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27 Harvard Journal on Legislation 51 (1990)


The Supreme Court's recent decision in Communications Workers of America v. Beck interpreted section 8(a)(3) of the National Labor Relations Act (NLRA) to prohibit the observance of agency shop agreements. By interpreting the statute in this way, the Court avoided the question of whether union security agreements under the NLRA are subject to constitutional scrutiny. The Court's determination that section 8(a)(3) does not allow agency shop agreements was an important decision affecting the enforceability of union security agreements in the vast majority of private sector bargaining agreements.

In this Article, Professor Dau-Schmidt criticizes the Court's interpretation of section 8(a)(3) in Beck. The Article examines the Court's NLRA precedents and the legislative history of the NLRA's section 8(a)(3). Several methods of statutory construction and constitutional adjudication are analyzed. Finally, Professor Dau-Schmidt argues that union security agreements under the NLRA are not subject to constitutional scrutiny because there is no state action in their negotiation or observance.