In September 2001, the voters of Oklahoma passed a right-to-work amendment to their state constitution by a margin of 54 percent to 46 percent,[14] making Oklahoma the most recent state to pass a right-to-work amendment. Almost immediately after passage, several unions filed a federal lawsuit seeking to prevent the amendment’s implementation. Since a similar challenge would likely be filed in Michigan if a right-to-work amendment were ratified, the legal arguments presented in Oklahoma are discussed below. The Oklahoma amendment is reproduced in Graphic 1.

Graphic 1: Oklahoma’s Right-to-Work Amendment (Oklahoma Constitution Article XXIII, Section 1A)

§ 1A. Participation in labor organization as condition of employment prohibited.

A. As used in this section, “labor organization” means any organization of any kind, or agency or employee representation committee or union, that exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of work, other conditions of employment, or other forms of compensation.

B. 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 financial 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;

4. Pay to any charity or other third party, in lieu of such payments, any amount equivalent to or pro rata portion of dues, fees, assessments, or other charges regularly required of members of a labor organization; or

5. Be recommended, approved, referred, or cleared by or through a labor organization.

C. It shall be unlawful to deduct from the wages, earnings, or compensation of an employee any union dues, fees, assessments, or other charges to be held for, transferred to, or paid over to a labor organization unless the employee has first authorized such deduction.

D. The provisions of this section shall apply to all employment contracts entered into after the effective date of this section and shall apply to any renewal or extension of any existing contract.

E. Any person who directly or indirectly violates any provision of this section shall be guilty of a misdemeanor.

The unions’ basic argument against the amendment was that as written, the amendment would be pre-empted in so many places by federal law that the entire constitutional provision would be invalid because it was not "severable"[15] (a "severable" provision is one whose valid or unchallenged parts remain in force even when a court invalidates other portions of it). In particular, the unions began by contending that the amendment applied to employees that were "governed by the RLA [Railway Labor Act], the CSRA [Civil Service Reform Act], the PRA [Postal Reorganization Act], as well as those individuals employed at facilities within federal enclaves[*] in the State of Oklahoma."[16] The unions claimed that none of the employees subject to those federal laws was protected by the right-to-work amendment, and they concluded that this pre-emption so radically diminished the scope of the right-to-work amendment that the entire amendment should be struck because it was nonseverable.

The trial court rejected the foundation of the argument, holding that even though Oklahoma’s right-to-work amendment did not contain an explicit provision exempting employees pre-empted by federal law, the amendment did not seek to challenge federal authority:

"... [I]t 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 [Railway Labor Act], the CSRA [Civil Service Reform Act], the PRA [Postal Reorganization Act], and federal enclave jurisprudence. Consequently, the court interprets Oklahoma’s right-to-work law as excluding from its coverage those individuals subject to the RLA, the CSRA, the PRA, as well as those individuals subject to federal enclave jurisdiction. From this conclusion, it follows that the preemption suggested by Plaintiffs with respect to these individuals has no application to any portion of Oklahoma’s right-to-work law."[17]

The unions’ efforts to invalidate large portions of the amendment — and thereby the entire amendment — even led union lawyers to do something counterintuitive: They challenged the amendment provision that stated no person should be required to quit a union, refuse to join a union, or refuse to support a union in order to become employed or remain employed. This argument was also rejected by the court, which stated:

"Plaintiffs argue that under [Section 14(b),] states only have the authority to prevent employers from requiring membership in labor organizations as a condition of employment — they do not have authority to prevent employers from prohibiting union membership as a condition of employment. The court disagrees. The United States Supreme Court has upheld state right-to-work laws which prohibit discrimination in employment based on both union membership and non-membership alike. [Lincoln Federal Labor Union 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949)]."[18]

But the trial court did find some provisions of the right-to-work law were pre-empted by federal law, specifically a provision outlawing "hiring halls" and a paycheck-protection provision.[19]

Having found a portion of the right-to-work amendment to be ineffective, the trial court then performed a severability analysis, which was guided by an Oklahoma statute that generally indicated that Oklahoma legislative acts were severable.[20] The court therefore held that the pre-empted provisions were severable:

"With respect to Oklahoma’s right-to-work law, it is clear that the overriding purpose of the law was to ensure that employment was not conditioned upon one’s membership in, voluntary affiliation with, or financial support of a labor organization or on a refusal to join, affiliate, or financially support a labor organization. Enforcement of the core provisions of the law which carry out this undeniable purpose is in no way hindered by the court’s invalidation of the subsidiary provisions of subsections (B)(5) [the hiring-hall provision] and (C) [the paycheck-protection provision]. Consequently, the invalid provisions of [the amendment] are severable from the core provisions and the remainder of Oklahoma’s right-to-work law is upheld."[21]

The unions appealed to the 10th U.S. Circuit Court of Appeals. That court found another provision of the right-to-work amendment was pre-empted: the

nondiscrimination provision related to those who wished to join or support a union.[22] To properly analyze the 10th Circuit’s conclusion regarding this provision, we first need to review two seminal Supreme Court decisions that upheld right-to-work laws: Lincoln Federal Labor Union No. 19129, American Federation of Labor v. Northwestern Iron & Metal Co.;[23] and American Federation of Labor, Arizona State Federation of Labor v. American Sash & Door Co.[24]


* Very generally, federal enclaves are federally owned land obtained with the consent of the state in which the land is located. The question of whether state right-to-work laws apply within a federal enclave depends on whether the federal government has obtained exclusive jurisdiction over the enclave. Where jurisdiction in an enclave is concurrent between the state and federal government, state right-to-work laws are effective. (See Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO and Local Lodge 2771 v. Dyncorp, Aerospace Operations, Sheppard ENJJPT Div., 796 F. Supp. 976 (N.D. Tex., 1991).)

For the hiring-hall provision, see Okla. Const. art. XXIII, § 1A (B)(5); for the paycheck- protection provision, see Okla. Const. art. XXIII, § 1A (C).

In H.A. Artists & Assoc. v. Actor’s Equity Ass’n, the purpose of union hiring halls was described by the U.S. Supreme Court as follows: “[U]nions maintain hiring halls and other job referral systems, particularly where work is typically temporary and performed on separate project sites rather than fixed locations. By maintaining halls, unions attempt to eliminate abuses such as kickbacks, and to insure fairness and regularity in the system of access to employment.” (See H.A. Artists & Assoc. v. Actor’s Equity Ass’n, 451 U.S. 704, 721 n. 28 (2001).)

In a separate case, the Supreme Court held that the National Labor Relations Board was not allowed to prohibit hiring halls. The court reached this conclusion despite recognizing the potential for hiring-hall discrimination against nonunion workers. (See Local 357, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. NLRB, 365 U.S. 667, 672 (1961).)