Public-Employee Unions Maintain a Privileged Status

School union protestAs a result of the Supreme Court’s ruling in Janus v. AFSCME, teachers and other public employees in 22 states can no longer be compelled to pay “agency fees”—the money that the union claims it costs to represent them—as a condition of employment. A teacher in newly liberated California can now save $1,100 or $1,200 per year in fees that the union claimed were necessary to cover the cost of representing him in collective bargaining.

Unions are preparing to take a hit. In advance of the decision, which was widely expected, the California Teachers Association projected a loss of 23,000 members. The union also figures to lose revenue from 28,000 non-members who had quit the union but were forced to cough up the agency fees. In order to soften the financial blow, CTA has announced a per-teacher dues hike of $23 a year for the 2018-2019 school year, bringing teachers’ state dues to $700 annually. CTA’s parent, the National Education Association, bracing for a 10 percent loss in membership, is slashing its budget by $50 million and raising its per-teacher share of dues from $189 to $192.

But while teachers and other public employees are off the unions’ hook, the rest of us Californians are still paying. Taxpayers foot the bill for the collection of union dues, which local school districts deduct from a teacher’s monthly paycheck, just like federal and state withholding taxes. The school districts turn the money over to local teachers’ unions, which don’t pay a penny for the transactions. Simply put, the taxpayer is the bagman for the union. Some states are pushing back, however. A proposed bill in Louisiana would allow school boards to charge unions an administrative fee of up to 3 percent of the union dues.

That’s a start, but public unions remain financially formidable. All unions enjoy tax-exempt status with the IRS. The NEA took in $365.8 million in 2015, according to its most recent available tax return—just about all of it coming from taxpayer-supported teachers’ salaries. The CTA’s income was $183.1 million, per its latest return. In total, the NEA and its state affiliates take in about $1.6 billiona year in tax-free money, and that doesn’t include money paid to NEA locals, the American Federation of Teachers and its affiliates, or AFSCME, SEIU, and all the other public-employee unions. The numbers are staggering, and will remain so. The irony is that these unions persistently use their taxpayer-paid, tax-free money to lobby legislators to raise taxes.

To add insult to injury, a new bill in California would make union dues tax-deductible. “Californians, in effect, will collectively subsidize union dues,” reports the Pacific Research Institute. “The bill would cost taxpayers $250 million the first year, $170 million in 2019-20, and $180 million in 2020-21.” The bill has passed muster in the state assembly and is on its way to becoming law. On an ongoing mission to kill off charter schools and voucher programs, the teachers’ unions rail against “privatizers” who seek to profit from public education. But when it comes to a private entity making a killing from public education, the teachers’ unions have the market cornered.

Before, during, and after the Janus proceedings, public unions pumped out a steady stream of clichés, claiming that the court case represented an attempt to “rig the system,” “rig the economy,” and “rig the rules.” But what the Janusdecision really did was to bring a semblance of fairness to a system that the unions have been gaming for years. Now that Janus has freed public employees from union domination, taxpayers in California and elsewhere need emancipation from the same abusive special interest.

How Government Unions Will Attack the Janus Ruling 

Teachers unionThis week, the U.S. Supreme Court issued their decision in the landmark case Janus vs. AFSCME, ruling that public sector unions can no longer force public employees to pay union dues. Janus argued that even so-called “agency fees,” which unions claim are only for collective bargaining and are therefore non-political, are, in fact, inherently political. As a result, Janus argued that mandatory collection of agency fees violated his first amendment right to free speech.

The court agreed, writing “union speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights.” We might add that public sector collective bargaining also affects work rules, hirings, terminations and promotions, ‘non-political’ lobbying, get-out-the-vote efforts, funding for educational public relations and academic studies; the list goes on.

Public sector union spending is indeed inherently political, and it is also intensely partisan, overwhelmingly supporting the party of bigger government.

While it was generally expected that the court would rule in favor of the plaintiff, Mark Janus, it was uncertain whether the scope of the ruling would extend to mandating opt-in vs. opt-out. Currently, for that portion of government union dues that are declared by the union to be used for explicitly political purposes – roughly 20% to 30% – members have to go through a laborious and intimidating “opt-out” process. Even as Janus extends that opt-out right to cover all dues, including agency fees, it can still be very difficult for public employees to stop paying these unions.

As it turns out, the court’s decision takes the further step of requiring public employees to opt-in to paying union dues. The court writes, “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” That is, instead of employees having to ask the union to stop withholding dues, now the union has to ask the employee to start withholding dues.

This is a major enhancement to the scope of the Janus decision, but government unions are working to minimize its impact.

HOW THE UNIONS WILL USE CONTRACTS TO GET EMPLOYEES TO WAIVE THEIR “OPT-IN” RIGHTS

A critical variable, not clearly addressed in today’s Janus decision, is when, and how often, an employee must “affirmatively consent to pay.” Related to this, and also requiring expert legal interpretation, is how requiring an employee to “affirmatively consent to pay” may conflict with contract law. What if the employee waives that right when signing an employment agreement? What if that waiver is buried in a more general employment agreement? Is that enforceable?

Take a look at this actual example of an actual recent agreement between an employee and their government union:

As can be seen, this contract has been modified to read “if I rescind my membership and if existing law changes so that non-members are no longer required by law to contribute, I agree that the contributions authorized above shall continue and this authorization shall automatically renew annually, irrespective of my membership status, unless and until I submit a timely signed revocation of this authorization. To be timely, a revocation must be mailed to OCEA’s office, postmarked between 75 and 45 days before such annual renewal date.”

Has an employee who signs this form, likely along with countless other forms they’ll sign on the first days of their initial employment, from then on permanently waived their right to only opt-in to dues payments? If you opt-in one time, are you stuck having to opt-out from then on? Every year?

To ensure that contracts such as the one featured here are signed, California’s union compliant legislature offers SB 285 and AB-2017, bills that make it difficult, if not impossible, for employers – or anyone else – to discuss the pros and cons of unionization with employees. These bills also refer any alleged violations to the union-packed Public Employment Relations Board instead of the courts.

Then to make the contractually mandated, Janus altering, opt-out process even more difficult, AB 1937 and AB-2049 prohibit local government agencies from unilaterally honoring employee requests to stop paying union dues.

There is an even more fundamental way the unions will try to obliterate the impact of the Janus ruling.

UNIONS MAY ATTEMPT TO FORCE STATE AND LOCAL GOVERNMENTS TO DIRECTLY FUND UNIONS

Some government union advocates have already begun legal research into removing government union funding from any direct relationship to individual government employees. In an 6/27 article on Vox entitled “How Democratic lawmakers should help unions reeling from the Janus decision,” the author argues that since unions only extract around 2% of wages, and since studies show that unionization confers a 17% better wage and benefit package, the employer should simply turn over 2% of total wages to the unions, rather than deduct 2% from individual paychecks. They write: “But if public employers simply paid the 2 percent directly to the unions – giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks – then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

An article published today in Slate makes a similar argument. The authors write: “States can replace their fair-share fee laws with provisions that require or allow public sector employers to subsidize unions directly.” They even claim that such a measure would reduce employee’s tax liabilities since their taxable income would be cut by 2% in order to fund the state’s direct union contribution in a “revenue neutral” manner. To support their argument for this “direct payment alternative” the authors cite a law review article published in 2015 by law professors Aaron Tang of UC Davis, and Benjamin Sachs of Harvard.

The political power of public sector unions in California and other blue states is almost impossible to overstate. Returning governance to elected officials by rolling back the power of these unions will be a long and difficult fight. The highly visible steps the unions are taking or testing – the direct payment alternative, contracts that temporarily or permanently waive an employee’s right to free speech, forced dues for up to one year after opting-out – can be challenged in court. They may also be politically unpopular – direct payments in particular would be a hard sell to voters.

The more subtle ways unions are buttressing their power in the post Janus environment may be harder to stop, and collectively create daunting barriers to reform. Examples including denying right-to-work and pro-free-speech groups access to public employees, forbidding employers to discuss pros and cons of unionization, mandatory new employee “orientations” with union membership commitments filled with fine print and buried in multiple documents requiring a signature, handing dispute resolutions over to the union-packed PERB instead of the courts, broadening the base of employees eligible to join the unions.

To paraphrase Winston Churchill, for government union reformers the post-Janus era “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

REFERENCES

16-1466 Janus v. State, County, and Municipal Employees (06/27/2018) – US Supreme Court

California’s Government Unions Take Steps to Obliterate Janus Impact – CPC Analysis

A Catalog of California’s Anti-Janus Legislation – CPC Analysis

Court Case Could Free Public Employees from Unions

Supreme CourtThe U.S. Supreme Court will hear arguments in the Janus v AFSCME case on February 26, with a decision scheduled to be announced in June. If successful, it would free public employees in 22 states from having to pay any money to a union as a condition of employment.

Many union leaders are beside themselves with the thought that their days of collecting forced dues payments may well be numbered. And in an attempt to convince anyone who will listen to them, the lies and whines are flowing like raw sewage. Perhaps Numero Uno on the BS meter is Mr. Eric Heins, president of the California Teachers Association. In the current issue of California Educator, the union’s magazine, Heins spews some whoppers that would make Richard Nixon and Bill Clinton blush.

“They want to use the Supreme Court to take away the freedom of working people to join in strong unions.” Blatant crock. The case is about giving working people a choice to be a part of a union.

“A decision in Janus to strip public employees of their collective bargaining rights in the workplace moves us further in the wrong direction.” Uh, nice bait and switch. The case has nothing to do with collective bargaining; it’s about the Constitutionally-guaranteed freedom of association for workers.

“No other organization exists to protect California’s children the way CTA does – in the classroom and beyond.” Okay, technically not a lie, but it’s a distinction without a difference. In his opinion, CTA, which has burdened the Golden State with tenure, seniority and dismissal statutes so onerous that firing a pedophile is almost impossible, is “protecting children.” No, the union is there to preserve teachers’ jobs at any cost…whether they deserve preservation or not. The children you pay lip service to – not to mention taxpayers you profess to champion – are hardly “protected” by your union.

Other unions have also ramped up their rhetoric as the oral argument date nears. The American Federation of Teachers, stressing precedent, is invoking the 1977 Abood ruling, which allows for forced dues. Using the stare decisis argument, the union adopted a resolution “urging the court to reaffirm its long-standing position rather than imposing a national ‘right to work’ landscape.” Surely the union would admit that using a prior ruling as the basis to justify a law is not always the right and just thing to do. For example, AFT wouldn’t have been caught dead using stare decisis to support Plessy v Ferguson, which advanced the “separate but equal” doctrine for public facilities, including schools, when  Brown v. Board of Education, which claimed that separate educational facilities are inherently unequal, challenged the 58 year old ruling in 1954.

In the “whine” category, one meme that keeps popping up is the unions’ insistence that they will become insolvent without compelled dues. AFSCME President Lee Saunders called Janus a political attack against union finances. To be sure the unions will take a financial hit, but if it doesn’t have anything to offer to a worker, it should lose business or even fold up. Think Edsel.

In the “misdirection” department, Slate writer Mark Joseph Stern deserves to be singled out for chutzpah. He asserts that the claim made by Janus that the First Amendment flatly prohibits the government from compelling Americans to subsidize speech with which they disagree is bogus. He writes, “… this happens all the time: Tax revenue, for instance, is frequently used to promote messages that a taxpayer does not endorse, yet nobody seriously believes that taxes are unconstitutional.”

What Stern conveniently omits is that the union is not a government entity, but rather a private corporation. For better or worse, making people pay for services they neither asked for nor want is a “privilege” we reserve for government. In other words, while I must pay state and federal taxes, I don’t have to pay the Auto Club a fee because they say they provide certain necessary services. I am not forced to fork over money to the NRA because the pro-Second Amendment group advocates for me. AAA and NRA are private entities but, unlike unions, are not allowed to coerce money from unwilling individuals.

Given the originalist majority on the Supreme Court, Mark Janus should be successful in his attempt to continue in his job as a child support specialist at the Illinois Department of Healthcare and Family Services without being made to pay one red cent to any union to keep his job. And a union will then have to convince him (and several million other government employees) that it’s in his best interest to join up. What a concept.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.