Bill to Revise Montana’s Labor Codes Rejected by Unions | Condition

The Montana State Capitol in Helena on January 2, 2023.

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

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

In his view, a bill to overhaul the labor code is basically saying that public employees are not smart enough to decide whether to join a union.

Instead, he said, the bill is sticking the government’s nose into people’s personal affairs.

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

Reardon was among about 20 people lining up to oppose House Bill 216 at a state administration committee meeting on Tuesday.

Sponsor and Rep. Bill Mercer, R-Billings, said he’s received many emails opposing the legislation, but despite the alarm, the sky isn’t collapsing with HB 216.

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

“Therefore, you have the right not to join a union and not to pay dues,” Mercer said.

He also said that describing the bill as “right to work” legislation would be a “red herring”.

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

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

In that ruling, the Supreme Court said unions cannot levy mandatory fees on non-member government employees.

The bill says a public employee won’t have to pay fees to keep their job — Montana already does, opponents said.

HB 216 also outlines the manner in which employers would collect contributions.

For example, the bill would require an employer to advise employees each year that they are not required to join and to sign a form certifying that they agree to the deduction of dues if they wish to retain their membership.

At the hearing, opponents argued that the bill would illegally interfere with union contracts and add bureaucracy and unnecessary paperwork. They also said that Montana law is already consistent with Janus, which was enacted in 2018.

Only three people voted in favor of the bill.

Max Nelsen, speaking on behalf of the Freedom Foundation, said some unions are still failing to comply with the law years after Janus.

For example, he said the City of Great Falls contract still contains language that says fees are a condition of membership.

(He acknowledged that a clause at the end of the contract indicates that the language is moot if another law supersedes it, but he said the contract was still not clear to the worker.)

Nobody is forced to join a union, Nelsen said, but in reality there is an information gap. He said the bill is a necessary step to give employees “meaningful control over the paychecks they receive and to better protect their civil liberties.”

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

Vincent Vernuccio, Mackinac’s senior fellow, said the center’s goal is to advance freedom across the country, and he said workers, like teachers, at Helena need to know they have the right not to pay fees. (Vernuccio testified via Zoom, and the center could not be reached by email late Tuesday afternoon because of its Montana affiliation.)

John Forkan said he wonders why the line of supporters is so short.

“If this bill was such a good thing for workers in Montana, why wasn’t there a bunch of them here?” said Forkan, who represents maintenance workers.

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

“I was just wondering if you had the fear of God where you would fire them if they came here,” Phalen said.

Forkan said he believes his members statewide are well aware of their constitutional rights and treaty obligations and don’t need the Montana Legislature to spell them out — or him to intimidate them.

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

Forkan also gave a tongue-in-cheek response to the idea that he was scaring workers away: “I’m sure a 72-year-old, bald, gray-haired man has the fear of God in all these workers across the state. ”

A few union leaders spoke on the premise of the bill.

Amanda Curtis of the Montana Federation of Public Employees said in 2021 lawmakers passed House Bill 289, which she says is a “true codification” of the Janus decision.

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

The idea was that these workers would also benefit from the union’s bargaining, she said. But she said Janus outlawed the practice, as did the legislature’s last session through HB 289.

Curtis also said unions cannot require attendance or contributions because a condition of employment already exists.

“It’s already law in Montana, and it’s already common practice in Montana,” Curtis said.

Montana AFL-CIO’s Amanda Frickle said she agreed with the sponsor that the bill was simple, and said she agreed with those who argued that workers needed to be informed of their rights.

“That’s not what this bill does,” Frickle said. “That is the rationale for what this bill is doing. What this bill does is legislate on the terms of a private contract.”

For example, the law would end union membership every year, she said.

But allowing lawmakers to enter into an employer-employee contract is a direct violation of the contract clause of the Montana Constitution, she said; It states that the legislature cannot intervene in these private transactions.

In response to a question from Rep. Paul Green, R-Hardin, a union representative spoke about a worker who had decided not to join.

Joel Gaertig of the Montana State Firemen’s Association said no one is being forced to join, and only one in 836 people have opted out of membership since 2018.

He said the firefighter wasn’t in Gaertig’s particular union, but he believed the clerk 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 at work. It’s just that he’s not a member of this locale,” said Gaertig, who said the bill would create unnecessary paperwork and fee collection headaches.

Opponents pushed back against the bill, and Mercer concluded by saying he suspects some of the outcry was because the bill would actually create requirements for Janus compliance that he believes will not be enforced.

He pointed to the Great Falls Treaty, which Nelsen cited as evidence.

Regarding legal concerns, Mercer said legislative analysts have not flagged the bill as potentially conflicting with Montana’s contract clause: “There is no legal notice.”

More generally, he also said he didn’t believe in legal notices that state employers are required – and not – to inform workers that they have the right to associate.

“This is solely focused on what the government can and should do in relation to its employees and making sure they understand what their constitutional rights against coerced speech are,” Mercer said. “As simple as that.”

The committee took no immediate action on Tuesday.

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