[EL] Hawaii Union Employees Case

Sat Aug 25 21:10:39 PDT 2012

A reader sent along the following observations:

    There has been some confusion on this case.  The employees were not
    on the clock.  They were required to participate in political
    activities outside of work.  If you read the statement of the
    Democratic Commissioners, it is pretty clear that the problem here
    was not that this was a work duty, but a requirement that they
    donate their own time to the Union's independent expenditure
    activity. Maybe a subtle distinction, but it makes the question
    somewhat different than what Prof. Scarberry's email addresses.

     From page 2 of the Dems statement: "There is no evidence, and the
    union does not suggest, that any employee was compensated for
    participating in after-hours campaign activities. Nor has the union
    attempted to argue that such activities were part of any employee's
    normal duties."

    In fact, the reason the costs weren't reported as part of the IE is
    because the union argued the employees were volunteering on the own
    time.

On 8/24/12 10:32 PM, Scarberry, Mark wrote:
>
> I suppose that if a corporation or union is permitted to engage in 
> campaign speech and chooses to do so, it has to do it through its 
> employees. If GE's board or management decided to send out letters 
> urging people to vote for Gov. Romney, would the GE employee who 
> prepares mailings be entitled to refuse to handle the letters? Would 
> the copy writer be entitled to refuse to write the letter? If the 
> publisher of the NY Times asks a staff writer to write an editorial 
> endorsing Pres. Obama, could the writer assert a right not to do so? 
> Maybe employees should have some statutory or common law right under 
> some circumstances not to assist in political activity with which they 
> disagree, but it doesn't seem to me that they have a constitutional 
> right to retain private employment and to refuse to communicate the 
> corporation's or union's message.
>
> At first I thought the story was about unions requiring workers who 
> were represented by the union to do campaign work, which would be even 
> worse than requiring them to pay dues for political campaigning. But 
> these people were employees of the union; the union was their 
> employer, not their bargaining representative.
>
> Perhaps I'm missing something. I think it was wrong for the union to 
> require its employees to do campaign work (assuming they weren't hired 
> to do public relations or similar work for the union that would 
> necessarily involve them in putting out the union's message), but it 
> doesn't seem to me to violate the employees' rights, at least in the 
> absence of a relevant statute. The GOP members of the FEC seem to be 
> right that the statute invoked in this case does not apply, because 
> the workers weren't being coerced to contribute to a candidate or to 
> do fund raising for a candidate. The union's activity was independent. 
> They did agree, if I'm reading the statement correctly, that the union 
> should have disclosed the value of the workers' time as an independent 
> expenditure, and that it could be sanctioned for not doing so.
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
> *From:*law-election-bounces at department-lists.uci.edu 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Rick Hasen
> *Sent:* Friday, August 24, 2012 9:11 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] ELB News and Commentary 8/25/12
>
> ...
>
>
>     "Making Employees Do Campaign Work Does Not Break Law, FEC
>     Republicans Say" <http://electionlawblog.org/?p=39083>
>
> Posted on August 24, 2012 6:38 pm 
> <http://electionlawblog.org/?p=39083> by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> WOW 
> <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=27694789&vname=mpebulallissues&jd=a0d4g2y8d9&split=0>: 
> "An organization may require its employees to participate in campaign 
> activities during work time without violating campaign finance laws, 
> according to the three Republican members of the Federal Election 
> Commission. A statement, released Aug. 24, explained the votes of the 
> FEC Republicans to dismiss coercion charges leveled against a Hawaii 
> government workers union, the United Public Workers (UPW)."
>
> "The 'statement of reasons' filed in the matter by the three FEC 
> Republicans is online at 
> http://eqs.nictusa.com/eqsdocsMUR/12044320562.pdf. The FEC Democrats' 
> statement is at http://eqs.nictusa.com/eqsdocsMUR/12044314776.pdf."
>
> This could potentially be very big.
>
> ...
>
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu  <mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Now available: The Voting Wars:http://amzn.to/y22ZTv
>   
>
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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