SB12-100, Discrimination Based on Labor Union Participation

SB-100 

PROHIBITION OF DISCRIMINATION AGAINST EMPLOYEES BASED ON LABOR UNION PARTICIPATION

Sponsors: Senators Neville, Brophy, Harvey, Lambert, Lundberg, Renfroe, Cadman, Grantham, King, Mitchell, Sheffel; Representatives Joshi, Baumgardner, Holbert, Looper, Szabo, Nikkel, Scott, Beezley, Coram, DelGrosso, Murray, Priola, Vaad

Staff researcher: Amanda Grosgebauer

What the Bill does:
SB-100 states that all-union agreements are unfair labor practices, therefore membership must be decided by the individual employee.  This bill would make it legal for an employer to refuse an all-union agreement, therefore outlawing charity or agency fees.  This would void all current labor/employer agreements, contracts and practices. 

Colorado Context:
Currently workers in Colorado have the right to organize into a collective-bargaining unit similar to workers in all other states as laid out by the National Labor Relations Act.  Following a card-check or official election, regulated by federal law and agencies, the workplace becomes a union shop and employees become members of the bargaining unit.  If they choose not to be a member, an individual can choose to pay instead a “charity” or “agency” fee, a lower rate that pays for the minimum services provided by the union as part of their “duty of fair epresentation,” such as collective bargaining.  The terms of this union security agreement that dictate agency fees are negotiated as a part of the collective bargaining agreement between the employer and the union. 

Specific Colorado Revised Statues that would be violated by SB-100 are as follows:

8.3-102 (c) The authority for bargaining is issued to the union and the employer. 

8-3-106. Rights of employees. The employee has the right of self-organization and the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. Each employee also has the right to refrain from any of such activities. The rights of each employee are essential rights, and nothing contained in this article shall be so construed as to infringe upon or have any operation against or in conflict with such rights.

8-3-108. What are unfair labor practices.  (1) It is an unfair labor practice for an employer, individually or in concert with others, to:  (a) Interfere with, restrain, or coerce his employees in the exercise of the rights guaranteed in section 8-3-106;  (b) Initiate, create, dominate, or interfere with the formation or administration of any labor organization

National Context:
The National Labor Relations Act (NLRA), the primary federal law governing labor relations in the United States, was enacted in 1935.  The key principles of the NLRA are embodied in its concluding paragraph of section 1:  encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. [1]

Since the passage of the NLRA, many Supreme Court cases have dealt with the legality of the charity or agency fee.  In Railway Employes’ Dept. v. Hanson, 351 U.S. 225 (1956), the Court acknowledged that Congress is charged with identifying “the ingredients of industrial peace and stabilized labor-management relations” to which it has done through the NLRA and established that it would promote peaceful labor relations by permitting a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost. [2] [3] In Machinists v. Street, 367 U. S. 740. (1961), the Court maintained that the union is obliged “fairly and equitably to represent all employees . . . , union and nonunion,” within the relevant unit. Id. at 367 U. S. 761.  A union shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become “free riders” — to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. Ibid.; see Oil Workers v. Mobil Oil Corp., 426 U. S. 407, 426 U. S. 415-416; NLRB v. General Motors, 373 U. S. 734, 373 U. S. 740-741.  [4]

Regardless of an individual’s preference for the politics of their union, the judgment clearly made in Hanson and Street is that such interference does not outweigh the important contribution of the union shop to the system of labor relations established by Congress.  “The furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group’s strategy. If that were allowed, we would be reversing the Hanson case, sub silentio.“  Machinists v. Street, 367 U.S. at 367 U. S. 778

As SB-100 would outlaw agency-fees and all-union agreements, it would be in violation of the key principles of the NLRA by allowing employees to interfere in the practice of collective bargaining and association by not allowing the terms of the union security agreement to be negotiated.  SB-100 would also call into question the judgments made by the Supreme Court in the above cases, that held that Congress is charged with identifying and stabilizing labor-management relations and does so by permitting union and employer to negotiate the terms of their own agreement.   Also, so long as an individual benefits from the collective-bargaining agreement, they must contribute to the costs of representation.

What the bill states:
Add Article 3.3 to title 8: Membership in Labor Organizations, stipulating definitions, prohibited activities, such as charity or agency fees, voids all agreements and specifies penalties for not doing so. 

Section 2. in CRS, 8-3-108, amend (1) (c) and (1) (e).  Abolishes compliance with NLRA in regards to negotiations and elections. 

Section 3. in CRS, 8-3-109, makes conforming amendments. 

Fiscal Impact:  None

[1] National Labor Relations Act (“NLRA”)”. 29 U.S.C. §§ 151-169. July 5, 1935.

[2] “Abood v. Detroit Bd. of Educ. – 431 U.S. 209 (1977)”. Justia US Supreme Court Center.

[3] Railway Employees’ Dept. v. Hanson, 351 U.S. 225 (1956)  Justia US Supreme Court Center.

[4] Machinists v. Street, 367 U.S. 740 (1961)  Justia US Supreme Court Center. Retrieved 2012-02-13.