In Lincoln Federal, the U.S. Supreme Court considered challenges to North Carolina’s right-to-work law and Nebraska’s right-to-work amendment. As the court described these right-to-work provisions, "A North Carolina statute and a Nebraska constitutional amendment provide that no person in those states shall be denied an opportunity to obtain or retain employment because he is or is not a member of a labor organization."[25] The provisions were challenged, "[O]n the ground that insofar as they attempt to protect non-union members from discrimination, the laws are in violation of rights guaranteed employers, unions, and their members by the United States Constitution."[26]

The unions’ most relevant constitutional claim for our purposes was that these provisions violated the 14th Amendment’s "equal protection" clause,* which basically requires state laws to treat people equally. The Supreme Court rejected the unions’ argument: "[I]n identical language these state laws forbid employers to discriminate against union and non-union members. Nebraska and North Carolina thus command equal employment opportunities for both groups of workers."[27] Thus, right-to-work laws containing both a union- and nonunion-nondiscrimination clause clearly do not violate the federal equal protection clause.

In the second seminal case, American Sash, the Supreme Court stated, "A difference between the Arizona amendment and the amendment and statute considered in the Nebraska and North Carolina cases has made it necessary for us to give separate consideration to the contention in this case that the Arizona amendment denies appellants equal protection of the laws."[28] The difference was, "The language of the Arizona amendment prohibits employment discrimination against non-union workers, but it does not prohibit discrimination against union workers."[29] The unions claimed, according to the court, "[A] failure to provide the same protection for union workers as that provided for non-union workers places the union workers at a disadvantage, thus denying unions and their members the equal protection of Arizona’s laws."[30]

This argument was rejected, but only after the court discussed other Arizona laws that provided protection to unions:

"[W]e are unable to find any indication that Arizona’s amendment and statutes are weighted on the side of non-union as against union workers. We are satisfied that Arizona has attempted both in the anti-yellow-dog-contract law and in the anti-discrimination constitutional amendment to strike at what were considered evils, to strike where those evils were most felt, and to strike in a manner that would effectively suppress the evils."[31]

The court’s additional analysis of Arizona’s other laws implies that without additional state laws that protect union members, a right-to-work law without a union nondiscrimination clause might be declared a violation of the federal equal protection clause.


* Two other constitutional arguments of the unions deserve mention — one because it led to a holding that directly supports the "agreement, understanding or practice" provision of the model language provided later in this study, and a second because it was so ambitious. The Supreme Court rejected an argument that employees and employers could enter into a contract "obligating [the employer] to refuse to hire or retain union workers." The court stated, "If the states have constitutional power to ban such discrimination by law, they also have the power to ban contracts which if performed would bring about the prohibited discrimination." (See Lincoln Federal, 335 U.S. at 533.)

The unions’ more ambitious claim was described by the Supreme Court as follows:

"The right of unions and union members to demand that no non-union members work along with union members is ‘indispensable to the right of self organization and the association of workers into unions’; without a right of union members to refuse to work with non-union members, there are ‘no means of eliminating the competition of the non-union worker’; since, the reasoning continues, a ‘closed shop’ is indispensable to achievement of sufficient union membership to put unions and employers on a full equality for collective bargaining, a closed shop is consequently ‘an indispensable concomitant’ of ‘the right of employees to assemble into and associate together through labor organizations. * * *’ Justification for such an expansive construction of the right to speak, assemble and petition is then rested in part on appellants’ assertion ‘that the right to work as a non-unionist is in no way equivalent to or the parallel of the right to work as a union member; that there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected.’" (See Lincoln Federal, 335 U.S. at 530-31.)

The Supreme Court gave short shrift to this argument:

"We deem it unnecessary to elaborate the numerous reasons for our rejection of this contention of appellants. Nor need we appraise or analyze with particularity the rather startling ideas suggested to support some of the premises on which appellants’ conclusions rest. There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their own working standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not, participate in union assemblies. The constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly’s plans." (Ibid., 531.)