Official time as a form of union security in federal sector labor-management relations

Air Force Law Review, Spring, 2007 by Kenneth Bullock

About half of all private-sector contracts provide limited paid time for union officials to represent employees in grievances. (29) The vast majority of private-sector contracts allow long-term unpaid leave for employees who become full-time union officials, and most of these provisions allow employees to accrue seniority and eligibility for other benefits while on union leave. (30) About half of all private-sector agreements allow for short-term, unpaid union leave for attendance at union conferences and training activities, (31) and a small percentage guarantee paid time for union negotiators. (32) There have been no comparable studies of contracts in the public (non-federal) sector, but it is believed that official time provisions are common in state and local government collective bargaining agreements, (33) especially for grievance processing. (34)

A key difference between leave for representational activities and other union security arrangements is that the support comes from the employer, not from the represented employee. The most likely motive for employers to provide leave is to promote the smooth operation of the collective bargaining process. For instance, leave gives union leaders an incentive to conduct bargaining or grievance activities during normal work hours, which is usually more convenient for management officials. Because there is no "coercion" involved, company/official time has not aroused nearly the level of controversy that accompanies other union security provisions.

C. The Controversy Over Union Security

Even after the closed shop and the strictest forms of the union shop were prohibited nationwide in 1947, bitter controversy over mandatory support for unions continued. A key factor in the continuing controversy was the fact that labor and management leaders frequently disregarded the law and negotiated contract provisions that had the practical effect of perpetuating closed shop or union shop arrangements. (35) Since few employees had the sophistication or the resources to challenge the contracts, the prohibited practices continued. The unions' willingness to violate Taft-Hartley proved to be shortsighted, as the continued abuses inspired the rise of the "Right to Work" (RTW) movement during the 1940s. The first RTW laws had been passed in 1944, and by 1947, eleven states had adopted them. (36) The Taft-Hartley Act, enacted in 1947, explicitly allowed states to prohibit mandatory financial support to unions. (37)

During the 1950s the RTW movement gained momentum and evolved into a national organization, the National Right to Work Committee (NRWTC), which drew its support from workers and small business owners. (38) By the late 1960s, laws that prohibited compulsory support of unions had been enacted or adopted by judicial interpretation in twenty-two states. (39) The NRWTC continues to campaign for federal and state laws restraining all forms of compulsory unionism. (40)

There is no question that RTW laws prevent the negotiation of strong union-security clauses in the states where they are effective, and such laws can even be effective beyond state borders, influencing contracts negotiated in multi-state bargaining units that include RTW and non-RTW states. (41) Researchers have spent considerable effort attempting to determine the ultimate effect of RTW laws on union membership rates. Since the laws exist only in states with weak traditions of union membership, it is difficult to distinguish between the effects of the RTW laws and the effects of the underlying cultural factors that gave rise to them. A 1998 study of the available literature concluded that RTW laws