Employers may decide not to include a union security clause in their labor contracts. However, if they do include one, individual employees have other legal protections against the use of their dues or fees for union non-representation activities including lobbying, public relations, or image building.40

For private-sector employees who are dissatisfied with their union security arrangement there is an additional provision in the NLRA which allows the National Labor Relations Board to determine by secret ballot whether the employees covered by a particular "union shop" agreement desire to withdraw their union's authority. This is called a union-shop de-authorization election and can be brought about with a petition signed by 30 percent or more of the employees in a bargaining unit.

The union shop contract requirement to "join a union" and to remain a member "in good standing" has largely meant that an employee must pay dues and initiation fees, but not actually "join" the union if he declines to do so. U. S. Supreme Court rulings have affirmed that any employee who refuses under a union shop agreement to pay dues—excluding those spent on non-representation activities such as political lobbying—may be discharged by the employer when the union presents proof of this refusal.

However, an employee who has offered to pay dues and appropriate fees but is denied membership by the union or declines to join cannot be legally discharged.41 This is one of the least known and most misunderstood features of the labor laws among employees and employers. These individual protections against compulsory union membership are rooted in the First Amendment protections of freedom of association and freedom of speech.