Independence Institute's Oliver and "right-to-work" promoter repeated falsehood regarding state labor law

Summary: Amy Oliver of 1310 KFKA failed to challenge guest Kelley Harp, representing the group promoting a "right-to-work" state ballot initiative, when he mischaracterized the measure by stating that it "simply gives every worker in Colorado the freedom to choose whether or not to join the union." Further, Oliver uncritically allowed him to claim falsely that under current state law, workers can be "forced to join a union as a condition of employment." In fact, the National Labor Relations Act bars labor contracts that establish such a "closed shop."

On her April 23 1310 KFKA broadcast, Independence Institute operations director Amy Oliver allowed Kelley Harp, spokesman for the group A Better Colorado that is campaigning for passage of a Colorado "right-to-work" ballot initiative, to misrepresent the proposed measure as one that "simply gives every worker in Colorado the freedom to choose whether or not to join a union." Harp further stated falsely that under the Colorado Labor Peace Act "workers can still be forced to join a union as a condition of employment," saying, "It's something we call 'closed shops,' and they still do exist in Colorado." In fact, as Colorado Media Matters has noted repeatedly, the National Labor Relations Act prohibits the "closed shop" -- a union contract provision under which an employer would compel full union membership as a condition of continued employment -- while allowing union security clauses requiring membership dues.

As Colorado Media Matters has pointed out, Oliver and other operatives from the "free-market" Independence Institute on numerous occasions have used their public media platforms to disseminate false, distorted, or misleading information regarding organized labor issues.

The Denver Post 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.

From the April 23 broadcast of 1310 KFKA's The Amy Oliver Show:

OLIVER: Well, I am pleased to have my next guest on the show, who has been waiting patiently. We had a little mixup on times. Fortunately, he was able to accommodate my mistake. Of course, I'm talking about Kelley Harp, who I mentioned in the last hour. Kelley Harp is the spokesperson for A Better Colorado, which is really the driving force behind the "right-to-work" ballot initiative. And you might wonder, "Why do we even need this?" Well, in a minute we're going to get Kelley Harp's perspective on that.

You know, Colorado for many years has had a delicate balance between labor and business. We've had the Labor Union Peace Act. But last November, Governor Ritter really -- he picked a fight. He started a fight. He's sort of like the kid in the background getting two people, two, you know, two big guys to get, you know, try and fight each other, playin' both sides against each other. And now all of a sudden he's surprised. Well -- and he's asking for a timeout. The problem is, Governor Ritter, with his really blatant, pro-big labor boss policies, has almost forced the hand of businesses right here in Colorado. So, Kelley, thanks for being on the show today. First of all, why don't you explain what-right-to work is, and then we'll talk about the difference between right-to-work and the Labor Union Peace Act.

HARP: Yeah, no problem. Good morning. The Colorado right-to-work measure is pretty straightforward. It simply gives every worker in Colorado the freedom to choose whether or not to join a union. So it just gives that freedom to all employees in the state.

OLIVER: Well, don't they already have that choice? I mean, don't they already have that freedom?

HARP: Under the Labor Peace Act, which is a current law set in statute, workers can still be forced to join a union as a condition of employment; so, meaning they have to pay dues if they want to keep their job or to get a job. It's something we call "closed shops," and they still do exist in Colorado. In fact, yesterday I read in the paper that a contractor for RTD [the Regional Transportation District] down here in the metro area just voted to go closed-shop. So it still exists in Colorado, and right-to-work would eliminate that.

OLIVER: So, if I were employed by XYZ contractor who was working for, or who was doing some work for RTD, and I'm an employee and I say, "You know, I'm not really interested in joining a union, and I don't want my dues going there, so don't worry about it. You know, I don't need your benefits and you can, I'll negotiate directly with my employer." So, if I worked for that contractor, that contractor could say, "You know what, I'm sorry, my friend, but we are now a union shop and you are fired."

HARP: That's true. You either join the union or find a new job.

In stating that on the previous day he had "read in the paper that a contractor for RTD down here in the metro area just voted to go closed-shop," Harp apparently referred to an April 22 Post article that reported, "Bus drivers for Laidlaw Transit Services, one of three private contractors that operate fixed bus routes for RTD, voted Friday to form an all-union shop." Unlike Harp, Oliver used the correct term "union shop" in posing a question about relations between a hypothetical nonunion employee and a contractor. However, Oliver did not challenge Harp when he asserted falsely that as an employee for the contractor, "You either join the union or find a new job."

Further, neither Oliver nor Harp mentioned 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.