Public Statement: The State Legislature’s Answer to the Janus Decision: The Employee Coercion & Intimidation Act

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Pioneer has previously referred to a “Tammany Hall-like nexus” between organized labor and Massachusetts elected officials. Nothing proves that statement more than the Legislature’s attempt to negate the impact of the U.S. Supreme Court’s recent Janus decision, in which the Court found that public employees cannot be forced to pay fees to unions they don’t want to be members of and with which they don’t agree.

The amendments to an economic development bill, filed by Senators Nick Collins and Joe Boncore, would gut Massachusetts labor relations law, which currently prohibits public employers from discriminating against those who are not union members in hiring, tenure, or any term or condition of employment, in order to encourage or discourage membership in any union.

Currently, Section 10(b)(3) of Chapter 150E reads, “It shall be a prohibited practice for an employee organization or its designated agent to: (3) Refuse to participate in good faith in the mediation, fact finding and arbitration procedures…”

The amendments would change the section to include new language: “[A] collective bargaining agreement may provide different terms and conditions of employment for members of the employee organization than those terms and conditions applied by the public employer to employees who have elected not to maintain membership within the employee organization.”

Section 10(a)(3) of Chapter 150E currently prohibits a public employer or its designated representative from discriminating “in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization.”

The new amendments would change that by adding “except that a collective bargaining agreement may provide different terms and conditions of employment for members of the employee organization than those terms and conditions applied by the public employer to employees who have elected not to maintain membership in the employee organization.”

And just to make sure non-union employees have no escape from this inequity, the amendments establish that “The employee organization, recognized as the exclusive representative shall have the right to negotiate wages, benefits, hours of work and all other working conditions on behalf of all employees of the unit whether such an employee is a member or non-member of the employee organization.”

In other words, unions have the sole right to negotiate lesser pay and reduced benefits on behalf of non-members.

Here the Tammany coalition appears to have stepped over the line. Even the American Federation of State, County and Municipal Employees’ analysis of the Janus decision said that Justice “Alito suggested it would be unconstitutional for a public sector employer to give union members more favorable treatment than nonmembers.” The duty to represent both members and nonmembers is tied to exclusive representation. The loss of exclusivity would allow anti-union employers to give nonmembers a better deal and drive down membership. However, unions may provide benefits solely to members if the benefit is outside the collective bargaining agreement.

The National Labor Relations Act, which applies to private-sector unions, arguably prohibits this sort of coercion. The NLRA does not apply to public-sector unions, so the question arises as to whether the U.S. or state constitution prohibits such an arrangement. There is certainly an equal protection claim if the union gets the public employer to pay union members $15 more per hour for the same work as that done by a nonmember.

As the late-night television ads say, “Wait, there’s more!” To prevent legal challenges by the non-union employees, the amendments establish a presumption that the union has conducted all its negotiations in good faith: “There is hereby established the presumption that the employee organization recognized as the exclusive representative has conducted all of its negotiations in good faith based upon the employee organization’s understanding of what is best for the bargaining unit as a whole.”

The amendments would allow public employee unions to choose to represent and charge nonmembers for statutory or administrative appeals, grievances or filings for arbitration even if nonmembers do not want their participation or have hired their own representation. Further, it gives unions veto power (they must agree in writing with any employer-employee settlement).

The sledgehammer amendments also eliminate access to dental and vision insurance for employees who choose not to join the union. These supplemental plans, which are at least partially funded by the employer, may be the only way workers can access such coverage.

Just in case any public employees aren’t feeling sufficiently intimidated, the amendments give unions access to the home address, personal email address and home or mobile telephone number of any employee or family member.

For good measure, the amendments also give unions a new level of workplace access. For example, they would have the right to meet with newly hired employees for a minimum of 30 minutes.

These amendments are an embarrassment. They have been developed in secret, with union representatives and senators, and made available only today – the same day the vote on them may be held. The way they have been developed, as much as their content, will invite a legal challenge.

The amendments should go to the Attorney General for an opinion on their state and federal constitutionality, as well as their alignment with state and federal law.

The senators and union officials in the Tammany coalition may themselves realize the degree of their overreach. The amendments end with language providing that if one or more provisions of the legislation is determined to be unconstitutional and the determination is upheld after the parties have exhausted their appeal rights, the provision or provisions determined to be unconstitutional would be rendered void, but the remaining provisions would be fully enforceable.