An October 4 Denver Post article reported on "[a]nti-union advocates seeking a constitutional amendment that would bar compulsory union membership for workers," noting that their proposed ballot measure “would prohibit workers from being forced to join and pay dues to a union.” In fact, as Colorado Media Matters has noted, federal labor law already prohibits compulsory full union membership, while allowing union security clauses requiring membership dues.

The Post reported that the state's Initiative Title Setting Review Board approved the language of the “Colorado Right to Work” amendment for the 2008 ballot.

From Mark P. Couch's article " “Right to work” advances: A panel approves the language of a November 2008 ballot initiative to bar compulsory unions," published in the October 4 edition of The Denver Post:

Anti-union advocates seeking a constitutional amendment that would bar compulsory union membership for workers advanced Wednesday toward the 2008 ballot.

The language for a proposed “Colorado Right to Work” amendment was approved by the state's Initiative Title Setting Review Board.

The measure would prohibit workers from being forced to join and pay dues to a union.

Contrary to the Post's suggestion that under current law a worker can be forced both to “join and pay dues to a union,” 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. The American Bar Association explained this 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 National Right to Work Legal Defense and Education Foundation (NRTWLDF), which supports “right to work” laws such as the one proposed for the 2008 Colorado ballot, 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]

The NRTWLDF indicated in a separate fact sheet on the legal rights of public sector employees that compulsory full union membership is prohibited under U.S. labor law:

About Your Legal Rights: State or Local Government Employee

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

You cannot be required to be a union member in any state. A number of states have passed laws which either require, or authorize public employers and labor unions to negotiate agreements which require, all employees to either join the union or pay the equivalent of union dues as a condition of employment.

However, as a result of Abood v. Detroit Board of Education, 431 U.S. 209 (1977), a First Amendment lawsuit that was supported by the Foundation, public employees cannot be required to do more than pay a union fee (typically called an “agency fee”) that equals their share of what the union can prove is its costs of collective bargaining, contract administration, and grievance adjustment.

Except in extraordinary cases, the union's costs of collective bargaining, contract administration, and grievance adjustment do not equal the dues amount.

You have a right to object and obtain a reduction of your compulsory agency fee payments so they do not include the part of dues that is used for purposes other than collective bargaining, contract administration, and grievance adjustment. [emphasis in original]