In an October 7 article, The Gazette of Colorado Springs reported that “some at the Capitol [are] questioning whether the labor battles that marked this year's [Colorado] General Assembly could resurface in 2008,” noting that one of two new labor proposals is “a statewide ballot issue ... that would bar mandatory participation in labor unions.” The article asserted that the initiative would amend the state constitution so Colorado workers “can't be forced to join a union,” but omitted that federal labor law already prohibits compulsory full union membership.

The Gazette reported that if approved by Colorado voters, the so-called 2008 “right-to-work” ballot initiative would add “provisions [to the Colorado Constitution] that say workers can't be forced to join a union even when most of their coworkers are union members.” The article's sub-headline also read in part, “BALLOT ISSUE: Amendment would stop workers from being forced to join a union.”

From The Gazette article “Union debates are back,” by reporter Ed Sealover:

DENVER -- An anti-union ballot initiative in the works, coupled with ongoing talks between Gov. Bill Ritter's office and a public employees union, have some at the Capitol questioning whether the labor battles that marked this year's General Assembly could resurface in 2008.

Legislators last year passed a bill making it easier for workers to unionize, but only after a Senate filibuster and partisan battles in both legislative chambers. Ritter vetoed it, saying he was concerned with the tone of the debate more than the substance of the bill.

Some union leaders threatened to get the 2008 Democratic National Convention moved out of Denver, and pressure is building for the General Assembly to pass some kind of pro-union legislation next session.

Against that backdrop come two new proposals, one considered anti-union and the other pro-union.

One is a statewide ballot issue submitted by an Aurora city councilman and private businessman that would bar mandatory participation in labor unions and would prohibit unions from collecting dues from workers at union-majority workplaces who choose not to join.

The Ballot Title Setting Board unanimously approved the wording of the amendment Wednesday, clearing the way for backers to begin collecting signatures to get it on the 2008 statewide ballot.

If voters approve the initiative, Colorado would join other “right-to-work” states with constitutional provisions that say workers can't be forced to join a union even when most of their coworkers are union members. Though that resembles current Colorado law, it is not in the state constitution, and supporters fear that laws could be passed to mandate union membership.

As Colorado Media Matters has noted, the National Labor Relations Act (NLRA) sets forth conditions under which workers may be required to provide financial support for a union whose labor contract covers their jobs, without maintaining full membership in the union. At most, an agreement can compel workers as a condition of their employment to maintain “financial core” status, which requires payment of certain dues and fees to the union for activities such as contract negotiations and grievances, but not for political activity. Workers with only “financial core” status but not full membership also are not subject to “union discipline.” The American Bar Association explained this status in an overview of U.S. labor and employment law published by the Bureau of National Affairs:

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. [emphases added]

The U.S. Supreme Court in a 1988 ruling addressed Section 8(a)(3) of the NLRA, which, according to the summary of the court's opinion, “permits an employer and a union to enter into an agreement requiring all employees in the bargaining unit to pay union dues as a condition of continued employment, whether or not the employees become union members.” Writing the majority opinion, Justice William Brennan stated that the Court interpreted the NLRA as maintaining the principle that employees could meet the “financial core” requirements of an agreement without being compelled to become full members:

Taken as a whole, 8(a)(3) permits an employer and a union 2 to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the “membership” that may be so required has been “whittled down to its financial core.” NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963). The statutory question presented in this case, then, is whether this “financial core” includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not. [emphasis added]

In a July 3, 1988, article reviewing the Supreme Court's 1987-88 term (accessed through the Nexis database), The New York Times noted the ruling, reporting:

In a major defeat for most private-sector labor unions, the Court ruled, 5 to 3, that the National Labor Relations Act bars the long-standing practice of requiring nonmembers covered by collective bargaining agreements to pay ''agency fees'' equal to full union dues. It said nonmembers may be required to help pay only for activities related to collective bargaining, not for unions' political advocacy or organizing activities. (Communications Workers v. Beck, No. 86-637.)

The National Right to Work Legal Defense and Education Foundation, which supports “right to work” laws such as the one proposed for the 2008 Colorado ballot, also acknowledges that current federal law prohibits compulsory full union membership:

About Your Legal Rights: Private Sector Employee

Can I be required to be a union member or pay dues to a union?

You may not be required to be a union member. But, if you do not work in a Right to Work state, you may be required to pay union fees. Employment relations for almost all private sector employees (other than those in the airline and railroad industries) are covered by the National Labor Relations Act (NLRA).

Under the NLRA, you cannot be required to be a member of a union or pay it any monies as a condition of employment unless the collective bargaining agreement between your employer and your union contains a provision requiring all employees to either join the union or pay union fees.

Even if there is such a provision in the agreement, the most that can be required of you is to pay the union fees (generally called an “agency fee.”) Most employees are not told by their employer and union that full union membership cannot lawfully be required. In Pattern Makers v. NLRB, 473 U.S. 95 (1985), the United States Supreme Court held that union members have the right to resign their union membership at any time. [emphases in original]

On October 4, a Denver Post article similarly reported that the proposed ballot measure “would prohibit workers from being forced to join and pay dues to a union,” without noting relevant elements of the federal law that already prohibit compulsory full union membership.