Bill to revise Montana labor laws gets pushback from unions

Sponsor argues bill simply requires employers to inform workers of constitutional rights

By: - January 24, 2023 9:06 pm
The Montana state Capitol in Helena on Jan. 2, 2023.

The Montana state Capitol in Helena on Jan. 2, 2023. (Photo by Blair Miller, Daily Montanan)

Jay Reardon retired as a union member after 48 years, and he said he still pays dues willingly every month.

As he sees it, a bill to revise labor laws basically says public employees aren’t smart enough to decide if they want to join a union.

Instead, he said, the bill sticks the government’s nose into people’s personal business.

“Give it the death that it deserves and lay it on the table and kill it,” Reardon said.

Reardon was among roughly 20 people who lined up Tuesday to oppose House Bill 216 in a State Administration Committee meeting.

Sponsor and Rep. Bill Mercer, R-Billings, said he’s received a lot of emails against the legislation, but contrary to the alarm, the sky is not falling with HB 216.

Rather, Mercer said the bill is simply about making sure public employees know their constitutional rights – a First Amendment right to associate, and with it, the right to not associate, he said.

“Therefore, you have a right to refrain from joining and paying dues to a union,” Mercer said.

He also said a description of the bill as “right to work” legislation is a “red herring.”

The bill would not affect private sector unions, he said. 

He presented the legislation as a way to implement the U.S. Supreme Court’s decision in Janus v. American Federation of State, County and Municipal Employees.

In that ruling, the Supreme Court said unions can’t collect mandatory fees from government workers who are not members. 

The bill says a public employee isn’t required to pay dues in order to keep their job — already the case in Montana, opponents said.

HB 216 also outlines the way the employers would collect dues.

For example, the bill would require an employer to alert employees every year that they aren’t required to join, and to sign a form stating they affirmatively agree to the deduction of dues if they want to retain their membership.

At the hearing, opponents argued the bill is illegally meddling with union contracts and adding red tape and unnecessary paperwork. They also said Montana law already complies with Janus, decided in 2018.

Just three people spoke in favor of the bill.

Max Nelsen, who spoke on behalf of the Freedom Foundation, said some unions aren’t adhering to the law even years after Janus.

For example, he said the city of Great Falls contract still includes language that says dues are a condition of membership.

(He acknowledged a clause at the end of the contract indicates the language is moot if another law supersedes it, but he said the contract still lacks clarity for the worker.)

No one is compelled to join a union, Nelsen said, but the reality is an information gap exists. He said the bill is a necessary step to give employees “meaningful control over paychecks they receive and better protect their civil rights.” 

Representatives from Americans for Prosperity and the Mackinac Center for Public Policy also testified in support.

Mackinac senior fellow Vincent Vernuccio said the center has a goal to advance liberty across the country, and he said workers such as teachers in Helena need to know they have the right to not pay dues. (Vernuccio testified via Zoom, and the center could not be reached via email late Tuesday afternoon for its affiliation with Montana.)

In opposition to the bill, John Forkan said he wondered why the line of supporters was so short.

“If this bill was such a good thing for Montana workers, why weren’t there a whole bunch of ‘em here?” said Forkan, representing maintenance workers.

Rep. Bob Phalen, R-Lindsay, had an idea.

“I just wondered if you have the fear of God in ‘em as to where you would fire them if they did come here,” Phalen said.

Forkan said he believed his members across the state knew their constitutional rights and contract obligations clearly and didn’t need the Montana Legislature to spell them out – or him to intimidate them.

“Unions don’t operate that way, sir,” he said.

With his tongue in his cheek, Forkan also replied to the idea he would scare workers away: “I’m sure a 72-year-old bald-headed gray-haired man’s got the fear of God in all these workers around the state.”

A couple of union leaders spoke to the premise of the bill.

Amanda Curtis, with the Montana Federation of Public Employees, said in 2021, the legislature adopted House Bill 289, which she said was a “true codification” of the Janus decision.

In the past, Curtis said, labor unions could charge fees for services to non-members.

The idea was that those workers benefit from the union’s negotiations too, she said. But she said Janus prohibited that practice, and so did the legislature last session through HB 289.

Curtis also said language that states unions can’t require participation or dues as a condition of employment already exists.

“It is already current law in Montana, and it is already current practice in Montana,” Curtis said. 

Amanda Frickle, with the Montana AFL-CIO, said she agreed with the sponsor in that the bill is simple, and she said she agrees with those who argued workers need to be informed of their rights.

“That is not what this bill is doing,” Frickle said. “That is the rationale for what this bill is doing. What this bill is doing is legislating the terms of a private contract.”

For example, the bill would end union membership each year, she said.

But allowing lawmakers to step inside an employer-employee contract is a direct violation of the contracts clause of the Montana Constitution, she said; it states the legislature can’t interfere in those private deals.

In response to a question from Rep. Paul Green, R-Hardin, one union representative talked about a worker who did opt out of a membership.

Joel Gaertig, with the Montana State Firemen’s Association, said no one is forced to join, and just one person out of 836 decided against membership since 2018.

He said the firefighter wasn’t in Gaertig’s specific union, but he believes the employee was a Republican who disagreed with his own union’s support for a Democrat for president, so he left.

“He’s still in good standing. He’s still on the job. It’s just he’s not a member of that local,” said Gaertig, who said the bill would create unnecessary paperwork and headaches for dues collection.

Opponents pushed back against the bill, and in closing, Mercer said he suspected part of the outcry came because the bill would indeed create requirements for compliance with Janus, which he does not believe is being enforced.

He pointed to the Great Falls contract Nelsen mentioned as evidence.

As for legal concerns, Mercer said legislative analysts haven’t flagged the bill as possibly clashing with Montana’s contracts clause: “There is no legal note.” 

Generally, he also said he doesn’t believe anything in statute notes public employers have an obligation to inform workers they have the right to associate – and not associate.

“This is focused exclusively on what the government can and should do with respect to its employees and making sure that they understand what their constitutional rights are against compelled speech,” Mercer said. “It’s that simple.”

The committee did not take immediate action Tuesday. 

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”

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