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Minutes for SB175 - Committee on Commerce

Short Title

Enacting the public employee right to choose act, providing public employees with the right of relief from the obligation to pay union dues through withholding of their wages.

Minutes Content for Mon, Mar 18, 2019

Chairperson Lynn opened the hearing on SB 175 and requested Revisor Charles Reimer to provide an overview of the bill.

Chairperson Lynn recognized Patrick Wright, Mackinac Center for Public Policy, who provided testimony in support of the bill.  The testimony included background information on the Janus v AFSCME (American Federation of State, County and Municipal Employees) decision, prior labor law history, and relevant Kansas references for the Committee's consideration.  State labor laws vary.  Before Janus v AFSCME was decided, there were three general categories: (1) states that allow mandatory bargaining and agency fees; (2) states that allow mandatory bargaining and prohibit agency fees; and (3) states that prohibit mandatory bargaining thereby rendering the agency-fee question moot. 

Kansas' labor laws related to teachers and state employees are not affected by federal statutes.  Both statutory schemes are exclusive representation and because Kansas has a right to work provision in its Constitution, both statutory schemes prevent agency fees. 

According to the Kansas Constitution, no person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall the state or any subdivision thereof, or any individual, corporation, or any kind of association enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization. 

In June 2018, the Supreme Court overturned Aboud v Detroit Board of Education.  Now, as a matter of the First Amendment, agency fees are prohibited.  This means those 22 states that had permitted agency fees to be imposed on public employees could no longer do so.  Kansas was not one of those states, so the impact of Janus is that it prevents the state from in the future deciding to allow the imposition of agency fees.  While agency fees and dues cannot be mandated, employees are allowed to voluntarily agree to make payments to unions.  (Attachment 1) 

Chairperson Lynn recognized Vincent Vernuccio, Workers for Opportunity, who provided testimony in support of the bill.  SB 175 ensures that public employees are informed about their First Amendment right not to pay union dues or fees and further allows them to exercise this right at any time.  The Janus decision established that the choice to pay a union or not is a U.S. Constitutional First Amendment right. 

Some unions and some state legislatures have created arbitrary windows of time to limit when public employees may resign their union membership and stop paying dues.  In some cases, these windows can be linked to the employee start date and only be a few weeks long or even shorter. 

Some Kansas unions allow public employees to opt-out of their union at any time but still require payment of dues for up to a year after the employee exercises their right.  Public employees' First Amendment rights must be protected by giving them the information necessary to make an informed decision.  If a public employee chooses to exercise their right, the state, school district or local government should immediately stop collecting dues and inform the union.  The public employee's financial obligation to the union should end immediately and no debt should be allowed to accrue.  (Attachment 2) 

Chairperson Lynn recognized Dave Trabert, Kansas Policy Institute, who provided testimony in support of the bill.  SB 175 simplifies the process for a government employee who chooses to resign from a union.  The testimony included the membership application for the Kansas National Education Association (KNEA) and a KNEA resignation form which had been shared by a teacher. 

Mr. Trabert said voters believe public employees should have the freedom to choose.  In a survey across Kansas, 70 percent of voters said public employees should be allowed to end their union membership and stop paying dues whenever they wish.  The margin of support was stronger for government employees surveyed with 77 percent of voters in favor.  The survey was conducted for the Kansas Policy Institute by SurveyUSA. 

Support for the bill is not a derogatory comment on unions; it is simply about respecting each public employee's right to choose.  With the U.S. Supreme Court ruling last year in Janus v AFSCME declaring it is unconstitutional to require union membership as a condition for employment for a government job, it stands to reason that only allowing employees to resign during certain windows of time is also unconstitutional.  Constitutional rights exist absolutely and are not subject to limitation by collective bargaining agreements or any other organizational practice.  (Attachment 3)

Chairperson Lynn recognized Mark Janus, plaintiff in Janus v AFSCME, who provided testimony in support of the bill.  When Mr Janus became a child support specialist for Illinois state government in 2007, he was not informed his position was covered by a collective bargaining unit or that he would be required to pay regular union fees to the AFSCME.  He did not agree with the policy and fought for his rights by filing a federal lawsuit.  He worked with the Liberty Justice Center and National Right to Work Legal Defense Foundation.  The case went to the Supreme Court and on June 27, 2018, the court ruled that requiring government workers to pay union fees was illegal. 

This ruling affirmed the right of every public sector worker in America to decide for themselves whether they want to financially support a government union.  It ended automatic union fees deductions.  In spite of the Supreme Court's ruling, some workers are being told their union will not let them exercise their rights until a certain period or window of time opens.  In almost all situations, these windows are set by the unions, not the workers.  To deny workers the ability to stop union dues deductions is to restrict their First Amendment rights.  (Attachment 4)

Chairperson Lynn recognized Gary Sigle, Kansas Association of American Educators (KANAAE), who provided testimony in support of the bill.  This bill is all about teacher choice and putting the control of a teacher's personal financial and membership decisions in the hands of the educator.  An educator choosing to join KANAAE can do so at any time of the year and can choose to end their membership at any time.  It is important to note that nothing in this bill restricts the ability of an educator from joining a union.  In fact, if educators know they are protected by law with a right to leave at any time perhaps more educators will join a union.  Educators should always have the right to join a professional association at their choosing and end their membership at their choosing.  (Attachment 5) 

Senator Baumgardner asked Mr. Trabert if he knew what unions within the state do not have an opt out at the time the member desires to cancel membership.  She also asked if members have the option to pay their dues up front rather than being prorated over the course of the year.  Mr. Trabert responded he knew of several unions which have an 11 month contract that requires payment of dues for the entire period, but he did not have a comprehensive list. 

Senator Holland asked Mr. Trabert why the Committee was talking about Janus today and what constitutional conflict does Kansas statute currently have with Janus.  Mr. Trabert responded the constitutional conflict is that employees are not free to leave the union and have their dues stopped whenever they wish to do so.  Senator Holland asked Mr. Trabert if he was aware of any court cases in Kansas concerning this issue.  Mr. Trabert said he was not aware of any cases but was hoping to prevent it from happening through the passage of this law. 

Senator Holland indicated he did not see a Kansas version of Janus attending the hearing today telling the Committee why the law needs to be changed in Kansas.  He said there are a number of representatives from conservative think tanks funded by Koch Industries testifying as to why the law needs to be changed.  Mr. Trabert said the organizations testifying represent personal freedom and stand for the rights of the individual.  He said Senator Holland did not know and most people in the room would not know who funds these organizations because that goes yet to another constitutional right that was determined by the U.S. Supreme Court.  There may be speculation as to who funds these organizations but Mr. Trabert said there are hundreds of citizens who support the organizations.    

Senator Holland said he had read Mr. Janus' testimony on the right to work website and he personally understood his decision.  That said, Senator Holland asked at what point does the proposed legislation cross the line into harassment by having burdensome reporting requirements and asking members if they are sure they want to be part of the union.  Mr. Trabert responded people should be free to join unions but they should also be free to leave whenever they wish and should not be forced to support the political speech of an organization with which they disagree.  This legislation does not in any way attack unions  or any other organization.  The rights of the individual under the constitution are paramount.  If the legislation creates a paperwork issue for an organization, that is irrelevant in terms of the rights of the individual.  Organizations have no constitutional rights but the individual employee does.    

Senator Pilcher-Cook asked Mr. Janus to talk about his experience and why he came forward on the issue.  He responded he was not given a choice and was mandated by state law to pay the union fee.  He felt his only recourse was to file a federal lawsuit.  In response to Senator Holland, Mr. Janus asked if the Legislature wanted to be proactive or reactive as he believed a lawsuit would eventually be filed in Kansas on this issue.    

Senator Alley asked if a union is negotiating for its employees under contract whether the union is responsible for negotiating for its nonunion members.  Mr. Wright responded affirmatively.  Senator Alley asked when a nonmember has a grievance whether the union would represent the nonmember.  Mr. Wright responded the nonmember can be charged a reasonable fee for the representation by the union concerning the grievance since the nonmember has not been paying union dues.   

Senator Sykes said, in her opinion, this is legislation in search of a problem and was not worthy of the time spent by the Committee.  She said she supported Mr. Janus in his decision but did not see this as an issue in Kansas.  Mr. Wright responded lawsuits have occurred in areas of higher population but he expected litigation would eventually occur in Kansas.

Senator Holland asked Mr. Janus if the concept for the lawsuit originated from the governor of Illinois in 2015.  Mr. Janus confirmed it did originate with the governor, but because the governor, as an elected official, was not an employee of the state, he was not able to move forward with the lawsuit.  Mr. Janus said he made the decision on his own to pursue the issue.  Senator Holland asked if Mr. Janus was an employee of the Illinois Policy Institute.  Mr. Janus responded he was an employee of the Liberty Justice Center, an affiliate of the Policy Institute.  Senator Holland asked Mr. Janus in the past couple months how many right to work states he had visited to make presentations about his case.  Mr. Janus said he had recently gone to New Mexico.       

Chairperson Lynn recognized John Nave, Kansas AFL-CIO, who provided testimony in opposition to the bill.  SB 175 seeks to restrict public employees from participating in the union.  The bill serves no purpose because Kansas is a right to work state.  Any employee that chooses to join a union does so by taking steps to voluntarily join the union.  If the worker does not physically sign on to join the organization, it does not happen.  The management of how dues or membership is tracked can be problematic for the employer that actively seeks out to discourage union membership.  This bill goes out of the way to drive a wedge between the employer and employee relationship.  (Attachment 6)

Senator Sykes noted it is everyone's personal responsibility to read contracts and forms they are signing to assure they understand what they are signing.

Senator Alley requested Mr. Nave to explain his comment about driving a wedge between the employer and employee relationship.  Mr. Nave said there have been situations in the work place which result in harassment and lowering of morale relating to a member's choice concerning whether or not to join a union.  The goal is for these types of situations not to happen but the reality is that they do happen.  

Senator Baumgardner asked for information concerning how many unions in Kansas require members to continue paying dues for a period after they have decided to no longer be a member of the union.    

Senator Givens asked Revisor Charles Reimer if there are any provisions in current law concerning when an employee can request to join a union.  Revisor Reimer responded he could not recall any provisions that specifically addresses when a person can join a union. 

Written only testimony in support of the bill was provided by:

 - Eric Stafford, Vice President of Government Affairs, Kansas Chamber of Commerce  (Attachment 7)

 - Elizabeth Patton, Deputy State Director, Americans for Prosperity - Kansas  (Attachment 8)

Written only testimony in opposition to the bill was provided by:

 - Terry Forsyth, Kansas National Education Association  (Attachment 9)

 - Sarah LaFrenz, President, Kansas Organization of State Employees (KOSE)  (Attachment 10)

 - Leonard Fishburn, Private Citizen  (Attachment 11)

 - Cody Hill, Private Citizen  (Attachment 12)

 - Neil Diediker, Private Citizen  (Attachment 13)

 - Mark Conn, Private Citizen  (Attachment 14)

 - Jake Miller, Lobbyist, Working Kansas Alliance  (Attachment 15)

 - Jake Lowen, Director, Wichita/Hutchinson Labor Federation of Central Kansas  (Attachment 16)

 - Mik Shanks, President, Kansas State Fraternal Order of Police  (Attachment 17)

 - Dennis Phillips, Lobbyist, Kansas State Council of Fire Fighters  (Attachment 18)

 - Hannah Ross Allison, Organizing Chair, University of Kansas Graduate Teaching Assistants Coalition  (Attachment 19)

 - Lisa Ochs, President, American Federation of Teachers - Kansas  (Attachment 20)

 - International Brotherhood of Electrical Workers, Local Union 304  (Attachment 21)

 - Mike Scribner, President and Business Agent, Teamsters Local Union 696  (Attachment 22)

 - Rabbi Moti Rieber, Executive Director, Kansas Interfaith Action  (Attachment 23)

No neutral testimony was submitted.

Chairperson Lynn closed the hearing on SB 175.

The meeting adjourned at 9:24 a.m.  The next meeting is scheduled for March 19, 2019.