New lawsuit an ‘assault’ on unions

A California lawsuit filed this spring against teachers unions could have widespread national implications for labor laws. Ten non-union teachers and the Christian Educators Association are suing their local, state and national unions, alleging that the organizations are forcing them to pay to support political activities they do not agree with in violation of their first amendment rights.

The plaintiff’s lawyers are attempting to fast-track the case in the California courts by essentially eliminating the discovery phase and then appealing almost immediately to the U.S. Supreme Court. A decision in their favor could turn every state in the country into a right-to-work state, where public employees can opt out of joining a union.

2011_Wisconsin_SEIU_protesters

Wisconsin union members march in protest of a law that reduced their collective bargaining rights. (Photo courtesy of Wikimedia Commons)

The unions say that they are complying with existing law and the California Constitution. California Teachers Association (CTA) officials see the suit, which was filed on behalf of the plaintiffs by a conservative group, as part of a broader mission by the right to weaken public sector unions – a legal counterpoint to legislative efforts around the country. Since 2010, three states – Indiana, Michigan and Wisconsin – have passed and maintained laws restricting labor rights.

While other groups have tried for decades to use the courts to reduce union strength, this case is particularly aggressive, said CTA’s legal director Laura Juran. “This is a full-frontal assault,” she said.

In 24 states, including California, teachers and other public workers are automatically enrolled in unions. Individuals are allowed to opt out, but few do. Those that do are still required to contribute agency fees that go toward the union’s collective bargaining efforts because they are covered by the contract the union negotiates.

The courts have held for decades that unions can’t charge these non-members for political activity, though. If the Supreme Court agrees to hear the case once it has gone through the lower courts the California, plaintiffs want the justices will go a step further and rule that a worker who opts out of a union should not have to pay for any of the union’s activities. While it is unclear if the lawsuit will reach the highest court, California union officials are worried about the potential results.

“If the U.S. Supreme Court holds that it is unconstitutional to require public employees to contribute to a union’s collective bargaining expenses, even when those employees directly benefit from the collective bargaining agreement, this would be tantamount to sanctioning free riding and would have a profound impact on public sector unionism in the United States,” said Benjamin Sachs, a professor at Harvard Law School and an expert on labor law.

Following a 1980 decision, unions are required to give out notices to all non-union members explaining which activities they are being charged for and which they aren’t. But some labor experts question the validity of these self-reported notices and say breaking down a union’s many activities is a murky business.

The expenses are not confined to the negotiating table. In the 2012-2013 school year, for instance, the California Teachers Association reported that a $27,860 “Ethnic Minority Early Identification Development program” and $18,079 “special publications” were related to collective bargaining. Also that year, the union hosted a Gay, Lesbian, Bisexual and Transgender (GLBT) Conference to “address issues involving GLBT educators, students and community” and found that nearly 87 percent of its cost – or $65,099 – was eligible to be paid for by agency fees.

The conference, and another gay and lesbian program, is one of the specific examples the plaintiffs take issue with. “Whatever you think about these programs, they are not related to collective bargaining,” said Terry Pell, president of the Center for Individual Rights, the right-leaning organization that filed the lawsuit on behalf of the plaintiffs. (The plaintiffs are also represented by Jones Day, one of the country’s largest corporate law firms.)

Although Juran could not speak to the specifics of the GLBT conference, she said that it, like other CTA events, likely was designed to promote safety and inclusion for all teachers and students. Much of the activity that the union labels as part of its collective bargaining efforts relates to working conditions and improving education, she added.

The union is careful about documenting staff time to accurately breakdown chargeable and nonchargeable activities and “tends to err on the side of not charging,” Juran said.

But the complaint also argues that collective bargaining in itself is a political activity. For instance, many teachers unions across the country have opposed merit pay in contract negotiations, despite the fact that individual teachers may support it. “The distinction between political expenditures and collective bargaining is a made-up distinction,” Pell said. “Collective bargaining is every bit as political as what unions call overtly political.”

Unions have historically argued that agency fees serve as an important protection against the “free rider problem,” where, in theory, all workers could choose not to join the union if they get the contract negotiations for free. Pell dismissed that argument, pointing to union membership in right-to-work states. Although the numbers vary widely, in most right-to-work states that allow collective bargaining, anywhere from half to about 80 percent of teachers are unionized.

Pell, and other legal experts, see a potential opening for change based on a 2012 Supreme Court decision. In that case, Knox vs. Service Employees International Union, Local 1000, the justices ruled that unions must have members “opt in” to any special fees, rather than automatically deduct them.

Justice Samuel Alito, writing for the majority, suggested in his opinion that the merit of agency fees in general was suspect. “Because a public sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights,” Alito wrote.

His argument, which pushed beyond the scope of the questions raised in Knox, gives Pell and his colleagues hope that they’ll be able to get the Supreme Court’s attention. Alito is one of the court’s most conservative members, however, and Sachs noted it was still unclear if they would have the four votes necessary for the court to accept the case.

“There are at least some justices on the Supreme Court who are wondering out loud about the constitutionality about dues requirements,” Sachs said. “That probably means that some of them would like to have such a case.”


POSTED BY ON July 9, 2013

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