A ‘Duty to Bargain’ Over Employees’ Freedom?! 

Firms Are Forced to Put Employees’ Right to Work up For Sale 

Years of federal case law, including the National Right to Work Legal Defense Foundation-won Supreme Court cases Harris v. Quinn (2014) and Janus v. AFSCME (2018), make it clear that no government authority may directly force any employee to bankroll a union as a job condition. 

Unfortunately, the same courts that have barred forced unionism by government fiat have yet to overturn provisions in laws such as the National Labor Relations Act (NLRA) that force employers to name their price for selling out their employees’ Right to Work without paying tribute to Big Labor. 

But the fact is, as the High Court drove home just two years ago in NRA v. Vullo, the government cannot do indirectly what the Constitution prohibits the government from doing directly. 

Federal Law Authorizes and Promotes Forcing Employees to Pay Union Fees, or Be Fired 

That’s the basis for National Right to Work Legal Defense Foundation Vice President Bill Messenger’s argument that, despite the NLRA and other procompulsion statutes, unionized employers who respect their employees’ personal freedom “can refuse to bargain with unions over forced fee requirements.” 

A paper regarding this topic that Mr. Messenger recently prepared with the assistance of two of his Foundation colleagues explicitly states that National Labor Relations Board (NLRB) bureaucrats violate the First Amendment when they “compel unwilling employers to bargain” over forced union fees. The paper is now posted on the Foundation website. 

“For nearly a century,” explained Mr. Messenger, “NLRB bureaucrats have cited the NLRA’s authorization for forced unionism as a justification for their insistence that employers have a ‘duty to bargain’ over it. 

“But the NLRA can’t trump the Constitution. And Vullo makes it clear that using the threat of federal prosecution to force any employer to put employees’ Right to Work on the bargaining table violates the First Amendment.” 

As this Newsletter edition goes to press, Foundation attorneys are actively looking for a case that would enable them to use the Vullo precedent to protect employees’ Right to Work as well as employers’ freedom to refuse to collude with union bosses in trampling it. 

Congress Has the Ability, Duty to Protect Private-Sector American Workers 

National Right to Work Foundation and Committee President Mark Mix commented: 

“Just as the Foundation-won Janus case established eight years ago that public employees’ Right to Work is constitutionally protected in all 50 states, a Foundation case based on Vullo, Harris, and Janus could potentially extend private-sector Right to Work protections to the whole U.S. 

“Of course, pro-Right to Work citizens shouldn’t and don’t have to rely exclusively on the courts to end forced union financial support. 

“Thanks in part to Committee members’ tireless activism, there are 26 state laws on the books safeguarding employees’ Right to Work. And Congress itself has the ability and duty to protect private-sector workers nationwide by repealing all of the federal labor-law provisions that authorize and promote forced union fees as a job condition. 

“Fortunately, judges are not the only people who have the power to redress constitutional wrongs. 

“When a federal law violates the Constitution, members of Congress and the President have a duty to repeal or amend the law to bring it into accord with the Constitution, regardless of what the judiciary decides to do.” 

In the current Congress, the Committee and its 2.8 million members are lobbying hard to build support for H.R.1232/S.533, otherwise known as the National Right to Work Act. 

National Right to Work Act Now Has 149 Congressional Sponsors 

“This legislation would bring federal labor policy into compliance with Vullo by removing the authorizations for firing employees for refusal to bankroll an unwanted union from the NLRA and the Railway Labor Act,” said Mr. Mix. 

“It now has a total of 149 congressional sponsors, with the number continuing to rise this summer. 

“I commend Rep. Joe Wilson [R-S.C.] and Sen. Rand Paul [R-Ky.] for having respectively introduced H.R.1232 and S.533 in the U.S. House and Senate. 

“Federal policies that trample the Right to Work are unconstitutional as well as unjust and economically destructive. It is long past time to terminate them.” 

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This article was originally published in our monthly newsletter. Go here to access previous newsletter posts.

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