Protecting America's Public Employees: A Handbook for Union Dues Reform
Copyright © July 4, 1999 by the American Legislative Exchange
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Protecting America's Public Employees: A Handbook for Union Dues Reform has been published by the American Legislative Exchange Council (ALEC), Commerce and Economic Development Task Force, as part of its mission to discuss, develop and disseminate public policies expand free-markets, promote economic growth, limit government and preserve individual liberty.
ALEC is classified by the Internal Revenue Service as a 501(c)(3) non-profit public policy and educational organization. Individuals, philanthropic foundations, corporations, companies, or associations are eligible to support ALEC's work through tax-deductible gifts. Nothing written herein is to be construed as necessarily reflecting the view of the American Legislative Exchange Council, its Board of Directors, or its membership, or as an attempt to aid or hinder the passage of any bill before the Congress or in state legislatures.
Chapter 1 -- Introduction
Chapter 2 -- The National Labor Relations Act: Implications for State and Local Governments
Chapter 3 -- Political Funding Reform Act
Chapter 4 -- Employee Rights Reform Act
Chapter 5 -- Public Employer Payroll Deductions Policy
Chapter 6 -- Labor Organization Deductions Act
Chapter 7 -- Public Employee Freedom Act/Right to Work Act
Chapter 8 -- Summary and Conclusions
Endnotes
Myron Lieberman is a Senior Research Scholar of the Social Philosophy and Policy Center. He was educated at the University of Minnesota and the University of Illinois and has taught at the University of Pennsylvania, Ohio University, the University of Southern California, and the City University of New York. He has served as a consultant to six state legislatures and several national organizations on questions of collective bargaining, as an expert witness, and as a chief negotiator or consultant in collective bargaining in numerous school districts.
Dr. Lieberman is the author of fifteen books on education policy, including Privatization and Educational Choice (1989), Public Education: An Autopsy (1993), The Teacher Unions (1997), Teachers Evaluating Teachers: Peer Review and the New Unionism (1998) and Understanding the Teacher Union Contract: A Citizens Handbook (2000).
This handbook sets forth and explains model legislation on labor relations in state and local government. It differs in two important ways from previous efforts by ALEC to provide useful model legislation on this subject to its members.
First, the Handbook includes a considerable body of explanatory material that should be helpful to ALEC members. In the past, model labor legislation was presented to ALEC members in one volume that included model legislation on dozens of topics. As a result, it was not feasible to include explanatory material that would help members fully understand the model legislation. This explanatory material is essential to understanding the political and legislative implications of the model legislation.
Second, the Handbook recognizes that any particular model bill is unlikely to meet the needs of legislators who face widely different statutory and political environments. Although legislators in these different environments may share the same philosophy and long range goals, model legislation that might be feasible in some states may be hopelessly quixotic in others.
For this reason, the Handbook includes different approaches to the same issue. In some cases, it assumes a statutory environment that is contrary to long-standing ALEC policy. For example, some states require public employees to pay agency fees to unions from the beginning of the employment relationship. In these states, the public employee unions do not have to bargain for agency fees; the unions are the beneficiaries of them by legislative edict.
Agency fee requirements are contrary to ALEC's Right to Work policy, which would prohibit mandatory payments to unions as a term or condition of employment. To be helpful to ALEC members in agency fee states, the Handbook includes model legislation that can be introduced in agency fee states and may improve matters there even though the agency fees are not repealed. In short, the Handbook avoids a one size fits all approach to public sector labor relations. Regardless of whether any of the model bills in the Handbook are eventually enacted, the multi-option approach appears to be the most feasible way to meet the needs of all ALEC members.
Chapter 2 provides an overview of the main problems giving rise to the model legislation in this Handbook. The first part of this overview points out how these problems emerged under the National Labor Relations Act (NLRA), which regulates labor relations in the private sector. The concluding section of Chapter 2 explains why state legislators should be especially sensitive to union security issues in state and local government. Although Chapter 2 can be omitted by readers who are knowledgeable about public sector labor relations, it should be especially helpful to legislators who must grapple with a multitude of topics and issues, often within a very brief period of time.
The following seven chapters begin with a model bill that addresses one or more of the issues raised in Chapter 2. Each model bill is followed by a brief discussion that points out some variations that may be appropriate and/or ways to counter the arguments against the bill that can be expected.
Although state and local public sector bargaining is governed by state law, several constitutional issues raised by the state laws have already emerged from private sector cases under the National Labor Relations Act (NLRA). In addition, the state labor boards that interpret and administer the state bargaining laws are heavily influenced by National Labor Relations Board practice and precedent. For these reasons, state legislators should be cognizant of the key concepts in the NRLA as well as the court cases that bear on worker rights. This chapter is intended to provide a brief overview of these matters, especially as they relate to the model legislation set forth in subsequent chapters.
Congress enacted the NRLA in 1935. The public policy announced in the Act continues today and is based on the assumption that the public interest is best served by having employees organized by labor unions. The glue that holds the policy together consists of special powers, privileges and immunities granted to labor unions, such as the power to privately tax workers in the form of mandatory fees as a condition of employment.
Based on the assumption that unions were good for everyone, special features of the law were created to protect unionization at the expense of individual employee rights. Three particular provisions of the NLRA violate or infringe upon individual rights: exclusive representation, union security, and mandatory collective bargaining. These provisions often work in combination to place employees in an environment in which their individual rights are subordinated to enhance union power. It was assumed, often contrary to fact, that such enhancement would benefit everyone represented by the unions.
When a union is selected to represent employees in an "appropriate" unit of workers, the union alone has the legal authority to negotiate for all employees, including those who neither voted for nor joined the union. No other union, individual or representative may negotiate terms and conditions of employment, and the individual employee is legally deprived of the right to represent his or her own interests. In labor terminology, the union is an "exclusive representative." The U.S. Supreme Court upheld exclusive representation in a 1944 case, J.I. Case v NLRB.2
Under exclusive representation, the union interests take precedence over the interests and rights of nonunion workers. The NLRA and related labor laws are usually portrayed as benefiting employees, but legally and practically, the laws take away an individual's right to price his or her own labor and to work under conditions which are personally agreeable. The sale of an employees labor should be a private, nongovernmental activity. As it is, unions are voluntary, private organizations empowered by law with the legal power to advance their interests, even when the union's interests conflict with the personal goals of those employees whom they exclusively represent.
Unions typically defend exclusivity as a principle of majority rule similar to the practice in congressional elections. A member of the House of Representatives represents all citizens in a district, not just those who voted for the representative, so the argument goes.
The democratic majority rule argument sounds attractive, but in the union setting, it is not a valid argument. Unions are private institutions. They make decisions on private, nongovernmental matters in the workplace. In other countries, notably France, exclusivity is not mandatory and several unions may compete in the same workplace. Majority rule is less burdensome to individual workers in places where exclusivity is not mandated. In any case, we should not allow majorities in private voluntary organizations to deprive non-members of their basic individual rights.
Freedom for individual employees demands a clear line of distinction between private and governmental actions. Individuals should be empowered to make choices in accordance with their best interests -- to go along with the majority or not -- exercising either choice without penalty. But under the NLRA, collective bargaining contracts penalize a worker who refuses to side with the majority under threat of losing his or her job. Exclusive representation is equivalent to granting governmental coercive power to unions over individual employees who are or might be harmed by union actions.
As a quid pro quo for the right of exclusivity, the union is required to represent all employees in the bargaining unit, whether or not they are union members, fairly, in good faith, and without hostility or discriminatory or arbitrary conduct. The unions duty of fair representation is a federal obligation that was judicially created, in the 1944 Railway Labor Act (RLA) case of Steele v Louisville & Nashville Railroad.3 There the Court held that the RLA implicitly "expresses the aim of Congress to impose on the bargaining representative...the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them."
In Ford Motor Company v. Huffman (1953), the Supreme Court applied the duty of fair representation to the NLRA. In 1962 the NLRB decided Miranda Fuel Co., holding that a breach of the duty of fair representation amounted to an unfair labor practice under the NLRA. The Board decided that "Section 7 [of the NLRA]...gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment."4 Employee rights are founded on this theory of the unions duty of fair representation.
Union security provisions generally refer to those clauses of a labor contract which protect the union's status under the agreement. Such contract clauses are not compelled under the law, but they can be negotiated by an employer and a union. Such clauses bind individual employees only when an agreement is reached between a workers employer and union.
Union security provisions are frequently classified as either open shop, agency shop, or union shop. An open shop exists when there is no union security clause. The agency shop, common in government employment, does not require union membership but does require the payment of a union representation or service fee. The union shop requires union membership in good standing for continued employment.
A union shop requires employees to join the union within a specified period of time and remain members "in good standing." Thus, an employee need not be a member of the union to be hired. (The so-called closed shop, which required an employee to be a member of the union in order to be hired, was outlawed by the enactment of the Taft-Hartley amendments in 1947.) As a condition of continued employment, however, the employee must join the union within a designated period -- 30 days for industry generally, 60 days for railroad and airline employees, and 7 days for construction work. Under the law, the requirement to "join a union" and to remain a member "in good standing" under a union shop clause has largely meant that the employee must tender regular dues and initiation fees.
An employee who refuses to voluntarily join the union or to pay dues under a union security agreement must be discharged upon the union's request to the employer. Nonetheless, an employee who offers to pay dues and the appropriate fees but is denied union membership for any reason has satisfied the prerequisites of the law under a union shop proviso. Such an employee cannot be discharged because of his or her non-membership in the union.
In NLRB v General Motors Corp., the Supreme Court defined the extent of union membership that could be required under union shop agreements.5 The Court held that the law in Section 8(a)(3), allowing the employer and the union to condition continued employment of the employee on union membership, was limited to requiring the payment of union membership fees. Thus an employee who pays union fees as a non-member is entitled to keep his or her job as if he or she were a full member. So long as union fees are paid, the employee cannot be discharged for any other union-imposed obligation. The only obligation for membership that can be placed upon an employee under Section 8(a)(3) is financial membership. The Court held that the term "membership" is, at its core, financial support of a union.
The union shop agreement is an exception to the freedom granted an employee under the NLRA, Section 8(a), to join or not join a labor organization. Adoption of the union shop between an employer and a union is made subject to state law under Section 14(b) of the Taft-Hartley amendments of 1947. Thus the union shop, the agency shop, and other forms of union security provisions are lawful, provided that they are not prohibited by state statute. Twenty-one states, mostly in the South and West, have enacted laws prohibiting labor agreements that compel union membership. States with such laws are commonly referred to as "Right-to-Work" states.
Unions justify imposing financial burdens on all workers, whether members or not, on the theory that unions must represent all workers in the bargaining unit by law. Therefore, the protections and benefits the union negotiates benefit all, and it is only fair that each employee pay for the costs of this representation. This is the so-called "free rider" argument. Of course, this assumes that employees want union representation in the first place when many do not.
Unions will not often acknowledge that they lobbied for and ultimately won the right of exclusive representation. This is an important union goal because it protects the union from competition from other organizations and persons desiring to represent employees. Without exclusive representation, there could be no free riders because employees would retain the choice of whether to be represented or not. The burdens unions claim resulting from exclusive representation would disappear if the unions did not represent employees who do not want union representation. The free riders are really forced riders who are compelled to subsidize union activity and contribute to policies and decisions to which they are opposed.
Under exclusive representation the union has the sole right to negotiate the terms and conditions of employment with management. Employers are required by law to meet with the union and negotiate its proposals in good faith, as long as the proposals are among the mandatory subjects of bargaining.
Mandatory subjects of bargaining are those matters that by law must be negotiated by labor and management when insisted upon by either party. In addition to wages and hours of work, mandatory subjects include fringe benefit programs, seniority, discipline and other issues related to employment. Union security arrangements are also among mandated subjects.
Unions customarily seek a guarantee that employees either become full union members or pay a representation fee (often the equivalent of membership dues and initiation fees) to the union. Employers usually agree to these terms. Employers typically consider union security provisions to be a no-cost item that can be traded for economic concessions of greater value to the employer. The employer sometimes believes its business might be injured by rejecting the union demand. In either case, the employer becomes the enforcer for the payment of union dues because it will discharge an employee at the union's request for failure to pay dues according to the agreement. Note, however, that an employer can be charged with an unfair labor practice if it complies with a union request to discharge an employee, when the employer has reason to believe that the union failed to follow proper notification and fee objection procedures.
Bargaining in good faith requires the parties to meet at reasonable times; to meet with minds open to persuasion and a sincere desire to reach agreement; avoid presenting proposals on a "take it or leave it" basis; and take no actions designed to weaken the unions status as the exclusive bargaining agent while negotiations are in progress.
"Good faith" is generally evaluated by assessing the compromises and concessions made by the parties during negotiations. The employer's duty includes the obligation to provide the union with information upon request that is "relevant and necessary" to enable the union to bargain intelligently and effectively. The employer is not compelled to surrender confidential or proprietary information, such as its profits and losses, but it can be required to do so if it claims at the bargaining table that it is financially unable to meet the union's demands.
The employer's duty to bargain precludes it from taking "unilateral action," that is, changing the terms or conditions of employment without the union's permission. For example, the employer cannot put a wage increase into effect until the union agrees, unless the employer has a demonstrated past practice of granting periodic pay raises as a matter of course. The commission of an unfair labor practice, even a highly technical one, is often cited to show a lack of good faith in bargaining.
The government's subjective judgment of the content and course of collective bargaining distinguishes this process from the principles of common law commercial contracts. Laws providing for exclusive representation, union security, and mandated collective bargaining distort the American contractual system and convert it into a governmentally sanctioned, supervised, and often times coercive system that neglects the principles of private, voluntary exchange.
In recent years, however, individual rights have reemerged as a significant consideration, especially in areas of labor law where unions power was nearly absolute.
Machinists v Street was the first U.S. Supreme Court case imposing limitations on a union's use of non-member fees collected under a union shop.6 The case alleged that the Railway Labor Act, which was the forerunner of the NLRA on the relevant issues, was a violation of the U.S. Constitution. In Street, employees who were members of the union under a union shop clause complained that the union was compelling them to pay dues that were used to support political and ideological activities with which the employees disagreed. The Georgia state courts enjoined enforcement of the union security clause, holding that it violated the United States Constitution to the extent that it compelled the employees to finance objectionable political causes.
The United States Supreme Court thereafter declined to rule on the constitutional issues. Instead, the Court concluded that legislative history clearly established that the RLA prohibited unions from expending an employees fees on political causes once the employee had informed the union of his or her objection to such expenditures. Because the use of employees' fees to finance political programs was not a use that defrayed collective bargaining expenses, the statutory purpose did not justify compelling employees to fund political causes that they opposed.
One year after Street, the Court in Railway Clerks v Allen broadened the rule developed in Street by holding that a dissenting employee need not state each particular political cause that he or she was opposed to financing.7 Instead, employees would be protected by objecting to the use of their fees for any political endeavor.
The Court in Street and Allen only restricted the unions expenditures of fees on political causes. In another RLA case, Ellis v Railway Clerks, the Court addressed other impermissible uses of dissenting non-members' agency fees.8 The Ellis Court developed a test that asks "whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive bargaining representative."
In Ellis, the dissenting employees challenged a variety of union-related activities. Applying the test, the Court found that:
Thus the Court in Ellis held that lobbying activities, organizing efforts, and certain union publications were not reasonably necessary to implement the unions duties as an exclusive representative.
The Court has also applied its general limitation on union dues collected from public sector employees. Abood v Detroit Board of Education is the first case involving union security arrangements in government employment.9 In this case, Detroit public school teachers who were opposed to public sector unionism challenged the constitutionality of agency fee clauses and the use of the collected fees to finance political and ideological causes. The agency shop clause in the collective bargaining agreement was enforceable under Michigan state law, the Public Employee Relations Act (PERA), which specifically authorized agency shop arrangements.
Relying on its prior decision in Street, the Court upheld the validity of the state-authorized agency shop clause but additionally held that the First and Fourteenth Amendments to the U.S. Constitution prohibited unions from using objecting employees' dues to finance political or ideological causes unrelated to collective bargaining. The Court established the principle that the U.S. Constitution -- not a statute such as the RLA -- bars public sector unions from imposing mandatory dues for political purposes when a union member objects.
Chicago Teachers Union v Hudson is the Supreme Court public employee case which most thoroughly sets forth the constitutional requirements for challenging agency shop fees.10
The Court went on to rule that the internal procedures of the union were constitutionally inadequate because all three steps of the review of challenges were fully controlled by the union and its officials. The union bears the burden of justifying contested expenditures (those not clearly allocated to either chargeable or nonchargeable purposes) promptly and through an impartial decisionmaker. The Court suggested that two procedures would satisfy this requirement: prompt judicial or administrative review or an expeditious arbitration by a neutral arbitrator (not by the unions unilateral choice of arbitrator).
Despite the rulings in Abood and Hudson, the Court had to revisit the subject of permissible union expenditures in Lehnert v Ferris Faculty Association.11 The Court in Lehnert held that the public sector union representing faculty members could not charge objecting dissenters for the costs of the union's lobbying efforts and political activities. Despite the unions argument that the lobbying and political activities were aimed at increasing public funding and support of teaching, the Court concluded that the First Amendment precluded the union from charging dissenters for these practices because these activities were too attenuated to justify compelled support.
In the landmark decision, Communication Workers v Beck, the Court held that for workers covered by the NLRA, the "financial core" obligations of membership are limited to union activities "germane to collective bargaining, contract administration, and grievance adjustment."12 The Court held that the union could not collect dues from objecting employees for the costs of organizing employees of other employers, lobbying for labor legislation, or participating in social, charitable, or political events.
The Court in Beck recognized that the NLRA and RLA are essentially equivalent. Consequently, the Court believed that the two sections of the law permitting union shop agreements were enacted for the same purpose and that they should be interpreted in a parallel manner. Therefore, the NLRA should also be interpreted to prohibit extracting and expending funds collected from non-members on activities unrelated to collective bargaining, contract administration and grievance adjustment.
In the Beck case, about 79% of the dues normally collected could not be legitimately charged to objecting nonmembers. The district court in Lehnert (the Ferris State University case) found that 90% of dues were being spent in furtherance of non-chargeable activities and applied to public sector unionism the principles embodied in Beck.
Activities such as organizing employees of other employers, lobbying for labor legislation, or participating in social and political events cannot be charged to the employee exercising rights pursuant to Supreme Court precedent.
The National Labor Relations Board (NLRB) has been slow to enforce and protect union nonmembers' Beck rights. After sitting on hundreds of employee unfair labor practice charges since the Supreme Courts 1988 Beck decision, the NLRB in 1995 issued its lead case decision in interpreting the Supreme Courts eight-year-old ruling.
In California Saw and Knife Works, the Board held that if a non-member employee chooses to file a Beck objection, the employee must be apprised by the union of the following information:
The purpose for providing the objectors with this information is to allow an employee to decide whether there is any reason to challenge the union's dues reduction calculations. Also, when a union seeks to require an objecting employee to pay dues under a union security clause, reasonable procedures must be available for filing challenges to the amounts charged. Any procedures not shown to be arbitrary, discriminatory, or in bad faith will satisfy the union's obligations under Beck.
In interpreting the NLRA, the Board has refused to extend all of the procedural safeguards required under the Hudson ruling, which is limited to public employees. The cases and law are developing, and employee rights may be expanded by the decisions of the courts or by interpretations by the Board itself.
While each of the three major Supreme Court cases deals with a different segment of the workforce (Lehnert with the rights of public employees under the Constitution, Ellis with railway and airline employees under the RLA, and Beck with the rights of most other employees under the NLRA), the principles behind employee dues protections are essentially the same. The legal theories supporting these cases vary slightly, and the procedural requirements are different, but the underlying principle is that union dissenters cannot be compelled to contribute monetary support to those activities which are not germane to the unions function within the workplace.
"Beck rights" is the shorthand denomination for the rights of all non-union members employed pursuant to union security agreements to not pay certain periodic payments of dues and initiation fees. This chapter examines the following:
The purpose of this chapter is to summarize Beck rights and options among workers, employers, and unions. Armed with more complete knowledge, union members can consider the needs and priorities of their unions and still act in their own best interest to exercise greater freedoms of speech. Employers can avoid certain risks by learning more about Beck rights, and there are positive strategies for unions in dealing with Beck issues.
Illustrated in the above table [available in PDF version only], the public strongly supports measures aimed at ensuring that union workers grant their permission before union leaders spend their dues for politics. A May 1999 poll released by the Evergreen Freedom Foundation, a Washington state think tank, said that 78 percent of Washington state residents believed that unions should be required to disclose political expenditures made with membership dues.
The preceding analysis is only partially applicable to public education. The reason is that the NLRA does not apply to labor relations in state and local government. The unions, especially the unions of state and local public employees, have sought legislation that would render the NLRA applicable to state and local public employment, but this is not likely to happen, at least in the near future. State legislation governs labor relations in state and local government and, as a result, there is wide variation among the states even though NLRA precedent is followed on several issues. Sometimes states authorized collective bargaining for some public employees, such as teachers, but not for others, such as police or firefighters. Whether or not state legislation established collective bargaining rights for all state and local public employees or just for teachers, we shall refer to it as teacher bargaining legislation.
One feature of state bargaining legislation generally has gone largely unnoticed although it is extremely important. The state bargaining laws were enacted largely at the behest of public sector unions. In drafting the legislation, the unions usually adopted the concepts and terminology in the NLRA. Although the state laws as finally enacted did not always track the NLRA, they usually did so to a considerable extent. Perhaps the single most important difference was that the state legislation drafted by the public employee unions and introduced in the legislatures by their supporters did not include the safeguards against union abuse of its role as exclusive representative. This omission was compounded because many legislatures lacked the resources to undertake a thorough analysis of the union sponsored legislation. The upshot was and is that state legislation provides virtually no protections whatsoever for public employees vis-a-vis' their unions. This oversight underscores the importance of state action to protect the rights of public employees.
There is widespread agreement that unions should not be allowed to spend dues for political purposes against the wishes of the unwilling members. When agency fees are involved, the unions are legally prohibited from spending any part thereof for any purpose other than collective bargaining, grievance processing, and contract administration; however, because of the huge costs facing agency fee payers who try to resist paying for other union expenses, and the failure of the courts and legislatures to impose any penalties against unions which overcharge agency fee payers, excessive agency fees are the norm, not the exception.
For these reasons, the states should address agency fee issues as soon as possible. There is little disagreement on the basic principle, but a great deal of disagreement on its implementation. This is especially true in public education, where there is little, if any, difference between political action and public sector bargaining. Both are intended to persuade legislative bodies such as school boards to adopt various policies. The same strategies and tactics utilized in political campaigns, such as demonstrations, telephone banks, and advertisements, are also used in collective bargaining campaigns. In short, the close relationship between political action and public sector bargaining is another strong reason to protect public employees against the abuse of union power.
This model bill prohibits the payroll deduction of monies used for political purposes. It also establishes penalties for a violation of this section.
This Act shall be known as the Political Funding Reform Act.
This legislature finds and declares:
A. That it is in the interest of this State's citizens to ensure that government resources, including public employee time, public property or equipment, and supplies be used exclusively for activities that are essential to carrying out the necessary functions of government;
B. That necessary governmental functions do not include using government resources to confer a political benefit or advantage on any private individual or organization, including, but not limited to, public employee unions and their members;
C. That using government resources in any way to promote, support, or enhance the political activities of any private individual or organization, above that of other citizens or private organizations, is not a necessary or desirable function of government; and
D. Therefore, it is the public policy of this State to prohibit the use of any government resources to collect or assist in the collection of political funds or to promote or assist in the political activity on behalf of any private individual or organization.
A. For the purposes of this Act, "public employer" means any state or local government, government agency, government instrumentality, special district, joint powers authority, school board or special purpose organization that employs one or more persons in any capacity.
B. For purposes of this act, all money shall be deemed to be "political funds" if any portion thereof is expended upon, or commingled with funds used for political activity, including, but not limited to:
C. The terms used in this subsection shall have the same meaning as under Section 501(c)(3) of Title 26, United States Code, and regulations promulgated by the Secretary of the Treasury thereunder.
D. This section shall not apply to activities that are necessary to fulfill statutory obligations to inform the electorate and/or the public about the candidates or issues to be voted upon in a forthcoming election.
A. A public employer is prohibited from collecting or deducting or transmitting political funds within the meaning of this section.
A. For a period of two years, no public employer shall collect, deduct, or assist in the collection or deduction of funds for any purpose for a person or organization if, in violation of this article, the person or organization has:
B. Any employee whose wages have been deducted in violation of the provisions of this article may bring suit in a court of competent jurisdiction to obtain injunctive relief against the violator or person or public employer threatening violation. If the state enjoys sovereign immunity, nothing in this section shall be considered or otherwise construed to waive, or in any way abrogate such immunity.
An employee whose wages have been deducted in violation of this article may bring suit in a court of competent jurisdiction to recover damages equal to:
C. In any judgement for the plaintiff intended to enforce this article the court may award reasonable attorneys' fees as part of the judgement.
Any written or oral agreement, understanding, or practice between a public employer and any individual or organization that is in violation of the provisions of this article shall be deemed void on the effective date of this legislation, or ninety (90) days after its passage, whichever is later.
If any phrase, clause, or part of this article is found to be unconstitutional by a court of competent jurisdiction, the remaining phrases, clauses, and parts shall remain in full force and effect.
The purpose of the Political Funding Reform Act is to end government involvement in political fundraising. This objective is achieved through legislation that prohibits payroll deduction of political contributions (hereinafter referred to as "PAC funds" or "PAC contributions") in the public sector.
Efforts to reform the laws and regulations governing political contributions, whether in cash or in kind, are commonplace. Past efforts have generally been ineffective; despite the often justified cry that "government is for sale," legislation has been ineffective as the costs of political campaigning have reached unprecedented levels.
There are some obvious reasons why efforts to regulate or limit political contributions have failed. One is that incumbents in political office are reluctant to impose limits or obstacles on their sources of support. Another is that the rationale for limitation or regulation varies widely, hence the support for it does also.
This model bill addresses political contributions by state and local employees. There are several reasons why the model legislation applies only to this group:
Payroll deductions for political purposes by private sector employees and their unions are governed by federal legislation. For example, payroll deductions are a mandatory subject of bargaining under the National Labor Relations Act (NLRA); federal labor law probably preempts state legislation on payroll deduction per se in the private sector. To put it as bluntly as possible, state legislation on private sector payroll deductions of political funds will probably violate federal preemption in the field of labor law.
States cannot regulate payroll deductions by or for federal employees. States do have the authority to regulate, even to the point of prohibition, payroll deductions for political purposes by state and local public employees. This is an immensely important but widely neglected subject relating to campaign finance reform.
In short, political spending by state and local public employees is subject to state regulation in ways and for reasons that do not apply to private sector and federal employees. This distinction raises the fundamental issue that is addressed by the proposed model legislation: What should be the restrictions, if any, placed on payroll deduction of political contributions by state and local public employees? The emphasis on payroll deduction is extremely important. Nothing in the model legislation would prevent or prohibit state and local public employees from contributing to candidates, political parties, or legislative measures they wish to support. The model bill deals only with government participation in political fundraising through payroll deduction, that is, through the involvement of state and local public employers. Payroll deduction of political contributions is not the only mode of government participation in political fundraising, but it is often the most significant.
The model legislation proposed here does not purport to establish contribution limits, reporting and disclosure requirements, or other aspects of political contributions by public employees. Indeed, this is one of the strengths of the proposed legislation, since it underscores the fact that the legislation seeks only to eliminate or reduce government participation in political fundraising.
Note that the Political Funding Reform Act differs significantly from the state "paycheck protection" acts introduced in various state legislatures. First, the paycheck protection acts are intended to apply to both private and public sector employees, where the Political Funding Reform Act applies only to state and local government employees. Furthermore, paycheck protection acts require employees to authorize political contributions annually, in contrast, such contributions are not authorized at all in the Political Funding Reform Act.
The Political Funding Reform Act is based on the idea that government agencies should not participate in political fundraising for any candidate, party, or political body; such fundraising is not an appropriate role of government. Consequently, the issue of annual employee authorization does not arise, or should not when public agencies are the employers. In contrast, paycheck protection bills are intended to make sure that employees political contributions are consciously made, hence the requirement of annual reauthorization. Such annual reauthorization is irrelevant in the public sector if government agencies should not be collecting political funds in the first place.
Finally, in order to avoid the objection that the effective date of the Act would constitute an impairment of contract the expiration clause would also include as an alternative: or upon the expiration date of any contract including such agreement understanding or practice entered into at least 180 days before the effective date of this Act, whichever is later.
Obviously, the politics of the two issues will also differ. Most private sector employees are likely to agree that government agencies should not be political fundraisers. In proposing the Political Funding Reform Act, it is not necessary to assert that the purpose of the legislation is paycheck protection. The issue is protection of the public from illegitimate government action, not protection of union members from illegitimate union action.
Note: In no way does ALEC endorse agency fee requirements. However, ALEC realizes that full employee choice in the workplace is not currently an available option in every state. Therefore, ALEC is suggesting this legislation for states that currently have agency fees, to alleviate the effects of such requirements.
The purpose of this act is to: 1) limit the amount of compelled agency fees which may be exacted from public employees as a condition of continued employment; 2) provide public employees compelled to pay agency fees as a condition of continued employment with an expeditious way to protect their rights to their pro rata share of union expenditures; and 3) minimize litigation over the appropriate share of union dues that is allocated to collective bargaining, contract administration, and grievance adjustment; provided, however, that nothing herein expresses or implies approval of laws requiring workers to pay unions for representation they do not want.
This Act shall be known as the Employee Rights Reform Act.
This legislature finds and declares:
A. That many public employees are required against their will to pay agency fees for representation they do not want; and
B. The U.S. Supreme Court has held that the amount of agency fees must not exceed the fee payer's pro rata share of union expenses for collective bargaining, contract administration, and grievance processing; and
C. That fee payers are unable to protect themselves against excessive fees unless fee payers have prompt access to union audited financial statements and other books and records; and
D. That legislation is imperative to provide such access and thereby protect agency fee payers from excessive fees.
A. "Agency fee payer" means an individual who is not a union member, but is employed in a bargaining unit represented by an exclusive representative that has negotiated a union security or agency shop clause subjecting all represented employees to the obligation to either maintain membership in the exclusive representative, or pay some portion of union dues as a condition of continued employment with the public employer. No agency fee payer shall be deemed to have consented to any exaction of agency fees as a condition of continued employment.
B. "Available" means available for inspection at no cost upon written request at the local office of the exclusive representative.
C. "Chargeable activity" means an expenditure or activity for purposes of collective bargaining, contract administration, and grievance adjustment undertaken by the exclusive representative, or an affiliate of the exclusive representative, directly on behalf of the bargaining unit in which the agency fee payer is employed.
D. "Expenditure" means all union expenditures of funds in any amount.
E. "Nonchargeable activity" means an expenditure or activity for purposes other than collective bargaining, contract administration, and grievance adjustment undertaken by the exclusive representative, or an affiliate of the exclusive representative, on behalf of the bargaining unit in which the agency fee payer is employed, including, but not limited to, organizing activities, social activities, and activities to maintain the exclusive representatives corporate existence.
F. For the purposes of this Act, "public employer" means any state or local government, government agency, government instrumentality, special district, joint powers authority, school board or special purpose organization that employs one or more persons in any capacity.
A. Public employers negotiating and enforcing union security or agency shop clauses in their agreements with an exclusive representative of its employees shall exact from nonmembers not more than their pro rata share of the exclusive representative chargeable costs, as set forth herein. Under no circumstances shall a public employer deduct full union dues from the wages of any employee not specifically authorizing such deductions.
B. Exclusive representatives of public employees negotiating union security or agency shop clauses in their agreements with public employers shall, as a condition of enforcement of such agreements:
C. To fulfill the purposes of this Act, exclusive representatives shall allocate all public employee time and expenditures as either chargeable to agency fee payer or nonchargeable to agency fee payers not later than fourteen (14) days after the date upon which the activity occurs. All activities and expenditures not so allocated within the required period shall be deemed nonchargeable to agency fee payers.
D. As to determining the chargeablility of political and ideological activities and expenditures, the exclusive representative shall apply the legal standards set forth in controlling court decisions. As to determining the chargeability of all other activities and expenditures, the exclusive representative shall limit the chargeable activities to those collective bargaining, contract administration, and grievance adjustment activities undertaken for, or on behalf of the bargaining unit within which the agency fee payer is employed. It is the purpose of this section to limit chargeable expenditures to a greater degree than set forth in the Supreme Courts decision in Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991).
E. All allocations of activities and expenditures of an exclusive representative shall be made available to represented employees no later than twenty-eight (28) calendar days after the activity or expenditure. Any activity or expenditure not made available for review within such period shall be deemed nonchargeable to agency fee payers.
F. To the extent that the exclusive representative may, by virtue of its affiliation with a regional, state, national, international, or any other form of affiliated labor organization, seek to compel represented employees to subsidize the activities of such affiliate or affiliates, similar records must be provided to, and maintained by the exclusive representative. Payments made by an exclusive representative to any such affiliate not maintaining and providing such records to the exclusive representative shall be deemed nonchargeable to agency fee payer.
G. For activities or expenditures continuing for more than fourteen (14) days, the exclusive representative shall provide an estimate of the duration and anticipated allocation to chargeable and nonchargeable costs in records made available for review pursuant to the terms of this section.
H. This section shall be liberally construed to provide represented employees with timely information about the allocations of activities and expenditures of the exclusive representative as chargeable and nonchargeable to agency fee payers.
A. An exclusive representative failing to prepare and make reports available as set forth herein shall be deemed to have surrendered its authority to collect from nonmembers agency fees for a period of one (1) month. After two such occurrences, the exclusive representative shall be deemed to have surrendered its authority to collect from nonmembers agency fees for a period of one (1) year.
B. Upon sworn written notice to a public employer of an exclusive representative's failure to provide a timely opportunity for inspection, a public employer shall suspend deductions of agency fees from all agency fee payers for a period of one (1) month. After two (2) such occurrences, the public employer shall suspend deductions of all agency fees from all agency fee payers for a period of one (1) year.
C. A public employer failing to comply with this section shall be liable to all agency fee payers for an amount equal to twice the fees wrongfully held, plus the costs (including attorneys fees) of any action to recover such fees.
The provisions of this Act are severable. If any provision of this measure or its application to any person or circumstance is held invalid, that invalidity shall not affect any other provision or application of this measure which can be given effect without the invalid provision or application. If any provision of this measure is held to be in conflict with federal law, that provision shall remain in full force and effect to the maximum extent permitted by federal law. For purposes of this section, "provision" shall mean any section, subdivision, sentence, phrase or word.
This Act shall be liberally construed to accomplish its purposes. Compliance herewith is not intended to, nor is to be construed as, substitute for compliance with "the constitutional requirements for the...collection of agency fees." Teachers Local No. 1 v. Hudson, 475 U.S. 292 (1986).
The Employee Rights Reform Act would be applicable only in states that mandate agency fees or allow public sector unions to negotiate them. The act would not, therefore, be applicable in the Right to Work states, since these states prohibit employers and labor organizations from requiring membership or payments to the union as a term or condition of employment.
Legislators should bear in mind that agency fee cases are a major source of labor law litigation; at any given time, there may be scores if not hundreds of legal challenges to agency fees. One reason for the massive litigation on the subject is the complexity of challenging union determinations of union expenses that can be charged to nonmembers. By U.S. Supreme Court decision, the unions can charge nonmembers only for their pro rata share of the costs of collective bargaining, grievance processing, and contract administration (hereinafter, "collective bargaining"). All other union expenses are not chargeable, but it is extremely difficult for agency fee payers to challenge union allocations between chargeable and nonchargeable costs.
At the present time, these allocations are based upon the unions determination of these charges for the previous year. Thus, to determine the agency fee for 1999-2000, the union relies on its determination of the chargeable/nonchargeable expenses for 1998-1999. To challenge the unions determination, the agency fee payer in 1999-2000 must show that the union's 1998-1999 allocation to chargeable costs was greater than the actual union expenditures for them in 1998-1999. Thus, the challenges take place long after actual expenses are incurred, rendering it extremely difficult to monitor the unions determination of expenses that may be charged to agency fee payers.
NEA affiliates address this problem internally in the following way. Key union staff members, such as UniServ directors, submit time sheets on a weekly or biweekly basis. These time sheets show how the union staff members allocate their time between chargeable and nonchargeable time. The union then uses these allocations to estimate its overhead expenses, such as for clerical/secretarial help and supplies that can be charged to agency fee payers. This is the only purpose served by these internal estimates of chargeable time.
The Employee Rights Reform Act would not require any new paperwork by local unions. It would only require that the unions make their estimates available to members and nonmembers in timely fashion. After all, if the allocations are made available in timely fashion within a few weeks instead of a year or more, more accurate estimates are much more probable. Knowing that the parties who are adversely affected by excessive estimates of chargeable costs can monitor these estimates promptly will undoubtedly be highly conducive to accurate estimates. Furthermore, providing penalties for excessive estimates will also be highly conducive to this outcome.
Agency fee states are typically strong pro-union states, and there is no doubt that the public employee unions will vigorously appeal any effort to rein in their excessive agency fees. Nevertheless, in closely divided houses of the legislature, it may be possible to create a majority willing to provide greater deference to individuals required to pay excessive fees.
Any hearings on the Employee Rights Reform Act should thoroughly review how the unions currently arrive at their estimates of expenses chargeable to nonmembers. Note that the estimates are made by individuals who have a strong interest in resolving any doubts in favor of chargeability. This is a strong reason to make sure that the estimates are made available immediately to employees who are or may be adversely affected by them.14
This model bill prohibits the payroll deduction of membership dues by public employers.
This Act shall be known as the Public Employer Payroll Deduction Policy Act.
The legislature finds and declares:
A. Employee organizations have no inherent constitutional, nor statutory right, to deduct membership dues for any purpose by automatic payroll deductions;
B. That it is in the interest of this State's citizens to ensure that government resources, including public employee time, public property or equipment, and supplies be used exclusively for activities that are essential to carrying out the necessary functions of government;
C. That necessary governmental functions do not include using government resources to confer the special convenience of deducting membership dues from members' and non-members' paychecks for any private individual or organization, public employee unions and their members;
A. For the purposes of this Act, "public employer" means any state or local government, government agency, government instrumentality, special district, joint powers authority, school board or special purpose organization that employs one or more persons in any capacity.
No dues, fees, assessments or any other automatic payroll deductions by public employers from public employee payroll compensation shall be allowed for transmission to any public employee organization, any intermediary, or a private individual, other than for primary and supplemental pension plans, life, health and other employee benefits, or contributions made to 501C(3) charitable organizations through a workplace givings program.
The Public Employer Payroll Deduction Policy Act sets forth a flat prohibition of dues deduction by state and local public employers. The rationale is a narrow but important one, to wit, that payroll deduction of dues is not an appropriate use of government resources. Obviously, this is an even broader restriction than a prohibition against the payroll deduction of contributions to union PACs.
Several objections to the proposed legislation can be anticipated. Some would be applicable only in states that have not enacted public employee bargaining laws. In the states that have enacted such laws, payroll deduction of dues is a mandatory subject of bargaining. A public employer who refused to accept payroll deduction of dues would be virtually certain to be subject to adverse rulings and/or arbitratral decisions.
In the states that have not enacted bargaining laws, the proposed legislation would be opposed by independent unions as well as unions with national affiliates, such as the NEA and AFT. A fall-back proposal whose legality has been upheld is to limit payroll deduction to in-state organizations only.
There is also the possibility, if not the likelihood, that the proposed act would be interpreted as prohibiting payroll deduction for charitable organizations, such as the Community Chest or the United Way.
Another potential weakness is that the proponents should be able to state just what are the costs of payroll deduction. An argument against the legislation will be that the costs are de minimis. The unions could offer to pay the costs, which would leave the proponents of the legislation in a weak position on this issue.
This Act requires labor organizations to establish separate funds for political purposes, establishes registration for the fund, establishes certain criminal provisions governing a labor organization's political activities, and prohibits employees from authorizing automatic payroll deductions for contributions to a labor organizations political committee or fund.
This Act shall be known as the Labor Organizations Deductions Act.
This legislature finds and declares that:
A. The integrity of the political process in the state of [insert state] can only be maintained through the voluntary and informed participation of its citizenry. Political contributions which are made without the knowing and informed consent of individuals, made freely without fear or retaliation, penalty or loss of rights, causes injury to the political process.
B. Workers have a right to control their own political contributions and a right to refuse to make political contributions without fear of retaliation, penalty or loss of statutory or other rights.
C. Taking political contributions from workers without their fully informed consent violates these workers' rights. Such violations injure the workers, undermine the legitimacy of the political process and can have a corrupting effect on the electoral and governmental process.
D. Political contributions taken from workers by deductions from their compensation creates a special danger that such contributions are unauthorized and compelled, in violation of the workers' rights. In addition, political contributions by compensation deduction create special danger of erroneous public perceptions about workers' and employers' political views.
E. Workers whose political contribution rights have been violated cannot easily stop violations or vindicate their rights, since the amounts involved are usually small and legal proceedings can be long, costly, and difficult. Similarly, the State cannot easily combat the public perception of coercion and the loss of public trust and legitimacy caused by violations of workers' political rights.
F. In enacting this measure, it is the purpose of this Act to protect workers' rights to control their own political contributions, to ensure that workers' political contributions by compensation deductions do not indicate that workers and employers support political activities which they do not, to preserve public trust in the electoral process, and to give workers both the means to prevent the deduction or use of political contributions in violation of these principles and the right to receive compensation for such violations.
A. "Political Fund" means the separate segregated fund established by a labor organization for political activities according to the procedures and requirements of this part.
B. "Labor organization" means any association or organization of employees, and any agency, employee representation committee, or plan in which employees participate that exists, in whole or in part, to advocate on behalf of employees about grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment, including, but not limited to, all employee associations and unions for employees of public and private-sector employers.
C. "Political activities" means lobbying, electoral activities, independent expenditures or contributions to any candidate, political party, voter registration campaign or any other political or legislative cause.
A. Except as provided in section 6, union dues may not be expended for political activities if the labor organization establishes a separate segregated fund to be used for political purposes.
B. At the time the labor organization is soliciting money for the political fund from the employee, a labor organization shall:
(a) Inform an employee of the fund's political purpose; and
(b) Inform an employee of the employee's right to refuse to contribute without fear of reprisal, or loss of membership in the labor organization.
A.
1. It is unlawful for a labor organization to make a political expenditure or contribution by using money or anything of value:
(a) secured by physical force, job discrimination, membership discrimination, or economic reprisals, or threat of force, job discrimination, membership discrimination, or economic reprisals; or
(b) from dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, except as provided in section 4;
2. At the time the labor organization is soliciting money for the political fund from an employee, it is unlawful for a labor organization to fail to:
(a) inform an employee of the fund's political purpose; and
(b) inform an employee of the employee's right to refuse to contribute without fear of reprisal, or loss of membership in the labor organization.
3. It is unlawful for a labor organization to solicit monies for the political fund from any person other than its members.
4. It is unlawful for a labor organization to pay a member for a contribution to the political fund from himself or others by providing a bonus, expense account, rebate of dues or other membership fees, or any other form of direct or indirect compensation.
B. Any person violating this section is guilty of a misdemeanor.
A. 1. An employee of any person, firm, or private corporation within the State/Commonwealth of (insert state) may sign and deliver to his employer a written instrument directing the employer to:
(a) deduct a specified sum from his monthly wages; and
(b) pay the deduction to a labor organization or union or any other organization of employees as assignee.
2. An employee's right to revoke or modify a written instrument authorized under this subsection shall not be abridged.
B. An employer who receives a written instrument assigning a specified sum from the employees wages shall
C. The employer shall continue to make and pay the deduction as directed by the employee until the employee revokes or modifies the deduction in writing.
D. Nothing in this section shall be construed to require an employer to deduct funds from employee pay or to continue to make payroll deductions.
E. 1. Notwithstanding subsection A., a public employee may not direct a public employer to deduct monies from his wages and pay them to:
(a) a registered political action committee;
(b) a political fund defined by section 3; or
(c) any intermediary that contributes to a regional political committee or fund as defined by section 3.
2. Nothing in this section prohibits an individual from making personal contributions to a registered political action committee or to a fund as defined by section 3.
The Labor Organizations Deductions Act applies to both public and private sector unions and union members. Because union members are frequently unaware of the political activities funded by their unions, the act proposes to require explicit, signed statements to authorize payroll deduction of political contributions. Also, unlike some "paycheck protection acts," the Labor Organizations Deductions Act does not require annual reauthorization of political contributions. The omission could easily be rectified if it is deemed to be a weakness in the model bill.
The penalty section (Section 5) might also be modified by the inclusion of organizational as well as personal penalties. This would avoid the necessity of determining what persons in the organization were guilty of violating Section 5. Organizational penalties should undoubtedly be more severe than the personal penalties since several members of the labor organization staff will ordinarily be responsible for violations.
Finally, as drafted, the Labor Organization Deduction Act (1) sets strict requirements for payroll deduction of political contributions in Section 4 and appears to prohibit such deductions for public employees entirely in Section 6(E)(1). Because a prohibition is clearly spelled out in Political Funding Reform Act, legislators may wish to rely on the latter to prohibit payroll deduction of political contributions.
Excluded from National Labor Relations Act (NLRA), public employees are subject to state and local laws governing collective bargaining. Many of these laws are "monopoly bargaining laws," which means that even if an employee chooses not to join a union, he or she must accept the terms of the contract negotiated for unionized workers in the workplace. This act establishes the workers' right, in mutual agreement with the public employer, to representation by a public employees own choosing.
This Act shall be known as the Public Employee Freedom Act.
This legislature finds and declares that:
A. An employer and employee should be free to contract on their own terms.
B. Mandatory collective bargaining laws violate this freedom.
C. As a result, it is against the public policy interests of this State/Commonwealth to impose mandatory collective bargaining laws on public employees and the organizations that represent them in the collective bargaining process.
A. "Employee organization" means any association or organization of employees, and any agency, employee representation committee, or plan in which employees participate that exists, in whole or in part, to advocate on behalf of employees about grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
B. "Public employee" means a person holding a position by appointment or employment in the government of this State, or any of its political subdivisions, including, but not limited to public schools, and any authority, commission or board, or in any other branch of public service.
"Public employee" does not include employees whose jobs entail managerial, supervisory, or confidential responsibilities.
C. For the purposes of this Act, "public employer" means any state or local government, government agency, government instrumentality, special district, joint powers authority, school board or special purpose organization that employs one or more persons in any capacity.
A. Public employees shall have the right to represent themselves in their relations with the public employer.
B. No provision of any agreement between an employee organization and a public employer, or any other public policy, shall impose representation by an employee organization on public employees who are not members of that organization.
No dues, fees, assessments or any other automatic payroll deductions by public employers from public employee payroll compensation shall be allowed for transmission to any public employee organization, any intermediary, or private individual, other than for primary and supplemental pension plans, life, health and other employee benefits, or contributions made to 501C(3) charitable organizations through a workplace givings program.
Any agreement, understanding, or practice, written or oral, implied or expressed, between any employee organization and public employer that violates the rights of employees as guaranteed by provisions of this chapter is hereby declared to be unlawful, null and void, and of no legal effect. Any strike, picketing, boycott, or other action by an employee organization for the purpose of inducing or attempting to induce an employer to enter into any agreement prohibited by this chapter is hereby declared to be for an illegal purpose and is a violation of the provisions of this chapter.
It shall be unlawful for any person, employee organization, or officer, agent, or member thereof, by any threatened or actual intimidation of an employee or perspective employee, or an employee or perspective employee's parents, spouse, children, grandchildren, or any other persons residing in the employees or perspective employee's home, or by any damage or threatened damage to an employee's or perspective employee's property, to compel or attempt to compel such employee to join, affiliate with, or financially support an employee organization.
Any person who directly or indirectly violates any provision of this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not exceeding (insert amount) or imprisonment for a period of not more than (insert time period), or both such fine or imprisonment.
It shall be the duty of the state attorney general to investigate complaints of violation or threatened violations of this chapter and to prosecute any or all persons violating any of its provisions, and to take all means at his or her command to ensure its effective enforcement.
The provisions of this chapter shall apply to all contracts or contract extensions entered into after the effective date of this chapter, but no later than two years hence.
Under exclusive representation, unions are authorized to represent everyone in an appropriate bargaining unit, whether or not individual employees wish to be represented by the union. The Public Employee Freedom Act provides that public employee unions can represent only their members and persons willing to be represented by the union. In other words, the act prohibits exclusive representation in the public sector.
Inasmuch as exclusive representation is essential to union power, and indirectly to union revenues as well, abolition of it will encounter all-out union opposition. Some potential criticisms of the model bill can be easily overcome. For example, employees who are not members of a union may nevertheless wish to be represented by it; allowing the union to represent only its members may be too narrow a restriction. Also, in Section 6, it might be desirable to replace "sole purpose" with "in whole or in part" because unions might try to evade the law by asserting that exclusive representation was not "the sole purpose" of a strike or other prohibited action.
Legislators should bear in mind that Section 5 of the model legislation would prohibit payroll deduction of dues for public employee organizations opposed to collective bargaining. In some states, these organizations enroll more members than the teacher unions and will be adamantly opposed to Section 5, but not to other provisions in the act. In most, if not all states, allowing payroll deduction of union dues and fees only for organizations domiciled within the states would solve this problem with the enthusiastic support of the non-union teacher organizations.
One of the positive features of the model bill that has received relatively little attention is that it would enable states to reduce their labor relations bureaucracies; also, enactment would result in much less labor litigation. A large share of public resources in labor relations grows out of the need to resolve problems resulting from exclusive representation. For instance, agency fee litigation would disappear if unions could represent only those employees willing to be represented by the union.
There is no doubt that exclusive representation constitutes a sharp departure from ordinary contract law; outside of minors or legally incompetent individuals, nobody is personally bound by contracts negotiated by others in our society. Most of us retain the power to enter into contracts for services under terms and conditions of employment mutually satisfactory to ourselves and our employers. Only persons represented by labor unions lose this right. Not surprisingly, the introduction of the Public Employee Freedom Act will be perceived as a declaration of war by public employee unions, and they will undoubtedly try to enlist private sector unions as allies against the bill.
This issue, for private sector unions, was debated by Congress in 1947, in the enacting amendments to the National Labor Relations Act (NLRA). The issue was finally resolved by letting each state decide whether to prohibit union membership or payment of dues, or service fees, as a condition of employment. This is called Right to Work legislation. In 1999, 31 states were right to work states or states that prohibited teacher collective bargaining. ALEC has long advocated Right to Work as one of the fundamental principles guiding its labor relations policy. Nevertheless, there are ongoing efforts to repeal Right to Work laws, and also to enact them and collective bargaining statutes where states have not done so.
Be that as it may, exclusive representation is not universally accepted, either in the United States or in other democratic industrialized nations that encourage collective bargaining; in fact, exclusive representation is discouraged, restricted, and/or even prohibited in some.15
Some states require state and local governments to deduct organizational dues upon written authorization; others are silent on the subject. Most treat union security as a mandatory subject of bargaining, which virtually always results in payroll deduction of dues.
If payroll deduction of dues is distinguished from payroll deduction of PAC contributions, as it should be, there is even more variation. As a result, any particular model statute is not likely to be a feasible objective in all states. Politically, it will go too far in one direction for some, not far enough for others.
The model statutes in this handbook are an effort to address this problem. Instead of one statute relating to dues deduction, several are set forth, so that legislators will have available model legislation that is an improvement over what exists in their state. As a result, however, some of the models include measures that are not desirable in principle, but constitute an improvement over existing legislation. For instance, in a given state, it may be impossible politically to abolish PAC contributions by payroll deduction, but it may be possible to give individual public employees the right to utilize payroll deduction for the PAC they wish to support.
The view adopted here is that government should not collect political funds for any private interest group, but it is better to allow employees to choose than to limit their options to payroll deduction for union PACs. The hope is that the range of model statutes will offer one or more model statutes that will be practically useful in every state. It is safe to assume that sponsorship of any will be opposed by public sector unions but not necessarily by public employees.
The foregoing model legislation does not affect all the possible legislative enactments relating to payroll deduction. The additional possibilities include but are not limited to legislation that would:
Again, it must be emphasized that state laws do not protect public employees against union violations of employee rights. This is especially true as long as the employees must utilize personal funds to challenge unions with huge annual revenues.
Finally, one must question whether the distinction between collective bargaining and political action really makes sense in the public sector. For example, when a teacher union bargains, it is trying to persuade a public agency, the school board, to act in a certain way. Is this different from the normal political process in which various parties try to persuade legislative bodies to take certain actions? Not at all, if we consider the basic issues involved. Applying bargaining terminology to a political process does not change the essential political nature of public sector bargaining. In the public sector, collective bargaining is the negotiation of public policies with one interest group in a process from which others are excluded. Recognition of this reality underscores the importance of the issues discussed in the Handbook.
1 Most of this chapter is a revised version of Robert P. Hunter, The Legislative Framework of the National Labor Relations Act, in Compulsory Union Dues in Michigan (Midland, MI: Mackinac Center for Public Policy, 1997).
2 J.I. Case v. NLRB, 321 U.S. 332 (1944); however, one well-known constitutional scholar has argued that the U.S. Supreme Court has never ruled directly on the constitutionality of exclusive representation. See Edwin Vieira, Jr., Poltroons on the Bench, Government Union Review, Vol. 18, No. 3 (1999) pp. 1-53.
3 Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944).
4 Miranda Fuel Co., 140 NLRB 181 (1962).
5 NLRB v. General Motors Corp., 373 U.S. 734 (1963).
6 Machinists v. Street, 367 U.S. 740 (1961).
7 Railway Clerks v. Allen, 373 U.S. 113 (1963).
8 Ellis v. Railway Clerks, 466 U.S. 435 (1984).
9 Abood v. Detroit Board of Education, 431 U.S. 209 (1979).
10 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
11 Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).
12 Communications Workers v. Beck, 487 U.S. 735 (1988).
13 California Saw and Knife Works, 320 NLRB No. 11 (December 20, 1995).
14 For a more detailed discussion of agency fee issues, see Myron Lieberman, Agency Fees: How Fair are "Fair Share" Fees? (Washington, Education Policy Institute, 1999: EPI, PMB #294 4401-A Connecticut Ave., NW, Washington, D.C. 20008-2322). Tel: 202/244-7535; Fax: 202/244-7584; Email: sdchar@aol.com
15 See Richard R. Carlson, The Origin and Future of Exclusive Representation in American Labor Law, Duquesne Law Review (Summer 1992), pp. 1-197.