a service of the Nevada Policy Research Institute

Issues

AB 69: A union hammer
against non-union workers

Latest enhancement to the compulsory unionism ‘two step’

By Steven Miller
BusinessNevada

Union bosses protested Tuesday that they’re not out to “gut” Nevada’s right-to-work statute.

What they didn’t mention, however, is that the legislation they’re pushing would remove key worker protections that have long been part of the nearly 60-year-old state law.

Assembly Bill 69 passed the Legislature’s lower house unanimously April 26, after the Republican minority accepted assurances from the Assembly’s Democrat leadership that the latest version of the bill was innocuous.

At the time there was widespread relief in GOP ranks that the initial version of AB 69 was no more. In its first incarnation, the bill would have made Nevada into an “agency shop” state, where nonunion employees could be made to pay fees at about the level of union dues to the very unions they refused to join. Those initial provisions, however, had been removed from AB 69.

But Tuesday, in a hearing of the Senate Commerce and Labor Committee, lawmakers heard an entirely different account of the legislation. Greg Mourad, legislative director the National Right to Work Committee, based in Washington, D.C., told senators that the bill would, in fact, “sabotage” Nevada’s right-to-work statutes.

In response, Nevada AFL-CIO chief Danny Thompson argued that AB 69’s overt wording only allows a union to request “reasonable reimbursement” when it represents nonunion employees, at their request, in disputes with their employers.

“The bill clearly states the employee must come to us for representation,” added Thomas Morley, representing Laborers Local 872 out of Las Vegas.

There is a good deal more to AB 69, however. The bill would take a highly dubious May 2000 ruling of an infamously political Nevada Supreme Court and seeks to embed it in Nevada statutes—before a new, more credible court can revisit the issue.

What’s more, the ruling in question—Cone v. Service Employees Union—applied only to government employee unions. AB 69 seeks to apply that same precedent to every union worksite in Nevada, whether private sector or public sector.

“The amended bill was the best we could do in the Assembly and we were assured it was innocuous,” Assembly Minority Leader Lynn Hettrick told BusinessNevada. “The assurances were received in work session after the opposing sides had negotiated the amendment as an appropriate solution. We did not know that the Court decision only applied to the public sector. We learned, after the fact, that the passage of AB69 would apply the decision to the private sector.”

Hettrick said earlier votes by Assembly Republicans against Democrat bills to micromanage Nevada hospitals demonstrate that the minority would have voted against AB 69 had its actual provisions been understood.

“I hate to say it, but we were not aware of the potential impact of AB69 as amended,” he said. “We do our best, but occasionally one gets past us.”

What the Cone v. Nevada Service Employees Union case was really about, according to critics of organized labor, was a new extension of a right-to-work-infringing tactic sometimes called “the compulsory-unionism two step.”

Step one is where union bosses lobby politicians for legislation that gives the union an exclusive monopoly over representation for all employees in a workplace where 50 percent of the employees, plus one, have voted the union in.

A good Nevada example is the 1969 Dodge Act, which imposed this pattern on local government workplaces, legally giving union brass monopoly control over labor services at those work sites, while legally requiring the elected representatives of taxpayers to negotiate with the labor-services monopolists in good faith.

In step two, the union bosses now go back to the politicians and complain about the responsibilities that, in step one, they pressured the politicians to give them.

“Oh, oh,” they wail, in so many words. “The situation is so unfair. Our monopoly over workplace bargaining turns out to mean—of all things—a monopoly over workplace bargaining! Why, we even have to represent all those workers who don’t want us but we insisted on representing against their will!”

Thus, the first version of AB 69 described itself as “An act … authorizing an employer to enter into a fair share agreement with a labor organization which requires employees who are not members of the labor organization to pay a fee to the labor organization as a condition for employment….”

Such Orwellian “fair share agreement” language fools no one any more. That’s why Big Labor continues to roll out and experiment with new ways to trap unwilling workers so that they have to keep paying into union coffers.

One such episode was the case that became Cone v. Service Employees Union. It originated in October 1994 when about 100 employees of the University Medical Center of Southern Nevada—unhappy with Local 1107 of the Service Employees International Union—quit that union. The union countered by announcing a new, hard-nosed policy: henceforth, for providing the representation service that, under Nevada law, only the union was legally allowed to provide, it would charge nonunion workers a new, heavy fee schedule. Soon thereafter, several former SEIU members, outraged at the union’s new demands, sought legal assistance from the National Right to Work Legal Defense Foundation (NRTWLDF).

To make its new “policy” at least somewhat credible, Local 1107, advised by SEIU attorneys, now announced that nonunion employees would not be required to respect SEIU’s exclusive representation agreement with the employer, UMC. Instead, said the union, nonunion workers had the option of selecting their own outside representatives in grievance matters.

But that, said the employees who had resigned, was not only an unfair new scheme, but farcical: While SEIU was demanding that all parties respect and honor the union’s status as a legally exclusive bargaining agent when it benefited the union, SEIU also wanted to be able to casually shrug off those same legally exclusive responsibilities when they became a bit onerous.

The “policy” couldn’t be divorced from its context, the new nonunion employees argued, and that was a legal context that barred them from negotiating their own contracts and required them to accept employment terms as negotiated by the union.

On the practical level, the union scheme would have required any nonunion employee who wanted to pursue a grievance to be personally exposed to thousands of dollars in legal costs—but even then to only seek enforcement of contract provisions negotiated and interpreted by the union that employee had rejected.

It was those and similar reasons, argued Las Vegas attorney Frank Cremen and the NRTWLDF in a joint brief to the Nevada Supreme Court, that have led to long-standing precedents all over the United States—at both federal and state levels—that bar unions from schemes such as the one SEIU was attempting.

Under those precedents, all unions that win government recognition as exclusive representatives of bargaining units must remain exclusive representatives even when nonunion employees are the ones with the grievance.

To do otherwise, said Cremen and the NRTWLDF, would allow unions to unfairly abuse workers who do resist joining or want to resign. And they had a powerful precedent from the National Labor Relations Board on that very point: “It is noted that it would take over four years’ worth of dues to pay for the cost of one single grievance taken to arbitration. This would necessarily have a coercive effect on nonmembers in their exercise of their right to join or refrain from joining a union,” had said the NLRB.

But that and other national precedents were nevertheless explicitly rejected by the three Nevada judges.

They wrote: “Although appellants cite much precedent, including NLRB opinions, in support of their position, we reject this authority ...[and] ... note that this court is not bound by an NLRB decision....”

Paradoxically in this case, it may have been attorneys for the nonunion employees who, in retrospect, turn out to have been collective bargaining’s best friends. That is because Nevada law (NRS 288.027) defines a bargaining agent as “an employee organization recognized by the local government employer as the exclusive representative of all local government employees in the bargaining unit for purposes of collective bargaining.”

To allow this definition to be ruptured, argued the attorneys for the employees, “would undermine the whole concept of collective bargaining.”

The court said, however, that nonunion employees may hire or designate their own agents to represent them with local Nevada government entities.

“Indeed, an individual may opt to hire his or her own counsel, and thereby forgo giving the union any money at all without fear of losing his or her job,” wrote the panel.

This view differs substantially from the accepted interpretation in other states of laws like NRS 288.140(2), said Stefan Gleason, of the NRTWLDF in 2000, when interviewed for the Nevada Policy Research Institute magazine, Nevada Journal.

“Many other states have similar statutes on the books, but those statutes have been interpreted to be meaningless,” said Gleason. “In fact, the National Labor Relations Act, the nation’s premier labor law, has similar language, but the U.S. Supreme Court ruled that the statute provided no real right of self-representation.”

The Nevada panel, however, noted that it did not have to follow those national precedents since state and local governments, when bargaining with their own employees, “do not fall within the purview of the National Labor Relations Act.”

The self-contradictory position embraced by the Nevada high court was evidenced by the terminology that Clark County’s long-union-dominated Employee-Management Relations Board had embraced in upholding the union’s “policy.” The board had itself called the policy “partial non-exclusive representation.”

Thus the Nevada Supreme Court decision embraced a legal standard that, from the standpoint of national labor law precedents, was bizarre. Effectively, it endorsed “partial non-exclusive representation” and “exclusive representation” at one and the same time—subject effectively only to union whim.

The three-judge panel issuing the May 2000 ruling was comprised of Bob Rose, Bill Maupin and Miriam Shearing. All three, in July 2003, would vote to declare unconstitutional the Nevada Constitution’s Gibbons Amendment, which requires that tax increases be passed by two-thirds super-majorities in both houses of the Nevada Legislature.

That decision—which elicited a national hailstorm of criticism and ridicule—turned out to be largely based on a friend-of-the-court brief filed by teacher union attorneys.

Much of this article was based on earlier reporting that appeared in Nevada Journal magazine in the fall of 2000, in the article “Fleeing the Collective.”