The Law of Union Security Agreements
In this lesson, we will explain the differences between a closed-shop provision and union shop provision, agency shop provision, maintenance of membership provision, and dues check-off provision. You will be able to weigh the collective rights afforded by group strength and group goals versus individual rights and such concepts as voluntary unionism and individual choice. And lastly, we will distinguish the organization of a union in right-to-work and non-right-to-work states.
The area that I’d like to focus on, for purposes of our discussion, deals with the distinction between right-to-work states and non-right-to-work states and the practical issues that unions face in a right-to-work state. Now, as you’ve gleaned from the readings already, in a non-right-to-work state, ostensibly, employees are required to pay dues to the union, whether or not they’re happy with the union or if they even want to be a member of the union. In a right-to-work state, such as my home state of Arizona and in the other state that I practice, which is Texas, you are not compelled to be a member of the union, nor are you compelled to pay dues to the union.
Now the practical impact of that is that unions are going to be less forceful in those states because of money. One thing that unions are, just like all other entities or nonprofits– I do like the term nonprofit– is that the inflows have to equal the outflows from a business model standpoint. So you have to have as much coming in in dues and in revenue as you’re spending on union staff and on efforts to organize and overhead and expenses and electricity and the like. If you’re spending more on the overhead part than you are in receiving dues, the union is going to lose money. And it’s not a sustainable business model, for lack of a better word.
Now I can tell you that we represent a number of small unions in right-to-work states that are just large enough to collect dues and maybe pay for a union staff but are not have enough money to do much else than that. As a consequence, there becomes a point at which the numbers become so low that the quality of representation becomes very difficult for a small union to sustain in a right-to-work state.
Now, as we’ll learn in lesson 14, but as many of you have learned in other classes already, there has been efforts in recent years to pass federal legislation called EFCA, or the Employee Free Choice Act. Not to get too far into the weeds about EFCA, it has three major provisions, one of which dealt with Card Check. Under the Card Check provision of EFCA, if passed, unions could avoid having election, in the traditional sense that we have now under the National Labor Relations Act, and instead could collect cards. And if you had a sufficient number of cards signed by employees, the union would have to be recognized as the certified representative of the employees and thus have the obligation to bargain on behalf of the employees, and administer the contract, and pursue grievances, and the like.
Now candidly, as an attorney who practices in a right-to-work state, that was always the provision of EFCA which I thought was the least important, because it is quite conceivable, as a practical matter, that on a given day at work everybody gets mad at their boss. And they all decide to sign union authorization cards in a tizzy and turn them in. And then, all of a sudden, you have a union that’s in place that now represents all the employees.
However, things may calm down a few days later. And you end up with a situation where you now have a union. But maybe the people who signed the cards don’t want to pay dues. Thus, you have a situation– unions call it the free rider issue, which is you have a union that has these responsibilities and has these expenses. But the employees aren’t members and they’re not paying dues. And in a right-to-work state, that becomes a very big problem.
So that was always the provision of EFCA that I never thought was perhaps not even a very good idea from the standpoint of unions, but certainly for unions in right-to-work states was less important than the other two provisions of EFCA, in as much as in order to have a viable union in a right-to-work state, you have to have a solid core of people who are invested and are willing to pay dues. Maybe there’s a sufficient amount of peer pressure, not negative peer pressure, but real peer pressure, for people to pay dues in to the organization in order to keep it viable.
I can assure you, like where I practice, there are employers like that. You go to the major utilities. And you have all the lineman who are union members. There is peer pressure for people to pay dues and to be union members.
In the public sector, policemen, they pay union dues. It’s very difficult for a policeman to say, you know what, I’m not going to pay the union dues, when all of his colleagues are. And they all know who’s not paying. So it can be done. And it is being done in certain sectors.
But by and large, that is the critical part of a union in a right-to-work state, is to make sure you have sufficient interest in the people to actually pay dues to make it a viable union. If they are not interested in paying dues and being members, you neither have the financial wherewithal to have a correct union, and you certainly don’t have any leverage, as we talked about before, when it comes to negotiating a contract, if the employer knows that a very small percentage of the people are actually members. Thanks.
Indiana “The Right To Work For Less” State：
The man who is delivering the Republican response to the president’s State of the Union address is this guy– Republican governor from Indiana, Mitch Daniels. And the thing all Americans should know as they listen to his speech is that he’s a great multi-tasker. Because not only can he give a partisan response to the State of the Union, but he can also wage a war on working people at the same time.
On Monday, the Indiana state Senate passed legislation to turn their state into a so-called “right to work” state. That legislation is expected to pass the state House, and may be signed into a law soon by Governor Mitch Daniels. And from that point on, working people in Indiana are screwed.
So what exactly do right to work laws mean? Let’s take a look inside a factory. We’ll call it Tom’s Tractor Company. There’s 10 employees who work there. Let’s say a majority of them– six– decide that they’re going to form a union. Under the Wagner Act– also known as the National Labor Relations Act passed back in 1935, the FDR Administration– they have the right to do just that. A majority, they have a union.
Just like when I incorporated the tractor factory and got certain government protections against liability and tax benefits, the workers who unionize will get certain rights as well, like the right to collectively bargain with me– assuming that it’s my tractor factory. I don’t actually have one. Anyway– and once a majority votes to unionize, then in most states, all 10 workers at Tom’s Tractor Factory are now part of the union. All 10 workers get the benefits of the union, including better pay, better benefits, better working conditions. And all 10 workers also have an obligation to pay dues to keep that union functioning.
Dues, by the way, that these guys– these 10 workers– set by voting. They also vote for their leaders that they vote into office. It’s a democracy. And if a worker doesn’t want to be a part of the union, if he doesn’t want the better pay and benefits, then he has the absolute right to work anywhere else in the world except in Tom’s Tractor Company.
But right to work laws change all that. Under right to work laws, which came into existence in 1947 under the Taft-Hartley Act when it was passed by Republican House and Senate over the veto of President Harry Truman, when a majority of workers vote to join a union and the shop gets unionized, those who don’t want to pay union dues don’t have to– even though they get the benefits of all the bargaining and all the other work that the union does for them.
So those four employees at Tom’s Tractor Company who don’t want to pay for the union will still get the better pay and wages, but they don’t have to contribute a dime to it. What happens when that happens? Well, the union loses. It loses money. It loses people. The workers turn on each other until eventually the union collapses. And then, of course, wages go down, benefits are lost, and working conditions stink again.
This is exactly what’s played out in states that have so-called right to work laws, or as they should be called, right to work for less laws. Right now, there are 22 states that have right to work for less laws. Indiana would become the 23rd state. And here are the facts about these states, these right to work for less states.
On average, workers in the right to work for less states make $5,333 a year less than their counterparts in free bargaining states. 21% more people in the right to work for less states lack employee covered health insurance in the right to work for less states compared to the free bargaining states. Poverty is 2.3% higher in right to work for less states.
And looking at numbers from the Bureau of Labor Statistics, incidents of workplace deaths and injury are 51% higher in the right to work for less states than in states that don’t have the right to work for less laws. So basically, you have a right to work for less, a right to work without health care, a right to work in poverty, and a right to work in a dangerous environment thanks to laws like Mitch Daniel will probably be signing later this week that they call right to work.
And here’s what’s really troubling. Once Indiana passes this law, it’ll be the first state in this region– the manufacturing belt– to pass a right to work for less law. And this is where unions were born– actually up into Wisconsin as well. It’s becoming the place where unions are dying now. And as a result, the middle class is dying.
As this chart shows, as union membership has declined in America, so too has the middle class’s share of annual income. We need to put an end to this war on unions. Just recently in Wisconsin, we saw the power– actually let me just– this is unionization and wages. Notice a correlation? Just recently in Wisconsin, we saw the power of the labor movement when it fought back against Governor Scott Walker and collected over a million signatures to recall him from office.
We now need that same energy in Indiana, where Governor Mitch Daniels is a rising star in the Republican Party. And we need to turn him into the next Scott Walker. Unions are literally democracies in the workplace. And we have to save them if we want to restore a strong middle class to America.
Cecil B. DeMille’s Showdown! ：
This is Cecil B. DeMille speaking to you from Hollywood. And I’m speaking to you now, not as a motion picture producer and director, but as a private citizen who believes that every American must have the right to earn a living for himself and his family, whether he belongs to a labor union or not. Today in more than half the states, unions have the legalized power to force a man to join them and support causes to which he may be conscientiously opposed.
Can you, as a responsible citizen, close your eyes to the fact that in your own state a man’s right to work can be taken away from him by the whim of a labor boss? Can you afford to leave such power in any hands?
Like most Americans, I work for a living. And I’m a member in good standing of one labor organization. I am also a member in bad standing of another labor organization. In 1944, because I refused to pay a $1 assessment to support a political stand to which I was opposed, I was suspended by that other union. As a result of that suspension, I lost my right to work in radio and television.
The loss of my radio job did not bankrupt me. But it woke me up with a terrible jolt to my responsibility and to your responsibility to work for legislation that will protect men and women to whom the loss of a job might mean disaster. In the near future, you are going to be faced with a showdown. This simple piece of paper will decide your fate. It may decree that some day you will be ordered to join a labor union, or give up your right to work, your means of support.
It is the admitted purpose of the big labor bosses to organize every wage earner and every salaried worker in this nation. That means you, no matter how you feel about it. And it can be done as long as we have compulsory unionism.
NARRATOR: And so the question of freedom for the individual, which in other times and other states has been kicked around as a political issue, is at last yours to decide. This is your once in a lifetime chance to declare that labor unions were made for man, not man for the unions. It is essential that you know the truth about this issue and the facts behind it.
First of all, it is true that compulsory unionism denies the rights of the individual. Of those employed in a union shop, many believe wholeheartedly in benefits they receive from the union. That is as it should be, for no one would, or for that matter could, deny these people the right to join the union if they want to.
But what of the men who do not consider the union beneficial? Here is the first instance of the rights of an individual being denied. For although such a wage earner does not agree with the policies of the particular union to which he is forced to pay dues, he does not have a choice. He must join or lose his job.
Now let’s look into the case of the union members themselves. They too can have their rights taken away from them. Suppose they object to some phase of union activity. If they do, there is very little they can do about it. Under the present circumstances, a union member must continue to pay his dues or lose his job. And so he has no really effective way of objecting to anything. The edicts simply come down from the union boss’s office, and the rank and file member is under pressure to support them.
Hence, congressional hearings have reviewed many of the evils which have grown up out of compulsory unionism, evils which blacken the good name of labor– defrauds and misuse of union funds, which are crimes against the union members themselves, forced to pay for activities they may be opposed to. And the violence, planned and carried out by paid henchmen. Such evils are in part the result of giving to the union boss the power to take away a man’s right to work, oppressing compulsory unionism with legal sanctions.
Any state which is expanding industrially is a prime target for those who wield the power of compulsory unionism, including corrupt union bosses and their racketeering associates. Not only does the wage earner suffer under compulsory unionism, but the general public as well. Farmers may find themselves forced to pay [INAUDIBLE] to the unions in order to transact business.
CECIL B. DEMILLE: Remember, these are not scenes written by a Hollywood script writer. These are true stories, just a few of many on record across the state. And here is something else to remember. Compulsory unionism can be outlawed without endangering the legitimate purpose of any labor organization.
What happens to unions, you may ask. What happens to unions and to the general wage structure when employees are no longer forced to join the labor unions or hold their jobs? Let’s look at the facts.
NARRATOR: 18 states already have guaranteed freedom for the wage earner. Workers are free to choose for themselves whether or not they want to join a union.
And in those states, according to the latest public figures, union membership voluntarily increased 192%, as compared to only 188% increase in other states. Unions have grown faster in states with voluntary unionism. Also in those states where union membership is now entirely voluntary, the hourly wage rates increased 21% from 1952 to 1956, as opposed to a smaller increase of 19% in the other states.
Department of Labor figures are conclusive. Wages increased at a faster rate in states with right to work laws. In the tumult and shouting that lies ahead, you will hear the voice of the union boss crying, unions must have security. What that statement really means is that the union boss must have security. He must be secure in his knowledge that no matter how he manipulates the union or its funds, his power will remain supreme.
When wage earners have the right to work whether or not they belong to a union, the union boss is returned to his proper place, serving his membership, providing the kind of good leadership which ensures security for a voluntary organization. Put this down on your list of truths when you consider the right to work amendment. This amendment will give back to the wage earner freedom from unscrupulous labor bosses.
The wage earner who benefits from dedicated leadership will support his union. Freedom of choice imposes responsibility for ethical action on the part of the working man, as well as on his leaders. If he benefits, he should join. But he must be the one who decides.
CECIL B. DEMILLE: Both the employer and the labor union may try to make you forget that the fight for guaranteed freedom of employment is a battle to protect the individual. That is you. To protect you from both of the favored interests. For under our present laws, both the employer and the union, bargaining in their own interests, can enter into a contract which violates your right to freedom of choice, a contract which can deny you the right to make up your own mind about whether or not you want to join a union.
This is the ultimate truth about the right to work. It is not against labor. It is not for management. It is for the worker caught between these two forces, who has no protection. It is for you. Under the right to work you, whether you see fit to join a union or not to join a union, you are guaranteed your freedom of choice.
Those of us who are in this fight welcome the support of business if business believes in the freedom of the individual. We welcome the support of labor unions if unions put the rights of their members as individuals before any other consideration.
