See also
- Right-to-work law
- Employers Group, former the Merchants and Manufacturers Association, fought for the open shop
- Agency shop
- Closed shop, the opposite of an 'open shop', where union membership is a requirement of employment
An open shop is a place of employment at which one is not required to join or financially support a union (closed shop) as a condition of hiring or continued employment.
The major difference between an open and closed shop is the requirement for union membership. [1] There are a variety of opinions regarding the benefits and negatives of open shops.
In the United States, the introduction of 'right to work' laws has been linked with lower overall benefits but higher economic growth by some proponents. [2] [3] [4] Such conclusions are debatable, however, as employment, investment, and income in traditionally unionized sectors of the economy cannot be correlated to passage of such laws. [5] [6]
Open shop means a factory, office, or other business establishment in which a union, chosen by a majority of the employees, acts as representative of all the employees in making agreements with the employer, but in which union membership is not a condition of being hired.
Unions have argued against the open shop adopted by United States employers in the first decade of the twentieth century, seeing it as an attempt to drive unions out of industries. For example, construction craft unions have always relied on controlling the supply of labor in particular trades and geographical areas as a means of maintaining union standards and establishing collective bargaining relations with the employers in that field.
In order to do that, unions argued, construction unions—and to a lesser extent unions representing musicians, longshore workers, restaurant employees, and others who work on a transitory and relatively brief basis—must require that employers hire only their members.
The open shop was also a key component of the American Plan introduced in the 1920s. In that era the open shop was directed not only at construction unions but also unions in mass production industries. Unions again felt that these proposed policies would give employers the opportunity to discriminate against union members in employment and would also lead to a steadfast opposition to collective bargaining of any sort
United States labour law outlaws the open shop in its extreme form: it prohibits private sector employers from refusing to hire employees because they are union members just as it prevents discrimination against employees who do not wish to join unions. [7]
The open shop in its milder form, in which the open shop represents only an employer's refusal to favor union members for employment, is legal. Although the National Labor Relations Act permits construction employers to enter into pre-hire agreements, in which they agree to draw their workforces from a pool of employees dispatched by the union, employers are under no legal compulsion to enter into such agreements.
Non-union construction employers have also adopted the phrase "merit shop" to describe their operations. In many connotations, the terms are interchangeable, however it may be used differently by different sides of the open shop issue.
The open shop is also the legal norm in those states that have adopted right-to-work laws. In those cases, employers are barred from enforcing union security arrangements and may not fire an employee for failure to pay union dues.
The term open shop is also used similarly in Canada, mostly in reference to construction contractors that have at least a partially non-union workforce. Canadians enjoy the freedom to associate, guaranteed by the Charter of Rights and Freedoms, inherently including the right not to associate. [8]
In various Canadian provinces, certain 'open shop' organizations have formed. Many of these organizations claim that small contractors are not adequately protected by current labour legislation.
As labour law is a provincial jurisdiction in Canada, the laws vary from province to province. However, there is some common ground. Despite opposition from open shop contractors, in Ontario, the Liberal government recently[ when? ] reinstituted the card-based certification system that was in place for most of the post-World War II period. Card-based certification was reinstated only for the construction industry. It allows workers to certify an exclusive bargaining agent on the basis of membership, sometimes known as "majority sign-up". Some observers claim that this system creates a risk of employees being misled by business agents. Others assert that it overcomes the natural advantage that employers in opposition to unionization have over their employees. [9]
Some of these associations permit construction contractors that are unionized to join. Several companies whose employees are represented by the Christian Labour Association of Canada or CLAC, a union with non-traditional rules of membership, are members of the association. CLAC's roots trace to the Christian labour movement in the Netherlands.
Janus v. American Federation of State, County, and Municipal Employees, Council 31, US (2018) is a US labor law case, concerning whether governments violate the First Amendment when they require their employees to pay fees to a union as a condition of employment.
In February 2015, Illinois Republican Governor Bruce Rauner filed suit, claiming that fair-share agreements are unconstitutional and a violation of the First Amendment right to free speech.
In March 2015, three government workers from Illinois represented by attorneys from the Illinois-based Liberty Justice Center and Virginia-based National Right to Work Legal Defense Foundation took legal action to intervene in the case. [10] [11] [12] In May 2015, Rauner was dropped from the case, after a federal judge ruled that the governor did not have standing to bring such a suit, but the case proceeded under a new name, Janus v. AFSCME. [13] The case is named after Mark Janus, an Illinois child support specialist covered by a collective bargaining agreement.
Janus claimed that he should not need to pay fees to the American Federation of State, County and Municipal Employees because doing so constitutes paying for political speech with which Janus disagrees. [14] This became permissible after a 1977 decision by the US Supreme Court in Abood v. Detroit Board of Education . The outcome of the case was in favor of Janus and as such non-union members cannot be compelled to pay fees in accordance with a given fair-share agreement that is in place with respect to a union.
A trade union or labor union, often simply referred to as a union, is an organisation of workers intent on "maintaining or improving the conditions of their employment", such as attaining better wages and benefits, improving working conditions, improving safety standards, establishing complaint procedures, developing rules governing status of employees and protecting and increasing the bargaining power of workers.
Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.
In the context of labor law in the United States, the term "right-to-work laws" refers to state laws that prohibit union security agreements between employers and labor unions which require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from paying or being a member of a labor union.
A pre-entry closed shop is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different from a post-entry closed shop, which is an agreement requiring all employees to join the union if they are not already members. In a union shop, the union must accept as a member any person hired by the employer. By comparison, an open shop does not require union membership of potential and current employees.
In labor law, a union shop, also known as a post-entry closed shop, is a form of a union security clause. Under this, the employer agrees to either only hire labor union members or to require that any new employees who are not already union members become members within a certain amount of time. Use of the union shop varies widely from nation to nation, depending on the level of protection given trade unions in general.
A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union.
In organized labor, a hiring hall is an organization, usually under the auspices of a labor union, which has the responsibility of furnishing new recruits for employers who have a collective bargaining agreement with the union. It may also refer to a union hall, or the office from which the union may conduct its activities. A hiring hall in the Construction trades does not offer "new recruits for employers". A Hiring Hall is more fairly described as a hub where experienced employees or workers move between employers. Whether they quit, were laid off or fired, they are seeking work from contractors in need of employees.
The duty of fair representation is incumbent upon Canadian and U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination.
In Canadian labour law, the Rand formula is a workplace compromise arising from jurisprudence struck between organized labour and employers that guarantees employers industrial stability by requiring all workers affected by a collective agreement to pay dues to the union by mandatory deduction in exchange for the union agreement to "work now, grieve later."
An agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs. The fee paid by non-union members under the agency shop is known as the "agency fee".
The Christian Labour Association of Canada (CLAC) is a labour union that represents companies in the construction, healthcare, and food industries. It was established in 1952 to represent workers on the basis of "Christian social principles". The union claims that its approach to labour relations develops workers' sense of responsibility, participation, stewardship, and dignity. It opposes what it calls the undemocratic, adversarial, and monopolistic practices of the labour movement. It has been characterized by other Canadian trade unions for being a "company union" for its support of employer friendly legislation.
Canadian labour law is that body of law which regulates the rights, restrictions, and obligations of trade unions, workers, and employers in Canada.
The New Zealand Employment Relations Act 2000 is a statute of the Parliament of New Zealand. It was substantially amended by the Employment Relations Amendment Act 2001 and by the ERAA 2004.
The National Right to Work Legal Defense Foundation, established in 1968, is a nonprofit organization that seeks to advance right-to-work laws in the United States.
Davenport v. Washington Education Association, 551 U.S. 177 (2007), is a ruling by the Supreme Court of the United States in which the Court held that it does not violate the First Amendment for a state to require its public-sector unions to receive affirmative authorization from a non-member before spending that nonmember's agency fees for election-related purposes.
Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.
Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was a US labor law case where the United States Supreme Court upheld the maintaining of a union shop in a public workplace. Public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the political activities of the union. In a unanimous decision, the Court affirmed that the union shop, legal in the private sector, is also legal in the public sector. They found that non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.
South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.
Harris v. Quinn, 573 U.S. 616 (2014), is a US labor law case of the United States Supreme Court regarding provisions of Illinois state law that allowed a union security agreement. Since the Taft-Hartley Act of 1947 prohibited the closed shop, states could still choose whether to allow unions to collect fees from non-union members since the collective agreements with the employer would still benefit non-union members. The Court decided 5–4 that Illinois's Public Labor Relations Act, which permitted the union security agreements, violated the First Amendment. A similar case was decided by the Court in 2018, Janus v AFSCME, overturning the Court's unanimous decision in Abood v. Detroit Board of Education (1977) which the appeals court had upheld in Harris.
Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018), abbreviated Janus v. AFSCME, is a landmark decision of the US Supreme Court on US labor law, concerning the power of labor unions to collect fees from non-union members. Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be allowed by state law. The Supreme Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overruling the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.