In their reporting about Colorado House Bill 1072, which would amend the Colorado Labor Peace Act, Colorado newspapers frequently have advanced conservative misinformation by uncritically reporting as fact unsubstantiated opinions from the bill's opponents about its potential negative impact on Colorado's businesses and its economy. Often, news coverage has not provided any substantiation to opposition arguments that the legislation would increase union representation in Colorado. Further, media outlets generally have not reported any context to show the current level of union representation in Colorado or in neighboring states where opponents dubiously asserted businesses would prefer to locate if the bill becomes law.

A Colorado Media Matters review of recent coverage of HB 1072 on the news and editorial pages of The Denver Post, the Rocky Mountain News, The Greeley Tribune, The Gazette of Colorado Springs, the Fort Collins Coloradoan, the Aurora Sentinel & Daily Sun, and The Pueblo Chieftain found that arguments against the bill typically were not accompanied by factual substantiation or even fact-based speculation about its potential impact.

HB 1072 would revise Colorado's Labor Peace Act to strike provisions regarding procedures under which workers preparing to negotiate a union contract can 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. The bill's summary reads:

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.

Publications presenting an accurate account of the bill's content included the News (in articles by financial editor David Milstead on January 23 in print and January 25 online) and the Post (in a January 25 editorial). The News also correctly noted in a January 20 editorial that the system mandated by the Labor Peace Act makes Colorado unique among the states. The 22 “right-to-work” states prohibit all-union agreements; in the remaining 27 states, workers are able to bargain with employers to establish an all-union agreement unhindered by the separate authorizing vote that Colorado law requires and that HB 1072 would eliminate.

Among the more egregious examples of reporting that failed to provide adequate substantiation or context to claims of the bill's opponents was a January 24 Post article by Karen E. Crummy. It reported:

"([Gov. Bill] Ritter) never discussed this with the business groups. We didn't read it in the Colorado Promise," said Bill Ray, communications director for the Denver Metro Chamber of Commerce, in reference to Ritter's agenda for the state's future. “We heard a lot from candidate Ritter about strengthening the economy, but this bill absolutely takes the wind out of Colorado's economic competitive advantage.”

[...]

“Anti-business climate”

“If this is the beginning of going down a union-agenda path, that's not good. This is item one that we feel creates an anti-business climate,” said William Mutch, executive director of Colorado Concern, which represents 100 Colorado executives.

[...]

Job consequences feared

Business leaders and groups contend that passage of the bill will hurt the state's ability to compete for jobs and new companies. The states surrounding Colorado, except New Mexico, are among 23 states nationwide that have right-to-work laws, according to the National Right to Work Legal Defense Foundation.

Crummy's article contained no comments from the bill's sponsor, Rep. Michael Garcia, D-Aurora, or any other proponent. Also missing was any factual substantiation of the claim that “this bill absolutely takes the wind out of Colorado's economic competitive advantage.” At no point did the article cite projections or comments from third-party sources regarding the degree to which businesses might choose states other than Colorado for location or expansion as a result of the bill. Nor did the article cite even anecdotally the opinions of employers, employees, trade groups, or employee groups on how the bill would affect their business prospects or their employment or union organizing decisions. Unlike the January 25 Post editorial and several articles by the Post's Tom McGhee (here and here), Crummy's article did not note that Colorado has a low level of union organization. The Post editorial -- which opposed the bill on the grounds that not enough labor-business dialogue about it had yet taken place -- stated:

In practice, removing this requirement would do little to effect the balance between management and labor in Colorado. Colorado had 170,000 union members in 2005, about 8.4 percent of the state's workforce. Many of those are public employees or work in the building trades and would not be affected by this bill. And contrary to some reports, its passage would in no way ease the burden faced by union organizers when trying to organize such militantly anti-union employers as Wal-Mart.

The Post may have obtained the union representation figures from the U.S. Department of Labor's Bureau of Labor Statistics (BLS), which also publicized figures for 2006 in a January 25 press release.

However, similar to Crummy's January 24 article, McGhee's January 23 Post article uncritically quoted HB 1072 opponents Rep. Kevin Lundberg (R-Berthoud) and the Colorado Competitive Council (CCC) without offering any substantiation of or context for their comments. For example, the Post left unchallenged Lundberg's comment that the legislation “will significantly change the economy of Colorado,” providing no examples of companies that would choose to locate in neighboring right-to-work states instead of Colorado if the bill became law, as Lundberg claimed. Likewise, the Post did not challenge the reported comment by Virginia Morrison Love, a lobbyist for the CCC, that “the bill would cause entrepreneurs who are considering a move to Colorado to look elsewhere,” naming none likely to do so.

A January 26 Gazette article by Ed Sealover noted without elaboration that “Democrats have pushed [the bill] quickly through the House, while business organizations have complained that the bill would make the state off-limits for many companies that might consider moving here.” Similarly, an article by Jason Kosena published on the Coloradoan website on January 29 quoted a letter to Ritter from Republicans in the Colorado legislature without offering any balancing views or other context:

“House Bill 1072 is a dramatic departure from over 60 years of business-friendly law in the State of Colorado,” the letter to Ritter reads. “Not only does it make Colorado less attractive to out-of-state employers, it harms employers already here -- especially small businesses.”

A January 30 editorial in the Tribune advocated against the bill on the basis of unsubstantiated arguments that “Colorado's business and economic leaders” have advanced:

If passed, this bill would negatively alter Colorado's status as a business-friendly state.

[...]

In the first place, the Labor Peace Act has never presented problems in Colorado's free market atmosphere. And, as a process it is unique legislation which enhances this state's ability to attract new businesses because of the possible second vote regarding unionization.

Right-to-work states are attractive to corporations because they provide for open union shops, which means that workers decide whether to join up. The first step of the Labor Peace Act embraces this philosophy, but the second vote gives workers as a whole another opportunity to determine what that union membership will look like.

Colorado's business and economic leaders find this to be a positive element when wooing prospective employers to our state.

If HB1072 passes, Colorado will lose this significant asset and will put us in direct competition for new business with all the states in our region. (New Mexico, as a non-right-to-work state, is the only exception.)

No one wins if we lose out on bringing more jobs to our state.

The Tribune editorial and the Gazette and Coloradoan articles did not provide any examples of businesses that have cited specific harm they would suffer or companies that have indicated they would reconsider locating in Colorado if HB 1072 became law.

Furthermore, neither those articles nor reporting by the Post and the News noted readily available Labor Department statistics showing that, in fact, most of the states bordering Colorado -- including several “right-to-work” states -- already have higher union membership or representation rates than Colorado. That would have raised the unanswered question of why union-related issues would cause businesses to locate in those states instead of Colorado if HB 1072 becomes law. According to the BLS, the 2006 averages for percentage of work force with union membership and percentage of work force represented by unions, respectively, were:

Colorado -- 7.7 percent; 8.6 percent

Kansas* -- 8.0 percent; 9.3 percent

Wyoming* -- 8.3 percent; 10 percent

Arizona* -- 7.6 percent; 9.7 percent

Nebraska* -- 7.9 percent; 9.5 percent

New Mexico - 7.8 percent; 11.5 percent

Utah* -- 5.4 percent; 6.1 percent

Oklahoma* -- 6.4 percent; 7.7 percent

*Right-to-work states, according to the National Right to Work Legal Defense Foundation.

In their reporting about the bill, the newspapers also have made or echoed specific distortions of existing Colorado law and how HB 1072 would change it. Three such misinterpretations are as follows:

1. An all-union agreement compels membership

On January 20 the News published a correction to a January 19 article that falsely had suggested federal law permits a “closed shop” arrangement in which union membership at a workplace is mandatory for all employees covered by the collective bargaining agreement:

Correction

This story incorrectly said House Bill 1072 would essentially repeal the Colorado Labor Peace Act. The bill would replace part of the law. The article also described an all-union workplace inaccurately as a “closed shop,” in which all workers must become dues-paying, voting members of a union to keep their jobs. That is illegal under federal law. In an “agency shop” or “union shop,” the employees must pay the union for the costs of representation but may refuse to join.

McGhee's January 19 Post article included the same misinformation:

Business organizations that oppose the bill say it would damage Colorado's economy and force workers to join unions against their will.

[...]

The bill would change an existing law that requires employees to vote twice, with the second vote requiring a 75 percent majority, before they could negotiate an all-union agreement or “closed shop” with their employer. In a closed shop, all employees must be union members and pay union dues or lose their jobs.

The January 22 Chieftain editorial (“The turkey”) also made this false suggestion:

House Bill 1072 essentially repeals the Colorado Labor Peace Act, a 64-year-old law that puts Colorado somewhere between anti-union right-to-work states and states where unions can easily force the firing of workers who don't become members. Under the current law, a majority of members or three-quarters of those voting must vote in favor of a closed shop.

The Chieftain editorial compounded its misinformation by incorrectly suggesting that some states “require closed shops” -- even though they are illegal, as the News reported in its correction. The Aurora Sentinel & Daily Sun (in a January 29 editorial) and the Chieftain (in a January 24 article) also asserted falsely that the bill would facilitate creation of a “closed shop,” which is illegal under federal law.

As the American Bar Association noted in an overview of U.S. labor and employment law published by the Bureau of National Affairs, 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.

2. The union vote for an all-union agreement unilaterally imposes it on the employer

Several newspaper reports left the misleading suggestion that a union's vote for an all-union agreement imposes that provision on the employer. As a January 23 article in the News correctly explained, the special vote required under existing law merely authorizes the union to discuss a “union shop” arrangement in contract negotiations:

House Bill 1072 strikes a part of Colorado labor law that mandates a special election to decide whether a “union shop” workplace, where all workers must either join the union or pay it for the costs of representation, should be on the table in labor negotiations. To pass, the special election needs the higher of 75 percent of the vote or more than 50 percent of eligible workers.

But the News was imprecise on this issue in its January 20 editorial:

In Colorado, once a bargaining unit has been established at a company by an employee vote, a special second election is needed if the union wants an “all-union agreement” in which every worker -- union member or not -- must pay dues. In that second election, 75 percent of the employees voting, or 50 percent plus one of employees eligible to vote -- whichever is higher -- must approve the all-union agreement. The second election is by secret ballot, in order to minimize the effect of pressure from either the union or the employer.

Thus all-union agreements are harder to achieve -- as they should be. Without the current requirements for the second vote, a bare majority of those who ratify an all-union contract -- who may represent only a minority of all the workers -- can compel every employee to pay into the union or be fired.

The News also failed to specify that an all-union agreement would remain subject to employer approval in a January 20 article:

The bill removes a requirement that after a union authorization vote, a second, secret-ballot vote must be taken before an “all-union” workplace is established. It must pass by more than 50 percent of eligible voters or 75 percent of votes cast, whichever is higher.

3. The bill would help unions to organize

Several newspapers echoed the misleading anti-labor talking point that the bill would facilitate union organization, when in fact the bill's provisions only apply after a union has successfully completed an organizing vote.

McGhee's January 19 Post article stated that “labor unions are pushing a bill in the legislature that would make it easier for them to organize.” Similarly, in a January 23 article, McGhee characterized the bill as one “that would make it easier for unions to organize in Colorado.” In her January 24 article, Crummy also stated that the bill “makes it easier for unions to organize in the workplace.”