Right-to-Work Law

VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW

FIELD OPERATIONS MANUAL

CHAPTER SIX RIGHT TO WORK

This document is part of the latest version of the Virginia Department of Labor and Industry
Division of Labor and Employment Law's Field Operations Manual. This document supersedes
any and all previous editions.

DISCLAIMER

The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor
and Employment Law investigators and staff with interpretations of statutory provisions,
procedures for conducting investigations, and general administrative guidance. The FOM was
developed by the Labor and Employment Law Division under the general authority to administer
laws that the agency is charged with enforcing. The FOM reflects policies established through
changes in legislation, regulations, court decisions, and the decisions and opinions of the
Virginia Department of Labor and Industry. Further, the FOM is not used as a device for
establishing interpretative policy.

The Virginia Department of Labor and Industry (DOLI) is providing the information in this
manual as a public service. This information and other related materials are presented to provide
public access to information regarding DOLI programs. It is important to note that there will
often be a delay between the official publication of the materials and the modification of these
pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town
Hall remains the official resource for regulatory information published by the DOLI. Every effort
will be made to address all errors brought to the attention of the Labor and Employment Law
Division staff.

6.00 Right-to-Work Law

A. Coverage

Virginia's Right-to-Work Law is set forth in §§ 40.1-58 through 40.1-69 of the Code of
Virginia and applies to both private and public industry employees (40.1-58.1).

B. Summary

Virginia is one of twenty-one states with a Right-to-Work Law. Under Section 14(b) of
the National Labor Relations Act (NLRA) Virginia exercised its option to adopt a "right
to work" law.

The law prohibits a closed shop, where employers may hire only members of the
contracting union, and a union shop, where the employee who is not a member of a union
must join after a certain period of employment and must remain a member as a condition
of employment, even if a union is the NLRB-certified representative of employees at a
company.

Under the statute, the right to work cannot be denied or abridged an individual on account
of membership or nonmembership in a labor union or organization and an employer
cannot require employees to become or remain members of a labor union nor require that
dues or fees be paid to a union or labor organization as a condition of employment.

Any person required to join a union or denied employment in violation of Virginia's
right-to-work law is entitled to recovery from the employer, and from any person or
union acting in concert with the employer, any damages sustained by reason of denial or
deprivation of employment. Employees adversely affected as a result of any violation or
threatened violation of the right-to-work law are also entitled to injunctive relief and to
recover damages from violators. Violation also constitutes a Class 1 misdemeanor.

C. Exemptions

The Virginia Right-to-Work Law does not apply to the following:

1. Railroads and airlines. The labor relations activities of these industries are
   governed by the Railway Labor Act. This Act created a National Mediation to
   conduct elections to determine whether or not workers want union representation
   and to mediate disputes that arise during contract negotiations. The National
   Railroad Adjustment Board provides procedures for settling disputes in the
   railroad industry arising out of grievances or the application of contracts. Inquiries
   form employees, employers, or other interested person should be referred to the
   National Mediation Board.
2. Federal enclaves with exclusive jurisdiction. Exclusive jurisdiction can only be
   gained by Acts of the General Assembly. When the Commonwealth deeds
   property to the federal government, exclusive jurisdiction is not a given. Rather,
   the federal government must ask the General Assembly for exclusive jurisdiction
   which can only be granted by Acts of Virginia's General Assembly. The right-to-
   work law does prevail on federal properties having either "concurrent" or
   "proprietary" jurisdiction.

D. National Labor Relations Act and National Labor Relations Board

1. Summary

The National Labor Relations Board (NLRB) is an independent federal agency
established to enforce the National Labor Relations Act. As an independent
agency, they are not part of any other government agency such as the Department
of Labor. Basically, the NLRB has two functions:
1. To prevent and remedy unfair labor practices, whether committed by labor
organizations or employers.
2. To establish, usually by secret ballot elections, whether or not certain
groups of employees wish to be represented by labor organizations for
collective-bargaining purposes.

The NLRB is organized into two major parts: the five-member Board itself, which
has its own staff, and the Office of the General Counsel. The Board Members and
the General Counsel are appointed by the President with the consent of the
Senate. Their offices are located in Washington, D.C. In addition, the agency
maintains field offices in major cities across the nation.
2. National Labor Relations Act Preemption Doctrine

As a general rule, the state is preempted from enforcing allegations of unfair
labor practices and must refer such complaints to the NLRB. There are certain
exceptions, however. For example, the state may investigate and enforce its law
prohibiting any agreement "requiring membership in a labor organization as a
condition of employment."

Whenever the federal labor law regulates an area which the state also regulates,
the state law is preempted by the federal law. Section 101 of Title 29 of the
United States Code states: "The interest in a uniform national labor policy clearly
outweighs any recognized interest in state regulation. Hence, subject to certain
exceptions discussed below, state statutes are pre-empted by federal labor law
wherever the two areas overlap." In San Diego Building Trades Council v.
Garmon, 395 U.S. 236 (1959) it was ruled "If an activity is even arguably
regulated or protected by federal law, the states have no jurisdiction to regulate
that activity." Therefore, the general rule is that any allegation of an unfair labor
practice must be referred to NLRB.

Exemptions to Preemption Doctrine

1. Statutory Exemptions:

   1. State limitations on union security agreements: The exception to
      the preemption doctrine which allows states to enforce their Right-
      to-Work Laws is set forth in Section 29 U.S. Code Section 164(b)
      of the National Labor Relations Act and reads as follows:

   "Nothing in this Chapter shall be construed as authorizing the
   execution or application of agreements requiring membership in a
   labor organization as a condition of employment and in any State
   or Territory in which such execution or application is prohibited by
   State or Territorial law."

   Therefore, if we receive a complaint alleging that an employer and
   a union have entered into an agreement which creates a "union
   shop" (where employees must join the union after securing
   employment), or an "agency shop" (where employees must pay
   dues and initiation fees to the union, but need not join), we must
   investigate and enforce the Right-to-Work Law without regard to
   the NLRB. A closed shop (where employees must be union
   members before they are hired) is outlawed under both federal and
   state law.
   2. Where NLRB refuses to exercise jurisdiction: Section 14(c) of
   the 1959 Landrum-Griffin Amendment provides that state courts or
   state agencies may exercise jurisdiction over activities as to which
   the NLRB has declined jurisdiction because of an insubstantial
   effect on commerce. DOLI will only accept complaints alleging
   violations of the provisions of the Virginia Right-to-Work Law.
   Other allegations would have to be pursued by the claimant's
   attorney through the courts.
   3. Damages for unlawful strikes or boycotts: Under Taft-Hartley
   section 303, suits to recover damages for certain types of unlawful
   strikes or boycotts may be brought in state court — even though
   the activity is also an unfair labor practice under federal law. DOLI
   will only accept complaints alleging violation of the provisions of
   the Virginia Right-to-Work Law. Other allegations would have to
   be pursued by the claimant's attorney through the courts.
   4. Action for breach of collective bargaining contract: Likewise,
   Taft-Hartley section 301 permits suit for breach of a collective
   bargaining agreement in either federal or state court — whether or
   not the breach-of-contract claim also constitutes a federal unfair
   labor practice. DOLI will only accept complaints alleging violation
   of the Virginia Right-to-Work Law. Other allegations would have
   to be pursued by the claimant's attorney through the courts.
   2. Judicial Exemptions:
   1. Matters of overriding local concern: The Supreme Court has
   carved out an exception to the preemption doctrine to permit state
   regulation of conduct which "touches interests deeply rooted in
   local feeling and responsibility."
   2. Matters of "peripheral" federal concern: The Supreme Court
   has also stated that the preemption doctrine does not apply where
   the matter is of only "peripheral" (minor) concern to federal labor
   policy.
   3. Matters where state regulation will promote, rather than impede,
   federal labor policy: The Supreme Court also has disregarded the
   preemption doctrine where the particular rule of law invoked in
   state court is so structured that state regulation would promote,
   rather than interfere with, federal labor policy.
   4. Union duty of fair representation: A union's failure to represent
   all of its members fairly is an unfair labor practice under the
   NLRA. However, the NLRA does not preempt duty-of-fair-
   representation suits by union members in state courts. In such
   cases, the state court applies federal substantive law under section
   301 of the NLRA, augmented by state remedial law. The union's
   duty of fair representation is so fundamental that Congress did not
   intend to oust state courts of jurisdiction. Instead, concurrent state
   jurisdiction and state remedies should be preserved where they
   promote this goal of the NLRA.

   Note: Complaints under these judicial exemptions to the
   preemption doctrine would only be accepted by DOLI if
   allegations of violations of Virginia's Right-to-Work statute exist.
   Other allegations would have to be pursued by the claimant's
   attorney through the courts.

E. Employees Wishing to Withdraw from the Union

Sole jurisdiction of NLRB.

F. Case Assignment

1. Regional, Field, or Central Office staff person receives complaint.
2. The claimant should be requested to write a letter documenting all information
   regarding the allegations.
3. Representative should review claim with Supervisor prior to commencing
   investigation. Supervisor should bring claim to the attention of designated Central
   Office staff person. All Right-to-Work complaints are considered significant cases
   and should be coordinated by Supervisor with Central Office.

G. Investigation

1. Interviews complainant.
2. Interviews employer, union management, etc.
3. Interviews co-workers, witnesses, if necessary.
4. Reviews records where deductions have been made for union dues, etc.
5. Reviews policies regarding union and nonunion membership.
6. Requests employer and/or union official to provide proof to claim of exclusive
   jurisdiction on a federal enclave.
7. If doubt exists concerning NLRB jurisdiction, contact one of NLRB's Field
   Offices for clarification.

H. Case Disposition

Central Office staff person will advise affected parties (complainant, employer, union
official) of what determination DOLI has made in the case, and what action has to be
taken as a result of the determination.