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How to Manage Unions When Operating in Both "Right to Work" and "Non-Right to Work" States

Author: Jed Marcus, Bressler, Amery & Ross, P.C.

Employers may assume that all issues relating to union organization and collective bargaining will be governed by the federal National Labor Relations Act (NLRA). However, the fact is that the NLRA has left certain union-related matters up to the states.

By way of example, although the NLRA prohibits employers and a union from negotiating collective bargaining agreements (CBA) that require employees to be union members before becoming employed (known as a "closed shop"), it also permits them to negotiate a provision, known as a "union security clause." This provision requires employees to either join the union after they become employed, or in the alternative, pay fees analogous to union dues (known as a "union shop"). Union security clauses usually contain "check-off" provisions which require employers to deduct union dues from the paychecks of their employees and submit them to the union.

Despite the above, however, the NLRA does permit states to prohibit employers and unions from negotiating or enforcing union security clauses. Those states that have made it illegal for an employer and union to enter into a CBA that requires employees, as a condition of employment, to either become a member of a union or otherwise provide financial support to a union, are known as "right to work" states. Currently, there are 28 "right to work" states: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming. Note that West Virginia's "right to work" law was enjoined pending resolution of several legal claims but the injunction was lifted by the state Supreme Court on September 15, 2017. Therefore, West Virginia's law is currently effective. In addition, Missouri's "right to work" law was poised to become effective on August 28, 2017 but is currently suspended pending a public vote in November 2018.

Note that there may be cases where an employee lives in one state and works in another. In those instances, the labor and employment law of the state in which the employee works generally controls. Thus, for example, if an employee lives in a "right to work" state but works in a "non-right to work" state, the employee will be required to join or financially support a union pursuant to a CBA that contains a union security clause.

An employer that operates in both "right to work" and "non-right to work" states must be aware of its responsibilities and obligations when managing union-related issues within its operations.