Daily Camera op-ed, Post article, and Gazette and Daily Sentinel editorials repeated falsehoods about labor bill

Colorado newspapers continued to uncritically report false or misleading statements regarding the potential impact of House Bill 1072 on Colorado businesses. Colorado Media Matters repeatedly has noted the unsubstantiated nature of the claims that the bill would make it “easier for unions to organize” or harm the state's economy.

In opinion pieces and in a news story in their February 4 and February 5 editions, the Boulder Daily Camera, The Gazette of Colorado Springs, The Daily Sentinel of Grand Junction, and The Denver Post continued the trend of advancing false, misleading, or unsubstantiated claims made by the opponents of House Bill 1072. Among these are assertions that the bill would create so-called “closed shops,” make it “easier” for unions to organize, and hurt Colorado's economy. Colorado Media Matters repeatedly has noted (here, here, and here) the false or unsubstantiated nature of these claims.

HB 1072 would revise the Colorado Labor Peace Act to strike provisions regarding procedures under which workers preparing to negotiate a union contract can obtain necessary authority to make the contract an all-union agreement. Such an agreement requires all workers covered under the contract -- whether they are union members or not -- to contribute money to the union, through dues or fees. The bill passed the House on January 22 and was pending in the Colorado Senate when the newspapers published their items. The text of the bill, which passed the Senate on February 5, states that it:

Eliminates the requirement that, in order to validly enter into an all-union agreement, the all-union agreement must be approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater. Makes conforming amendments.

The Gazette, the Daily Sentinel, and the Daily Camera all asserted some variation on the misrepresentation that HB 1072 would help unions establish a “closed shop.”

For example, according to a February 4 editorial in The Gazette, the “Democrat-backed measure ... would make it easier to establish closed union shops in Colorado.” Similarly, a February 4 editorial in the Daily Sentinel called the bill “a sop to organized labor that would make it easier for unions to establish closed shops and give union bosses more power to dun employees a part of their weekly paychecks even though those employees might not desire any union representation.” And in a February 4 guest column in the Daily Camera, Denver Metro Chamber of Commerce executive vice president Tom Clark wrote, “If House Bill 1072 becomes law, economic developers will have to address the 'closed shop' issue.”

In fact, as the American Bar Association (ABA) noted in an overview of U.S. labor and employment law published by the Bureau of National Affairs, a closed-shop agreement -- which would require union membership as a condition of employment -- is illegal under the National Labor Relations Act (NLRA):

c. Illegal Subjects of Bargaining

Neither party may require the other party to bargain over or agree to contract provisions which are unlawful under the NLRA or, in some circumstances, prohibited by other federal statutes or contrary to public policy. Examples of illegal subjects of bargaining under the NLRA include “closed shop” clauses (or other illegal union security clauses) prohibited by Sections 8(a)(3) and 8(b)(2), and “hot cargo” clauses prohibited by Section 8(e). Illegal clauses are not enforceable, even if both parties agree to their inclusion in the contract.

The ABA article also spelled out that a “union shop” agreement, which is allowable under the Colorado Labor Peace Act and under HB 1072, can compel a worker to pay dues and fees to a union, but not to become a full member.

Clark's guest column in the Daily Camera reiterated numerous other false, misleading, or unsubstantiated claims related to HB 1072 and labor law in other states. Clark asserted that "[r]ight to work" laws -- such as those in Arizona, Utah, Wyoming, Nevada, Nebraska, and Texas -- “ban unions from forcing membership as a condition of employment.” But, as noted above, it is illegal in any state for a union to compel membership as a condition of employment. This point is also stated on the website of the National Right to Work Legal Defense Foundation, an organization that defends workers against “abuses of compulsory unionism”:

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

You may not be required to be a union member. But, if you do not work in a Right to Work state, you may be required to pay union fees. Employment relations for almost all private sector employees (other than those in the airline and railroad industries) are covered by the National Labor Relations Act (NLRA).

Under the NLRA, you cannot be required to be a member of a union or pay it any monies as a condition of employment unless the collective bargaining agreement between your employer and your union contains a provision requiring all employees to either join the union or pay union fees.

Even if there is such a provision in the agreement, the most that can be required of you is to pay the union fees (generally called an “agency fee.”) Most employees are not told by their employer and union that full union membership cannot lawfully be required. In Pattern Makers v. NLRB, 473 U.S. 95 (1985), the United States Supreme Court held that union members have the right to resign their union membership at any time.

Clark also falsely asserted that the Labor Peace Act removes the “right to work” issue:

However, Colorado economic developers still have to address the “right to work” issue for nearly every potential employer. The response for now has been relatively simple: the Labor Peace Act. Colorado is unique. We coexist. We have since 1943, when this was put into law. And it takes that issue off the table.

In fact, in its current form, the Labor Peace Act permits all-union agreements in which non-union members can be compelled to pay agency fees. If enacted, HB 1072 would streamline provisions under which such an agreement can be created at a workplace, but it would not make them newly possible.

Finally, Clark suggested that HB 1072 would cause businesses to locate in neighboring right-to-work states rather than in Colorado:

House Bill 1072 is a solution in search of a problem. Coloradans will much better understand the “problem” when potential employers bypass the Centennial State for our “right to work” neighbors. When this happens, this “solution” will have forced Colorado into an unnecessary and unwarranted competitive disadvantage.

However, as was the case with previous articles and editorials about HB 1072, Clark did not provide any substantiation to this suggestion, such as examples of specific businesses that have indicated they would “bypass” Colorado, or a citation of the current level of union representation in Colorado or in neighboring states where businesses purportedly would prefer to locate if the bill were to become law. In contrast, a January 25 Denver Post editorial (an online version appeared January 24) and Post articles (here and here) noted that Colorado has a low level of union organization. The Post editorial -- which opposed the bill on the grounds that not enough labor-business dialogue about it had taken place -- stated:

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 this 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.

Furthermore, readily available Labor Department statistics show that, in fact, most of the states bordering Colorado -- including several “right-to-work”* states such as Kansas, Wyoming, Utah, Nebraska, and Oklahoma -- have higher union membership or representation rates than Colorado.

Clark also suggested that the Labor Peace Act made Colorado unique regarding the kind of relationship that it makes possible between workers and management:

That same cooperative model includes organized labor -- for now. That's due in large measure to the Labor Peace Act. Colorado is unique among the 50 states in its relationship between business and labor. Under the Labor Peace Act, businesses can have union and non-union members. Both types of employees work together and with management.

And because of this unique relationship, labor has been a part of our most important economic development efforts, including DIA, the sports stadiums and FasTracks. That cooperation most likely will fade upon implementation of House Bill 1072.

Contrary to Clark's suggestion, businesses having both union and non-union members are not unique to Colorado. The Department of Labor statistics cited above show that in every state, the number of workers represented by a union exceeds the number of workers who are members of those unions -- clear evidence that there are nonmembers working alongside members in every state. Clark provided no evidence to suggest that this condition would cease in Colorado because of HB 1072.

Finally, a February 5 Post article by Tom McGhee (an online version was published February 4) misleadingly asserted that the bill “would make it easier for unions to organize by eliminating a second vote needed to form an all-union shop.” In fact, the bill's provisions apply only after a union has successfully completed an organizing vote.

*Right-to-work states, according to the National Right to Work Legal Defense Foundation.