Rocky's Rosen omitted existing federal law in touting "right-to-work" ballot issue

Summary: In his Rocky Mountain News column promoting a proposed "right-to-work" initiative for Colorado's November ballot as "perfectly reasonable," Newsradio 850 KOA host Mike Rosen inaccurately claimed that the measure would "simply protect" workers by "not forcing them to join a union or pay union dues as a condition of employment." However, as Colorado Media Matters has pointed out repeatedly, federal law already bars compulsory full union membership.

In an April 11 Rocky Mountain News column, Newsradio 850 KOA's Mike Rosen misleadingly stated that a "perfectly reasonable" Colorado "right-to-work" initiative would "simply protect the rights of individual workers by not forcing them to join a union or pay union dues as a condition of employment." 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 Denver Post had reported on April 10 that proponents of the ballot initiative delivered petitions supporting the measure to the Colorado Secretary of State's office on April 9, noting that unions "have opposed the measure and have filed their own ballot proposals."

From Mike Rosen's April 11 Rocky Mountain News column, "Will labor overplay its hand?":

Labor unions are playing chicken with Colorado's economy. In a bald-faced attempt to intimidate supporters of a right-to-work ballot initiative in 2008, unions are threatening to introduce a barrage of their own initiatives if the right-to-work campaign isn't aborted.

The difference between the two camps is that right-to-work measures, while controversial, are perfectly reasonable. They simply protect the rights of individual workers by not forcing them to join a union or pay union dues as a condition of employment. Such laws are already on the books in 22 states. Conversely, the threatened union proposals are economic suicide.

Rosen failed to mention 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. 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 Foundation, which supports "right-to-work" laws such as the one proposed for Colorado, also acknowledges that federal law prohibits compulsory full union membership:

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

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

Answer: 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]

—E.B.