The Pueblo Chieftain falsely asserted in an April 10 editorial that a measure to revise Colorado labor law would have allowed "Big Labor" to unionize more easily. In fact, House Bill 1072 -- which Democratic Gov. Bill Ritter vetoed -- would not have aided union organizing or forced workers to join a union.
In an April 10 editorial, The Pueblo Chieftain asserted that a labor reform bill Gov. Bill Ritter (D) vetoed "would have undone 64 years of settled Colorado labor law to make it easier for Big Labor to force organization of employees." In fact, as Colorado Media Matters has noted, the revision to the Colorado Labor Peace Act would neither have facilitated union organizing drives nor permitted a union to compel membership on individual workers who opposed unionization.
The Chieftain falsely characterized the Colorado legislation in an editorial critical of a national labor reform measure under consideration:
Big Labor put tons of money into the past election cycle to elect Democratic majorities in both houses of Congress. Now the chickens are coming home to roost.
Recently, the House passed a misnamed bill, the Employee Free Choice Act (EFCA), which would strip employees of their right to secret ballot elections when voting on whether to unionize. This legislation would replace secret elections with a system of "card check" which opens employees to intimidation and coercion.
The House passed the bill on March 1. Sen. Ted Kennedy, Big Labor's guy from Massachusetts, introduced a companion bill -- S. 1041 -- and Senate floor action could occur at any time.
What's happening here is that fewer and fewer employees, particularly in the private sector, see any value in having to join a union and pay dues. With union membership in the private sector plummeting, Big Labor has turned to their allies in Congress for help.
This move in Congress is reminiscent of a bill passed this year by Democratic majorities in the Colorado Legislature, but vetoed by Gov. Bill Ritter. It would have undone 64 years of settled Colorado labor law to make it easier for Big Labor to force organization of employees.
The Colorado bill to which the editorial referred, House Bill 1072, proposed revising the Colorado Labor Peace Act to strike the requirement that workers preparing to negotiate a contract with an employer hold a separate election of all potentially affected workers in order to obtain necessary authority to make the contract an all-union agreement. Such an agreement requires all workers covered under the contract -- whether they are union members or not -- to contribute money to the union, through dues or fees. According to the bill's summary, HB 1072:
Eliminates the requirement that, in order to validly enter into an all-union agreement, the all-union agreement must be approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater. Makes conforming amendments.
Contrary to the Chieftain's claim that HB 1072 would have made it easier for unions to organize, the provisions of the bill -- which Ritter vetoed February 9 -- would have applied only after a union had successfully completed an organizing vote. As Colorado Media Matters pointed out (here and here), critics of the bill also suggested dubiously that it would have made it easier for unions to compel workers to join.
An American Bar Association overview of U.S. labor and employment law published by the Bureau of National Affairs noted that under the National Labor Relations Act (NLRA), a collective bargaining agreement cannot compel all workers covered under the agreement to maintain full membership in the union. At most an agreement can compel workers to maintain "financial core" status, which requires payment of certain dues and fees:
a. "Union Shop" Clauses
Various provisions of the NLRA relate to the principle of "union security." The primary provisions are Sections 8(a)(3) and 8(b)(2), which authorize so-called "union shop" clauses in collective bargaining contracts requiring unit employees, as a condition of employment, to obtain (within 30 days for nonconstruction employers) and maintain membership in the union. Such a clause can be enforced by the union (usually by demanding the discharge of the noncomplying employee) under two conditions:
- First, the clause can only be enforced on a uniform, nondiscriminatory basis. A union cannot selectively enforce a union security clause by, for example, invoking the clause only against delinquent union dissidents or employees who have resigned their full union membership.
- Second, the clause can only be enforced if the employee has failed to maintain "financial core" status in the union.
"Financial core" status only requires payment of periodic dues or service fees and initiation fees. Employees with financial core status can request that their fees be used only for the union's collective bargaining activities, e.g., contract negotiation and administrative and grievance adjustments, and not for political purposes. Section 19 contains a "religious conscientious objector" clause providing for a tax-exempt donation in lieu of payment of union dues or fees. Excessive or discriminatory initiation fees are unlawful under Section 8(b)(5). The requirement of only "financial core" union status eliminates the problem of "free riders" (employees who enjoy the benefit of the union's collective bargaining efforts without bearing the corresponding financial burden) while avoiding constitutional problems of freedom of speech and association under the First Amendment. Employees with financial core status, however, are not subject to union discipline because they are not full members.
A union is under a fiduciary duty with respect to its enforcement of union security clauses. Thus, the union must give an employee reasonable notice and explanation of the delinquency and a reasonable opportunity to pay.
Full union membership cannot be compelled under the NLRA. The discharge of any employee pursuant to a union shop clause for any reason other than the failure to pay financial core obligations is unlawful. These limitations on statutorily permitted "union shop" clauses in effect create a form of compulsory "agency shop" membership.