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Several states have passed laws requiring public sector unions to "recertify" their membership ahead of collective bargaining, which proponents say is "about democracy." Critics counter it is an onerous burden for unions.
NEW ORLEANS—In the wake of a U.S. Supreme Court decision expected to be a significant blow to public sector unions, a conservative group for state lawmakers is working on suggested legislation to impose more requirements on those unions ahead of collective bargaining.
The “model legislation” crafted by the American Legislative Exchange Council is based on laws enacted in several states over recent years. It calls for a required “recertification” vote every two years of any union allowed to collective bargain on behalf of public employees, while also mandating that the union local win majority approval of all workers in an agency.
The proposal is one of dozens on a wide range of issues under consideration by members of ALEC, which is holding its annual meeting this week in New Orleans. Model bills by business-friendly ALEC are often used by legislators across the country, who adapt the proposals for their states.
Labor policy specialist Vincent Vernuccio, a senior fellow at the Michigan-based Mackinac Center for Public Policy who presented the proposed model legislation to ALEC members, said the union recertification language works off laws in Iowa, Florida and Missouri.
"It's about democracy and giving unionized employees the right to decide who represents them," he said. The model legislation is being considered by ALEC members this week but would need to be finally adopted by the group’s board, a spokeswoman said.
The Supreme Court’s 5-4 ruling this June in Janus v. American Federation of State, County, and Municipal Employees, Council 31 says states cannot force public workers who choose not to join a union to pay “agency” or “fair share” fees. Union advocates argued those fees were necessary so that all employees would help cover the costs of bargaining on behalf of the entire workforce. But Justice Samuel Alito, who wrote the opinion, agreed with union critics who said the fees were a violation of the First Amendment, as they required non-union members to pay money in support of union advocacy they might not agree with.
Mark Janus, the former Illinois child support worker who was the plaintiff in the case, spoke at the ALEC conference. He now works for the Illinois Policy Institute and Liberty Justice Center, which brought his case.
This latest hit came after several years of victories in legislatures by union opponents that have targeted public sector unions in several states. This week in Missouri, labor groups scored a major victory when voters rejected a "right-to-work" law in that state, but that dealt only with private sector unions and the mandatory fees they collect.
Paul Clark, director of the School of Labor and Employment Relations at Penn State University, said he believes union recertification measures enacted in Iowa, Wisconsin, Tennessee and Florida arise more from political motives than concern for employees, noting that unions favor Democratic candidates.
Preparing for and conducting union elections takes a lot of time, he said, adding that recent experience shows that frequent recertification votes are "really destabilizing" and distracting.
"The unions end up focusing a lot of attention on just trying to stay certified and don’t have time to bargain and advocate for their members in any way,” he said. “There’s no question in my mind that these laws are designed just to harass and tie unions up."
Dawn Pettengill, a Republican state representative from Iowa who is attending the ALEC conference, supported union recertification measures in her home state. In 2016, Iowa passed the law requiring public-sector union workers to "certify" their bargaining units ahead of each new contract negotiation, typically every two or three years. Previously, unions conducted such elections only once, and a recertification vote occurred only if union members petitioned for a decertification, she said.
Under Iowa’s law, union bargaining units now need to win approval not just from a majority of people who vote in a union election, but from a majority of all employees covered under their contracts.
"A lot of people under those labor agreements were not around when the contracts were signed and have not had a chance to weigh in about whether they want (the contracts) to go forward, so it's basically a freedom to associate," Pettengill told Route Fifty. "I believe that a person that is being represented should be able to say that they want to be represented."
In two rounds of voting last year, employees in the vast majority of Iowa’s bargaining units approved recertifying their unions. Danny Homan, president of the AFSCME Iowa Council 61, told the Des Moines Register the votes showed “that public sector employees, working men and women, both members and non-members, want to have a union, want to have a voice at the table."
An ALEC subcommittee discussing labor issues on Wednesday morning also considered model legislation developed as a follow-up to the Janus ruling. Vernuccio said existing state laws can require workers to “jump through hoops to opt out” of payments to a union.
The purpose of ALEC's model legislation is to "avoid having public employees misled into forfeiting free speech rights and suffering financial losses," he said, adding that the proposal "codifies" and simplifies the process for employees.
Along with these proposals, ALEC members are also considering adding language to another model bill to change state laws that say collective bargaining sessions must be open to the public. A proposal suggests that the physical meeting can be closed, but still broadcast over the Internet and other channels. Vernuccio said the intent is to prevent people from one side or another from crowding into the meeting room and "trying to intimidate" others. "This safeguards the public body from intimidation," he said.
But Clark disputed that motive. “The bottom line is ALEC has a political agenda in terms of unions, and anything they can do to harass, impede and keep unions from representing their members is what they're going to do,” he said.
Kathy Finn is a freelance journalist in New Orleans.
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