BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 1179
                                                                  Page A
          Date of Hearing:   May 4, 2011

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                                Sandre Swanson, Chair
                   AB 1179 (Mansoor) - As Amended:  April 25, 2011
           
          SUBJECT  :   Labor organizations: union dues: political activities

           SUMMARY  :   Enacts the California Voluntary Contributions Act to 
          place limitations on expenditures for political activities made 
          by labor organizations.  Specifically,  this bill  :  

          1)Provides that a labor organization may make expenditures for 
            political activities only if the labor organization 
            establishes a separate fund from which to make those 
            expenditures and complies with all of the following:

             a)   In soliciting contributions to the fund from a member, 
               the labor organization shall inform the member that 
               expenditures from the fun will be for political activities, 
               that contributions are voluntary, and that the member has a 
               right to refuse to contribute without fear of reprisal or 
               loss of membership in the organization.

             b)   The labor organization does not use union dues for 
               political activities, transfer union dues to the fund, or 
               intermingle union dues in any way with moneys in the fund.

             c)   The labor organization pays the costs of administering 
               the fund using fund contributions and not union dues.

             d)   The labor organization ensures that each contribution to 
               the fund is voluntary and is made by the member and not 
               made by the employer of the member.

          2)Places the burden on the labor organization to show that it 
            has complied with these requirements.

          3)Specifies that a labor organization may use union dues to 
            lobby or communicate directly with its own members regarding 
            political candidates, ballot measures, and other political 
            issues.

           FISCAL EFFECT  :   Unknown










                                                                  AB 1179
                                                                  Page B
           COMMENTS  :   According to the author, this bill will bar payroll 
          deductions from employees being used for union political 
          purposes.

           Background on Union Security Agreements and the Use of Union 
          Dues for Political Purposes
           
          Under current California law, employers make a variety of 
          payroll deductions from their employees' wages, including 
          deductions for Social Security, income taxes, medical plans and 
          charitable contributions.  The Labor Code also requires 
          employers to notify employees at the time of payment of wages 
          regarding the amount of compensation and any deductions 
          therefrom.    

          Many employees in California are represented by labor 
          organizations and pay union dues or similar fees for 
          representation to the union.  Under many collective bargaining 
          agreements, such dues or fees are automatically deducted by the 
          employer from employee wages and forwarded directly to the labor 
          organization.
           
           Section 8(a)(3) of the National Labor Relations Act (NLRA) 
          allows employers and unions to enter into union-security 
          agreements requiring all employees in a particular bargaining 
          unit to become "members" after a 30-day period following hire.  
          However, in a 1963 decision, the Supreme Court held that the 
          term "member" requires only the payment of periodic dues and 
          fees as opposed to full membership in the union.  NLRB v. 
          General Motors Corporation, 373 U.S. 734 (1963).  Since the 
          court noted that "the membership that is required has been 
          whittled down to its financial core," individuals choosing that 
          approach are often referred to as "financial core members."  
          This has also been termed an "agency shop" arrangement.

          Therefore, under current law, no employee is required to become 
          a member of a union in order to maintain a job, but all 
          employees subject to a union security clause can be required to 
          pay union dues and fees to defray the costs of representation.

          In Communication Workers of America v. Beck, 487 U.S. 735 
          (1988), the Supreme Court held that the section of the NLRA that 
          allows employers and unions to enter into union security 
          agreements does not "permit a union, over the objections of 
          dues-paying nonmember employees, to expend funds so collected 









                                                                  AB 1179
                                                                  Page C
          Ýpursuant to a union security clause] on activities unrelated to 
          collective bargaining, contract administration or grievance 
          adjustment."  Thus, federal labor law does not permit a union to 
          spend funds from dues-paying non-union employees on certain 
          activities unrelated to collective bargaining when those 
          employees object to such expenditures.  At issue in Beck was the 
          specific use of dues for political purposes.  
           
           In Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), 
          the Supreme Court articulated a test for determining whether a 
          particular expenditure of union funds may be charged to 
          nonmember employees.  Chargeable uses must (1) be germane to 
          collective bargaining activities, (2) be justified by 
          governmental interest in the maintenance of labor peace and the 
          prevention of "free riders" who benefit from the union's 
          collective bargaining activities without contributing to the 
          costs of such activities; and (3) not add significantly to the 
          burdening of free speech rights.

          The Lehnert decision also expanded the scope of the Beck 
          holdings to include public sector employees so that such 
          employees may not be compelled to subsidize political or 
          ideological activities of public employee unions.
          
          Under Beck and subsequent cases, a union has several general 
          obligations to ensure that employee's Beck rights are protected. 
           First, the union must provide notice to nonmember employees of 
          their Beck rights.  Second, the union must refrain from charging 
          objectors for nonrepresentational expenses.  Finally, the union 
          must provide objectors with a financial disclosure and establish 
          procedures for objectors to challenge the accuracy of the 
          union's disclosure.

          Therefore, applicable federal labor law establishes a mechanism 
          whereby employees covered under union security agreements can 
          become "financial core" nonmembers and therefore avoid having to 
          pay that portion of their dues or fees for purposes unrelated to 
          collective bargaining.
           


          The Federal Election Campaign Act of 1971  

          The Labor Management Relations Act of 1947 prohibited many forms 
          of labor union contributions to federal election campaigns.  The 









                                                                  AB 1179
                                                                  Page D
          Federal Election Campaign Act of 1971, as amended (FECA), 
          generally continued this broad prohibition of labor union 
          activities and funds in federal elections.  However, the FECA 
          provided for three broad exemptions to this general prohibition 
          of labor union political activities in federal elections: (1) 
          communications by a labor organization directed at its members 
          or their families on any subject: (2) non-partisan voter 
          registration and get-out-the-vote activities by a labor 
          organization which are directed to its members or their 
          families: and (3) the establishment and administration of a 
          political action committee or separate segregated fund (commonly 
          known as a PAC or SSF) for the purpose of the solicitation of 
          contributions to such fund for political purposes.  Generally, 
          any other type of political activity by labor unions in federal 
          elections would be prohibited under the FECA, and labor union 
          contributions and expenditures concerning federal elections 
          outside these exceptions would be prohibited.

          In a 1972 Supreme Court decision, the Court concluded that a 
          legitimate labor union political fund must be separate from the 
          labor union in that there must be a strict segregation of the 
          political fund's monies from the union's dues and assessments.  
          The Court noted that, while the former law, which prohibited 
          labor organizations from making contributions or expenditures 
          connected with a federal election, might be interpreted to 
          prohibit the use of union funds to establish and maintain a 
          union political fund for the purposes of soliciting and making 
          political contributions in federal campaigns, the provision of 
          the Federal Election Campaign Act of 1971 allowing labor unions 
          to establish separate segregated funds or political action 
          committees impliedly repealed that former law.

          No similar prohibition currently exists under California 
          election law.

           The Citizens United  Decision
           
          On January 21, 2010, the United States Supreme Court issued a 
          decision that had significant impacts on federal campaign 
          finance law.  Citizens United v. Federal Election Commission, 
          130 S.Ct. 876 (2010).

          That case resulted from a dispute over whether the nonprofit 
          corporation Citizens United could air a film critical of Hillary 
          Clinton (Hillary: The Movie), and whether the group could 









                                                                 AB 1179
                                                                  Page E
          advertise the film in broadcast ads.  At issue were portions of 
          the 2002 Bipartisan Campaign Reform Act (commonly known as the 
          McCain-Feingold Act) that prohibited all corporations and unions 
          from broadcasting "electioneering communications.  An 
          "electioneering communication" was defined in McCain-Feingold as 
          a broadcast, cable, or satellite communication that mentioned a 
          candidate within 60 days of a general election or thirty days of 
          a primary.

          The Court held that the law's prohibition of all independent 
          expenditures by corporations and unions was invalid and could 
          not be applied to spending such as that in Hillary: The Movie. 
          Justice Kennedy, who wrote the majority opinion, stated: "If the 
          First Amendment has any force, it prohibits Congress from fining 
          or jailing citizens, or associations of citizens, for simply 
          engaging in political speech."


          The Campaign Legal Center has described the Court's holding as 
          follows:

               "In Citizens United v. FEC, the Supreme Court struck down 
               the decades-old federal ban on independent expenditures by 
               corporations (and unions) to influence federal elections.  
               The Court reasoned that the First Amendment does not permit 
               laws to discriminate between corporations and individuals 
               when it comes to electoral spending that is independent of 
               candidates and political parties.  However, the federal ban 
               on direct corporate and union contributions to candidates 
               and parties was not considered and remains in effect.

               Citizens United allows corporations and unions to spend 
               their treasury funds on advertisements expressly advocating 
               the election or defeat of a candidate for the first time in 
               over 60 years.  A corporation or union can either spend 
               directly on such express advocacy or it can give to an 
               outside group, such as one of the tax-exempt vehicles 
               described in the sections below.    


               The practical impact of this decision is a vast change in 
               the magnitude of the political money available - the 
               difference between a corporate political action committee 
               ("PAC") spending perhaps hundreds of thousands dollars 
               voluntary donated by corporate employees and a corporation 









                                                                  AB 1179
                                                                  Page F
               spending millions out of its multi-billion treasury."


          Following the decision, it was reported that laws in 24 states 
          were directly or indirectly called into question by the ruling.  
          "The states that explicitly prohibit independent expenditures by 
          unions and corporations will be most affected by the ruling.  
          The decision, however, has consequences for all states, since 
          they are now effectively prohibited from adopting restrictions 
          on corporate and union spending on political campaigns."<1>


          As discussed below, opponents to this measure argue that its 
          limitations on union political expenditures run afoul of the 
          recent holding in Citizens United.
            
           California Proposition 226 (1998) 

          Proposition 226 of 1998 would have, among other things, required 
          employers to obtain a signed authorization from employees on an 
          annual basis in order to deduct money from an employee's wages 
          to be used for political campaign activities.  The measure also 
          would have required that, in order for a labor organization to 
          use a portion of the dues or fees it collects for political 
          campaign activities, the union must obtain a signed form from 
          the employee each year authorizing the use of the money for 
          those activities.

          Proposition 226 was defeated by the voters in the June 2, 1998 
          primary election.







           California Proposition 75 (2005)

           Proposition 75 of 2005 would have prohibited the use by public 
          employee labor organizations of dues or fees for political 
          contributions except with the prior consent of individual 

          ---------------------------
          <1> Urbina, Ian.  "24 States' Laws Open to Attack After Campaign 
          Finance Ruling."  New York Times (January 23, 2010).









                                                                  AB 1179
                                                                  Page G
          employees annually on a specific written form.

          Proposition 75 was defeated by the voters in the November 8, 
          2005 special statewide election.

           ARGUMENTS IN SUPPORT  :

          The author states the following in support of this bill:

            "Certain employees who are forced to join and be represented 
            by unions are forced to pay
            mandatory dues. These dues are often automatically deducted by 
            the employer from the workers' wages and sent to the union. 
            Unions can use these dues for political activities without the 
            opinion of the employee on where and how the funds should be 
            spent. 
               
            ÝThis bill] fixes this problem by barring payroll deductions 
            from these employees to be used for union political 
            activities.  A union members' ability to make political 
            donations without payroll deductions will not be affected."

          The National Right to Work Committee, writing in support of this 
          bill, states, "By requiring union bosses to collect funding 
          directly from  their membership, you will free taxpayers and 
          local governments across California from having to finance what 
          is nothing more than a union boss perk."

           ARGUMENTS IN OPPOSITION  :

          Opponents argue that this bill unconstitutionally interferes 
          with the right of contract and the right to free speech, and is 
          preempted by the National Labor Relations Act, which already 
          comprehensively regulates protection of employees who do not 
          wish their union dues to be used for political purposes.

          In addition, opponents contend that this bill is unnecessary.  
          No worker can be forced to fund a union's political program.  
          Under current law, union members choose whether to join a union, 
          they set their own dues, elect their own leaders and vote on how 
          and where their money is to be spent.  Those who disagree with 
          their union's political activity can, and do, choose not to 
          belong to the union.

          Finally, opponents state the following:









                                                                  AB 1179
                                                                  Page H

               "We believe enactment of this bill would violate the First 
               Amendment of the United States Constitution.  Last term, 
               the United States Supreme Court, in Citizens United v. 
               Federal Election Commission, held that the First Amendment 
               prohibits the government from restricting corporations, 
               nonprofit groups and unions that choose to spend their 
               regular treasury funds for independent public 
               communications that "expressly advocate" the election or 
               defeat of particular federal candidates.  Even before 
               Citizens United, California allowed unlimited corporate, 
               nonprofit, and union treasury spending on general/public 
               express advocacy and other electoral speech in state and 
               local elections.  Citizens United invalidated other states' 
               restrictions on express advocacy.  ÝThis bill] seeks to 
               restrict union spending on express advocacy of political 
               candidates, political parties, and ballot measures by 
               outlawing employees' voluntarily authorized deductions of 
               union dues if the dues are spent on political activities.  
               ÝThis bill's] restriction would clearly violate the First 
               Amendment, and the courts therefore would invalidate it as 
               unconstitutional if it were to be passed."


           RELATED AND PRIOR LEGISLATION  :

          AB 860 (Jones) of 2011 would prohibit corporations and labor 
          unions, including public employee labor unions, from making 
          contributions to candidates for elective office or entities, as 
          specified, that would use contributions to fund a candidate or 
          controlled committee.  The bill also would prohibit a 
          corporation, labor union, including a public employee labor 
          union, government contractor, or government employer from 
          deducting from an employee's compensation money to be used for 
          political purposes.  AB 860 is currently pending in the Assembly 
          Committee on Elections and Redistricting.

          AB 2349 (Maze) of 2006 would have required a labor organization 
          that is required to file a report of its income and expenditures 
          with a government agency to post on its Web site either a copy 
          of the report filed with the government agency or a link to the 
          report on the Web site of the government agency.  AB 2349 failed 
          passage in the Assembly Committee on Labor and Employment.

          AB 2052 (Haynes) of 2004 would have, among other things, 









                                                                  AB 1179
                                                                  Page I
          required employers to notify employees when deductions are made 
          from their paychecks to be used for political purposes.  AB 2052 
          failed passage in the Assembly Committee on Labor and 
          Employment.

          AB 674 (Leonard) of 1997 would have, among other things, 
          prohibited an employer from withholding any amount from an 
          employee's wages or salary for the purpose of making campaign 
          contributions, except pursuant to a signed written request.  AB 
          674 was referred to the Assembly Committee on Elections and 
          Redistricting, but was never heard.

          AB 1347 (Kaloogian) of 1997 would have required a labor 
          organization to disclose, in writing, to its members before the 
          dues or other fees for membership are required to be paid, the 
          actual amount it spends on political activities.  AB 1347 was 
          referred to the Assembly Committee on Public Employees, 
          Retirement and Social Security, but was never heard.

          AB 1401 (House) of 1995 would have prohibited a school district 
          from deducting any portion of the dues from any classified 
          employees to support political activities of the labor 
          organization.  AB 1401 was held on the Assembly Inactive File.








           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Associated Builders and Contractors of California
          National Right to Work Committee

           Opposition 
           
          American Federation of State, County and Municipal Employees
          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Official Court Reporters Association
          California Professional Firefighters









                                                                  AB 1179
                                                                  Page J
          California School Employees Association
          California Teamsters Public Affairs Council
          Engineers and Scientists of California
          International Longshore and Warehouse Union
          Orange County Employees Association
          Professional and Technical Engineers, Local 21
          Service Employees International Union
          UNITE HERE!
          United Food and Commercial Workers - Western States Conference
          United Nurses Association of California/Union of Health Care 
          Professionals
          United Transportation Union
          Utility Workers Union of America, Local 132

           
          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091