The Legal Status of The Open Shop
The term open shop is also used similarly in Canada, mostly in reference to construction contractors that have at least a partially non-union workforce. Canadians enjoy the freedom to associate, guaranteed by the Charter of Rights and Freedoms, inherently including the right not to associate.
United States labor law outlaws the open shop in its extreme form: it prohibits private sector employers from refusing to hire employees because they are union members just as it prevents discrimination against employees who do not wish to join unions.
The open shop in its milder form, in which the open shop represents only an employer's refusal to favor union members for employment, is legal. Although the National Labor Relations Act permits construction employers to enter into pre-hire agreements, in which they agree to draw their workforces from a pool of employees dispatched by the union, employers are under no legal compulsion to enter into such agreements.
Non-union construction employers have also adopted the phrase "merit shop" to describe their operations. In many connotations, the terms are interchangeable, however it may be used differently by different sides of the open shop issue.
The open shop is also the legal norm in those states that have adopted right-to-work laws. In those cases, employers are barred from enforcing union security arrangements and may not fire an employee for failure to pay union dues.
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