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A primer on right-to-work legislation

SANTA FE – Pending before the state Legislature is right-to-work legislation that would prohibit employees from being forced to choose between becoming active union members or paying representation fees to unions as a condition of employment.

Supporters say the legislation, if enacted, would make New Mexico more attractive to companies seeking to expand or relocate. They also say the legislation is a fairness issue.

Opponents dispute that a right-to-work law would aid economic development. They say it would weaken unions and could drive down pay and benefit levels.

Here are seven things you should know about the legislation and the National Labor Relations Act, the federal law that defines the rights of employees to organize and bargain collectively with their employers through their representatives, if they so choose:

1) Can a worker be required to join a union?

No, but an employee in a workplace covered by a collective bargaining agreement can be required as a condition of employment to pay so-called agency fees to cover what a union determines is its cost of representing that employee.

2) What would right-to-work legislation do?

The legislation would prohibit enforcement of union-security agreements negotiated between employers and labor organizations. Such agreements, which are voluntary for employers and unions, are permitted under the National Labor Relations Act.

Under a union-security agreement, an employee must either be an active union member or, at a minimum, pay agency fees for union representation as a condition of employment.

“The most that can be required of nonmembers … is that they pay their share of the union’s costs related to representational activities (such as collective bargaining, contract administration and grievance adjustment),” according to a guide to the National Labor Relations Act published by the National Labor Relations Board.

An employee who objects on religious grounds to paying money to a union may be required to make a contribution to a nonreligious, nonlabor tax-exempt organization, according to the guide. Employees who aren’t active union members also can’t be forced to pay fees to unions to support their political activities.

3) Why is it called right-to-work legislation?

The term doesn’t appear in the legislation but is widely used and accepted nationwide to describe such laws. It is shorthand for right to work without being forced to pay any money to a union.

It’s a misnomer in the sense that there is no right to work in federal or state constitutions, says Paul Secunda, a professor and director of the Labor and Employment Law Program at Marquette University Law School in Milwaukee.

There are federal and state laws that prohibit employment discrimination based on race, gender, national origin, union membership and other factors.

The Dallas Morning News has reported that the phrase “right to work” was coined in 1941 by one of its writers, who argued in an editorial that the U.S. Constitution should be amended to guarantee a right to work with or without union membership.

The editorial sought an end to so-called closed union shops, which required union membership as a condition of being hired. The federal Taft-Hartley Act in 1947 banned closed shops.

4) Does a union have to represent all workers?

A union that has been designated by a majority of employees in a bargaining unit as their representative becomes the exclusive bargaining agent for that unit and has a legal duty to represent all employees, including those workers who aren’t active union members and choose to pay only agency fees, according to Secunda and others.

This is from the website of the National Labor Relations Board:

“Your union has the duty to represent all employees – whether members of the union or not – fairly, in good faith, and without discrimination. This duty applies to virtually every action that a union may take in dealing with an employer as your representative, including collective bargaining, handling grievances and operating exclusive hiring halls.”

John Raudabaugh, a professor at Ave Maria School of Law in Naples, Fla., and a former member of the National Labor Relations Board, says the duty to represent all employees applies only to unions that have been certified by the National Labor Relations Board as exclusive bargaining agents.

The duty doesn’t apply to a union whose members make up a majority of workers in a bargaining unit but hasn’t been certified as the exclusive bargaining agent, Raudabaugh says.

Unions that have been certified as exclusive bargaining agents say they need union-security agreements with employers to recover the costs of representing workers who aren’t active members.

5) What is a bargaining unit?

In general, “A unit of employees is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining,” according to the guide to the National Labor Relations Act published by the National Labor Relations Board.

6) Is a right-to-work law unfair to unions?

Unions and others say “yes” because they say unions have to continue to provide representation to employees who aren’t active members without being able to collect agency fees from those workers.

Some also say state right-to-work laws conflict – perhaps unlawfully – with the National Labor Relations Act requirement that unions represent all workers when the unions are exclusive bargaining agents. A total of 24 states have successfully enacted right-to-work laws.

“This, we contend, is a confluence of federal and state rules that creates an inequity in U.S. labor law that calls for resolution,” law professors Catherine Fisk of the University of California-Irvine and Benjamin Sachs of Harvard University in Cambridge, Mass., wrote in a paper published last year.

“If state law is to allow workers to decline union membership and to decline to pay for union representation, federal law ought not require that the union nonetheless provide equal representation to the nonpayment nonmember,” Fisk and Sachs wrote.

There are some who argue that right-to-work laws could be good in some ways for unions and workers.

Some workers might be more willing to give unions a try if it isn’t going to cost them anything, making it easier for unions to win votes to become exclusive bargaining agents. Unions may have to become more effective to persuade workers to voluntarily pay fees, and stronger unions benefit workers when it comes to negotiating wages and benefits.

7) Can a union negotiate a contract for only its members?

No, a union that has been designated by a majority of employees in a workplace as their representative is the exclusive bargaining agent for all employees in the unit, says William Gould, a professor at Stanford Law School in Palo Alto, Calif., and former chairman of the National Labor Relations Board.

“There is a duty of representation to all employees in the unit,” Gould says “That (a members-only contract), itself, would be unlawful.”

Because federal law is supreme to state law, a state law allowing members-only contracts in that situation would be unconstitutional, Gould says.

James Sherk, an economist with the conservative Heritage Foundation in Washington, D.C., argues a union that has been designated as the exclusive bargaining agent for a workplace has a legal right to bargain for all employees but can choose instead to bargain for only its members.

Raudabaugh disagrees with that but says a union whose members make up a majority in a workplace but hasn’t been certified by the National Labor Relations Board as the exclusive bargaining agent could negotiate a members-only contract.

However, Raudabaugh adds, the employer wouldn’t be required by the National Labor Relations Act to bargain with a union in that circumstance. Bargaining is required with a certified exclusive bargaining agent.

Sherk says it wouldn’t make sense for a employer to choose not to bargain with a union whose members make up a majority of the workplace.

A union that represents only a minority of employees in a bargaining unit can negotiate a members-only contract, Gould and others says. Again, however, an employer isn’t required to negotiate with a minority union, Gould says.

Secunda, of the Marquette University Law School, says there are legal interpretations that seemingly would allow the National Labor Relations Board to force employers to negotiate with minority unions.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at or 505-992-6280 in Santa Fe. Go to to submit a letter to the editor.