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Restoring Equity in Right-to-Work Law

May 1, 2014
By Catherine L. Fisk, Benjamin I. Sachs

This essay, written by University of California-Irvine law professor Catherine Fisk and Harvard University law professor Benjamin Sachs, examines how state right-to-work laws interact with federal labor laws, such as the National Labor Relations Act.

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This essay, written by University of California-Irvine law professor Catherine Fisk and Harvard University law professor Benjamin Sachs, examines how state right-to-work laws interact with federal labor laws, such as the National Labor Relations Act, (NLRA) and proposes a resolution for solving a potential conflict.

Fisk and Sachs write that right-to-work laws may seem to be in tension with federal labor policies, in some ways.

“Right-to-work laws reject the notion that all employees in a bargaining unit should be required to provide financial support to the union selected by the majority,” Fisk and Sachs wrote. “There is, accordingly, a tension between state right-to work regimes and the federal rule of exclusive representation, under which the union has an obligation to represent equally all employees in the bargaining unit. In brief, federal law requires unions to represent all employees in the unit while state right-to-work laws give workers the right to refuse to contribute to that representation. As such, the current state of affairs in right-to-work states can be analogized to a political world in which anyone whose party lost an election could still go to public schools, drive on public highways, and benefit from public security without having to pay taxes to support those public goods”

Fisk and Sachs write that clarifications of unions’ relationship with non-members could solve the tension.

“A rule that absolves the union of the duty to process grievances unless an employee has paid, or is willing to pay, her pro rata share of the cost of grievance processing is consistent with the general principles underlying contracts for professional services and does not discriminate within the meaning of the NLRA against those who do not pay fees to the union.”

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