In my February column I celebrated Oklahoma’s new right-to-work (RTW) law, which was adopted by voters 54-46 percent in September last year. A RTW law prevents unions with monopoly-representation privileges from forcing nonmembers to pay for representation they do not want. Section 14(b) of the National Labor Relations Act (NLRA) authorizes states to enact such laws. Several unions sued in federal district court to overturn the new law. They lost, but the details are instructive, and the unions are likely to appeal.
The new law says, in part: “No person shall be required, as a condition of employment, or continuation of employment, to: 1. Resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary support of a labor organization; 2. Become or remain a member of a labor organization; 3. Pay any dues, fees, assessments, or other charges of any kind or amount to a labor organization.”
Unfortunately, Section 14(b) applies only to workers covered by the NLRA, and the Oklahoma law says “no person” can be forced to pay dues and fees. The NLRA applies to all private-sector workers except those employed in the railroad and airline industries. Those workers are covered by the Railway Labor Act (RLA), which does not have any RTW provision. Furthermore, the NLRA does not apply to government workers. Oklahoma may enact RTW legislation for its state and local employees, but it cannot do so for federal government employees working in Oklahoma. The Civil Service Reform Act (CSRA) covers them. The unions tried to get the law thrown out on the grounds that it purports to affect RLA and CSRA workers, something that states have no power to do.
Fortunately, in a summary judgment, Judge Frank H. Seay did not let that happen. He said that “it is simply not a reasonable construction to extend the scope of Oklahoma’s right-to-work law to include those individuals subjected to regulation under the RLA [and] the CSRA.” That is, the authors of the ballot measure knew perfectly well that it could only affect NLRA workers. They did not intend to do that which they knew they could not do. When a statute can reasonably be interpreted in more than one way, the “rules of statutory construction dictate that the court adopt a construction of the state law which will uphold its validity as opposed to one which will render it void by reason of federal preemption.”
I am confident the district-court decision will be upheld on appeal, but the authors of the ballot measure certainly gave the unions an easy target and could have at least avoided the costs of this litigation.
It is customary when writing state legislation to include a severability clause that says if any portion of the law is declared invalid, the rest of the law still stands. The Oklahoma authors did not do so. That got them in trouble because they included two parts of the law that are clearly pre-empted by the NLRA.
One declared that it would be illegal in Oklahoma for any workers to have to go through union hiring halls to get employment in industries that customarily use them such as construction. It is well established in case law that Section 8(a)3 of the NLRA permits the use of union hiring halls, even in RTW states, so long as the halls do not discriminate between union members and nonmembers. Of course, the nondiscrimination rule is often honored in the breach, but that is another matter. No state may forbid their use.
The other part purported to forbid payroll deductions of union fees (the “check-off”) without the permission of each individual worker, and such permission could be revoked at any time. Section 302(c)4 of the NLRA requires the permission of each worker for a check-off, but states that such permission “shall not be irrevocable for a period of more than one year.” Oklahoma law says that the check-off is never irrevocable. This part of the state law cannot stand.
Judge Disagrees
The unions argued that since these two provisions of the Oklahoma law are clearly invalid, and since it does not include a severability clause, the whole law must be overturned. Again, Judge Seay disagreed with the unions. The issue of severability is a matter of state law, and Oklahoma has an umbrella statute that states that “the provisions of every act or application of the act shall be severable unless the act contains a non-severability clause.”
The unions also attempted to get the law overturned on the basis of the Oklahoma Constitution, which provides that “where a general law can be made applicable, no special law shall be enacted.” The RTW law specifically applies to forced union dues and fees and has no general applicability. Judge Seay declined jurisdiction on this question, and the unions may try their luck in the Oklahoma courts. As Stefan Gleason of the National Right to Work Legal Defense Foundation puts it, “I guess the unions think there is nothing special about being the only private organization that can legally force people to pay for what they do not want.”
Finally, as I have frequently argued in these columns and elsewhere, if the NLRA did not impose exclusive representation (monopoly bargaining) on labor relations, the whole RTW issue would be moot. There would be no grounds on which unions could compel workers to pay union dues, for unions would represent only their voluntary members. RTW laws do not solve the underlying problem. They are only second-best defensive measures. It would be much better to scrap the NLRA and replace it with a regime of truly voluntary unionism.
Charles Baird is a professor of economics and the director of the Smith Center for Private Enterprise Studies at California State University at Hayward.
