During the January 22 and January 30 broadcasts of his Newsradio 850 KOA radio show, host Jon Caldara claimed falsely that legislation pending in the Colorado legislature -- HB 1072 -- would make it easier for a union to establish a “closed shop” in which all employees of a workplace “have to join the union.” Caldara also suggested that as a result of the bill's passage, employees would be compelled to “give money to politics [the employee] might not agree with.” In fact, federal law prohibits a union from compelling an employee to become a full member or contribute to its political efforts.

Caldara also is president of the Independence Institute, a “free-market, pro-freedom” conservative policy research organization. As Caldara noted during the January 30 broadcast of his show, the Independence Institute has published a "backgrounder" on the bill -- although that piece does not support Caldara's assertions about “closed shops” and mandatory contributions to political causes. The falsehood about compulsory union membership also appears in an Independence Institute radio ad, which Caldara echoed during the January 30 broadcast. Additionally, Caldara misrepresented a January 25 Denver Post editorial and a January 30 column by Vincent Carroll in the Rocky Mountain News that discussed HB 1072.

From the January 22 broadcast of Newsradio 850 KOA's The Jon Caldara Show:

CALDARA: This bill, 1020 -- excuse me -- 1072, write it down, call your legislator, let Bill, let Bill Ritter know this is a travesty. Forget whether it's good or bad for business. Forget if it's good or bad for unions. I want you to think about the individual. You remember the individual? We used to respect the individual. Under this bill, it would change 64 years of labor law. It changes what is known as the Labor Peace Act. Colorado is not one of the 22 “right-to-work” states, which means that if you get enough people in your work area, in your business, they can unionize, and if three-fourths of them want to make it a “closed shop” -- that is, make it clear that you have to join the union -- they can. This law drops that threshold to a mere 50 percent plus 1.

But you're an individual. Why should you be forced to join an organization that does not represent who you are? Or does not represent your political beliefs? Well, in this collectivist society, apparently it's because 50 plus 1 can force you to, or force you to lose your job. Isn't that incredible?

[...]

CALDARA: A bill is being rushed through the Colorado legislature -- in fact, it flew through the House at warp speed before most people in the business community could even decipher it. It changes 64 years of labor law. Colorado 64 years ago passed something called the Labor Peace Act. Basically said that here in Colorado if a group of people want to unionize and have a union shop, they can do so. If they want to force everybody else to be a member of the union they can do so too, but they have to get three-fourths of all those people to agree -- the idea being, of course, that there's tons of people and lots of support to unionize and have what's known as a closed shop. This bill changes that to a simple percentage. If you get 50 plus 1 percent, you can close a shop. In other words, you can force people against their will to join a union. How can that be? This is an anti-freedom bill. You are not free to join any organization or refuse to join any organization. “Uh, you can work here, but you gotta give money to politics you might not agree with.” Where's the ethics in that?

As Colorado Media Matters has noted, federal law prohibits the establishment of a “closed shop,” which makes membership in a union a condition of employment. The American Bar Association (ABA) explained in an overview of U.S. labor and employment law published by the Bureau of National Affairs that under the National Labor Relations Act (NLRA), short of full membership, a collective bargaining agreement can at most compel workers to maintain “financial core” status, which requires payment of certain dues and fees:

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.

The ABA article also contradicts Caldara's suggestion that, as a result of mandatory union membership, “you gotta give money to politics you might not agree with.” As the ABA article noted, “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.”

Furthermore, the Independence Institute's “backgrounder” on HB 1072 correctly noted that "[a] series of United States Supreme Court decisions consistently prohibits unions from withholding agency fees for purposes other than collective bargaining" and noted in this regard the 1988 decision Communications Workers of America v. Beck, 487 U.S. 735, 762-63.

In addition to repeating falsehoods about closed shops and mandatory union membership on his January 30 broadcast, Caldara falsely suggested that in a January 30 column, News editorial page editor Vincent Carroll supported Caldara's contention that HB 1072 would facilitate compulsory union membership:

CALDARA: In our follow-up file, we've been keeping an eye on House Bill 1072, which has been flying through the legislature. Passed the House, passed the first Senate committee today and a very, very -- on, on a complete partisan line. What this law does is it allows unions to close shops. It forces people either to join a union or lose their job. Isn't that a wonderful, wonderful thing?

[...]

CALDARA: Anyway, the main point of Vince Carroll's little “On Point” column is that [Gov.] Bill Ritter looks like he's going to sign this House Bill 1072, which will force non-union workers to join the union or lose their job, basically -- should a majority of the workers there want to close the shop. It is a huge payoff to organized labor in Colorado. It has long-lasting, huge impact.

In fact, Carroll explicitly argued that the bill would alter the likelihood that non-union members would have to pay dues:

If Ritter is going to sign HB 1072, and it seems clear he is, he should defend it as good policy instead of downplaying its significance. If he believes unions should have an easier time forcing nonmember workers to pay dues, he should make the case for why.

During the same broadcast, Caldara likened HB 1072 to the strong-arm tactics seen on the cable television mob drama The Sopranos:

CALDARA: I want to give you an idea of how bad this bill is, this idea to force workers to join an organization that they don't want to be associated with or else lose their job. I mean, it's -- it's like a Sopranos episode. “Where's your dues, man? Here's the gun to your head, give me the dues. I'm doing this for your own good. Give me the dues.” In any event, not only don't I like it; not only has the Independence Institute been very critical of it -- and you can go to our Web page, IndependenceInstitute.org, to get some facts on it -- we've got a terrific backgrounder right there on our front page.

The Sopranos reference parrots an anti-HB 1072 radio ad featured on the Independence Institute website that falsely suggests the bill would force workers to join a union:

I like my job and I work hard, but I don't want to join the union. I know unions worked hard to get liberals elected in the last election, including Bill Ritter. That's their right. Seems like now it's time for Ritter to pay them back. The unions are pushing House Bill 1072, which would force people like me to join a union I don't like, or I lose my job; pay dues to a union I don't agree with or lose my job. That's just not right. This should be on The Sopranos, not the governor's desk. It makes me wonder who's paying the bill for Ritter. For more information go to IndependenceInstitute.org.

Also, Caldara later misrepresented the thrust of a January 25 Post editorial:

CALDARA: Now, we're [the Independence Institute], you know, considered to be cranky free-market guys; we don't want to force people to do and join organizations they don't want to join. But let's figure this. We're now holding hands with the folks like the so-called business community. The downtown Denver Chamber of Commerce -- the one that loves every single tax increase. We're joined with the Rocky Mountain News editorial page. Get this: We're even joined with The Denver Post liberal editorial page. All of us saying, this is not a good idea. Even The Denver Post editorial page suggests this be vetoed. Now, if there was ever an example of a payback to a special interest, this is it. I say again, if there was ever an example of a payback -- a political payback -- to a special interest, House Bill 1072 has got to be it. The papers don't like it. Business community doesn't like it. Nobody likes it except the unions, and Bill Ritter is going to sign it into law. Isn't that incredible? Isn't that incredible? All right.

Contrary to Caldara's suggestion, the Post did not editorialize against the merits of the bill. Rather, the editorial took issue with the process by which HB 1072's proponents expedited it through the legislature without first consulting business interests. Moreover, the editorial made clear that the establishment of a union shop would be subject to employer approval and that it would not necessarily compel union membership, as opposed to agency fees.

You'd think that organized labor would know a thing or two about fair negotiations, but we're unimpressed with the bill racing through the Colorado legislature that would make it easier to achieve “union shop” agreements. It was passed in the House on Monday, but we hope the Senate will turn the measure down. Passage would send a one-sided message from the statehouse -- at precisely the moment that Gov. Bill Ritter and majority Democrats need to forge a working relationship between business and labor to nurture Colorado's fragile economic recovery.

House Bill 1072 cleared the House on a 35-29 vote. Supporters moved the measure at breakneck speed, avoiding any effort to seek compromise with business interests.

[...]

Some 22 states, many of them in the West or the South, have right-to-work laws that prohibit unions and employers from negotiating “union shops” where all workers in a bargaining unit must either join the union or pay “agency fees” equivalent to union dues. Twenty-seven other states permit employers and unions to negotiate whether to have a union shop.

Colorado stands alone, striking a compromise that allows union shops, but only if the union has first been authorized to seek one by a separate vote of its membership, with a hard-to-obtain 75 percent supermajority. Even so, winning such an election in no way requires an employer to grant it.

In practice, removing this requirement would do little to effect the balance between management and labor in Colorado. Colorado had 170,000 union members in 2005, about 8.4 percent of the state's workforce. Many of those are public employees or work in the building trades and would not be affected by the bill. And contrary to some reports, its passage would in no way ease the burden faced by union organizers when trying to organize such militantly anti-union employers as Wal-Mart.

Our objection to HB 1072 has less to do with substance than process -- it sends a bad message to employers when business isn't even invited to discuss the proposal to change a 64-year-old law.