaining or other mutual aid and protection.”
Under the Wagner Act, the NLRA originally permitted four main forms of union security:
- Closed Shop: The employer will only hire union members.
- Union Shop: The employer may hire anyone, but non-union employees must join the union within a certain period of time (e.g. 30 days).
- Agency Shop: The employer may hire anyone, regardless of union membership status. However, non-union employees will be required to pay the union an “agency fee” to cover the cost of collective bargaining.
- Maintenance of Membership: The employer may hire anyone. No one is required to join the union or pay dues or fees. However, if any employee voluntarily joins the union, they may not resign their membership as long as an existing CBA contract is in effect.
The Taft-Hartley Act of 1947 made it illegal for employers to have a “closed shop” agreement and gave individual states the right to further outlaw “union shops” and “agency shops” (creating “right to work” states). View this map to see all Right to Work states as of December 2023. Note that Michigan has passed legislation that will soon repeal the state’s Right to Work law.
In June of 2018, the U.S. Supreme Court ruled in favor of employees in a landmark labor law case, ultimately finding that governments violate the First Amendment when they require public employees to pay fees to unions as a condition of employment. The ruling says that "States and public-sector unions may no longer extract agency fees from nonconsenting employees." Essentially, the public sector is now Right to Work and cannot have closed, union, or agency shops.
How Do Right to Work Laws Diminish Union Power?
RTW laws weaken unions because they can no longer compel membership or financial support, effectively diminishing union power and control — while empowering workers to make their own decisions. They also create a workplace that provides the benefits and services associated with unionization to both union and non-union members, but without requiring all beneficiaries “pay their fair share.” Note that workers in Right to Work states can file grievances if they’re required to join unions or pay for unions.
If you could use assistance keeping your labor documents and processes organized, contact the LaborSoft team today and book a free demonstration of our comprehensive labor relations case management software.