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State constitutional amendments would largely mirror existing statutory provisions
[Editor's Note: Alabama's proposed right-to-work constitutional amendment was approved and Virginia's was rejected. Virginia still has a similar right-to-work statute even though it will not be added to the state constitution]
Voters in Alabama and Virginia will decide whether to incorporate right-to-work laws into their respective state constitutions. But the amendments won't do much other than make it harder to alter existing provisions in the future.
Twenty-six states, including Alabama and Virginia, currently have right-to-work laws on the books, according to the National Conference of State Legislatures.
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These laws generally prohibit employers and labor unions from entering into agreements that require employees to join a union or pay membership dues as a condition of employment.
[SHRM members-only toolkit:
Complying with U.S. Labor Relations Laws in Non-Union Settings]
Proponents of such laws argue that employees should have the freedom to decide whether to join a union and that unions should have to show the benefits of membership to persuade employees to join.
Opponents argue that right-to-work laws encourage "free-riding" by employees who receive the benefits of collective bargaining without
paying their "fair share."
Although Alabama and Virginia already have statutory right-to-work laws, Republican legislators have moved to make these laws a part of each state's constitution to make it more difficult to dilute their effect.
The federal Labor Management Relations Act of 1947—known as the Taft-Hartley Act—aimed to protect employees from potential union corruption and unfair labor practices.
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The act banned "closed shops" that required union membership prior to employment, but "union shops" are still permissible under federal law. Under a union shop arrangement, employees may be required to join the union—or at least pay certain fees—within a certain timeframe after they're hired.
However, Section 14(b) of the Taft-Hartley Act allows states to establish right-to-work laws, said Richard Carrigan, an attorney with Ogletree Deakins in Birmingham, Ala.
The act amended the National Labor Relations Act to allow states to prohibit the "execution or application of agreements requiring membership in a labor organization as a condition of employment," he explained.
"This year, Alabama voters will consider a
proposed Amendment 8 to make right-to-work protections part of Alabama's 1901 Constitution," Carrigan said.
However, even if the amendment is passed, it will have little effect on Alabama employees, he noted. "A similar statutory protection has been in effect since 1953 despite legislative efforts to weaken or eliminate it."
Amending the state constitution would make it more difficult for Alabama to end its right-to-work laws, he added, but neither Alabama statutes nor the Alabama Constitution would prevent Congress from amending Section 14(b) of the Taft-Hartley Act.
Virginia ballot measure wouldn't have much impact on the workplace if it passes.
Virginia has been a right-to-work state for nearly 70 years, said Jimmy Robinson, an attorney with Ogletree Deakins in Richmond, Va.
"The amendment would add a section to the constitution, but the actual provisions would stay close to the same as the current law," he said. "The effect will be the same."
In Virginia, there can't be an agreement between an employer and a labor union that says employees have to join a union to work there, Robinson explained. Union membership has to be voluntary instead of a condition of employment or continued employment, and the union can't have a monopoly in the particular enterprise.
A constitutional amendment would make it harder for the Virginia General Assembly to change the right-to-work law.
It's a political move, Robinson said. The Republicans who support the amendment are trying to guard against future changes in the law that would be more left-leaning than they would like, he noted, whereas the Democrats who are against it think it's not necessary.
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