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Fair-Share Dues Fight: City Unions Coalesce To Sway High Court
Mayor, State AG Key Allies In Campaign to Save Agency-Fee Rights
By DAN ROSENBLUM |
Speaking to several hundred of his members at a recent annual gathering, Ernest Logan, the president of the Council of School Supervisors and Administrators, paused while listing recent union victories. He focused on a case being reviewed in the U.S. Supreme Court that could allow public-sector members to opt out of paying for union representation.
"Some of you here, if you didn't have to pay dues, you wouldn't," he said, as the audience laughed. "See, I know. I know you because I know human nature. And human nature says if I can get it for free, why should I pay for it?"
Cite '77 Precedent
Worried about a serious threat to unions' fiscal health, a coalition of labor groups, 21 states and the de Blasio administration filed amicus briefs this month urging the court to uphold its 1977 Abood v. Detroit Board of Education decision. It said that all workers in a particular bargaining unit must pay "fair-share" fees to cover the union costs for grievances and collective bargaining. Many argued that the arrangement allowed unions to fight for fair wages and helped to organize a relatively harmonious contract-negotiation process.
"Organizing gives workers the power to lift themselves out of poverty and build a better future," State Attorney General Eric Schneiderman said in a Nov. 15 statement. "The Supreme Court should follow settled precedent and allow states like New York to manage our own labor relations to achieve labor peace and government efficiency and to continue our long tradition of support for workers."
Ten California Teachers, who brought the lawsuit with backing from the Center for Individual Rights, argue that being compelled to pay union dues violates their First Amendment rights. Though employees can opt out of political spending, the litigants' supporters argue that all union activities are inherently political. Numerous conservative-leaning groups and 18 states, led by Michigan, have filed legal arguments in support of overturningAbood.
Unions, many of which say the challenge is driven by business-backed interests, fear that free-riders who withhold dues will drain their resources. They argue that nothing prevents dues-payers from exercising their freedom-of-speech rights or engaging in political activities.
Ruling Next Spring
The Supreme Court is expected to hear arguments in the case, Friedrichs v. California Teachers Association, as soon as January; a decision could come by the end of the term in June.
The litigation comes after last year's Harris v. Quinn ruling, which established that Illinois home-health-care workers could withhold their union dues but keep protections. Twenty-five states have adopted "right to work" rules making union membership optional.
Los Angeles, San Francisco, Chicago, Boston and other cities joined to defend the union protections. But New York has the highest concentration of households with union members and city government employs 325,000 people, 93 percent of whom are unionized and pay the "agency shop fees."
"New York stands with its unions and the working- and middle-class families that unions protect," Mayor de Blasio said in a statement. "Unions have been key in the fight against inequality, and their role remains vital today when workers' rights are increasingly under attack."
Impact on Contracts?
The de Blasio administration's argument followed a similar thread offered by Mr. Schneiderman, saying that overturning Abood would disrupt its labor agreements. But the Law Department also seized on the city's history of work stoppages and strikes of the 1960s and '70s, which shaped the current labor-relations landscape.
"Those difficult decades directly informed the adoption of new collective-bargaining laws, which incorporated the same agency-shop provisions common for unionized workers in private industry," city lawyers wrote. "The city's strategy has worked. Few labor disputes now result in strikes that impair the provision of public services."
District Council 37 Executive Director Henry Garrido said his union, the second-largest in the city, was strategically shifting how it related to members. He said it had so far conducted 14,000 interviews with workers to assess their concerns and find out how it could better serve them. Organizers now carry iPads to allow dues-payers to sign up or elect to contribute to its political fund, which Mr. Garrido wanted to boost.
"It required us to change our philosophy completely, from what I call a maintenance model to an organizing model," he said.
DC 37 Whittling Away
There were about 27,000 DC 37 agency-fee-payers in 2014, a figure that was halved by this past May. DC 37 is trying to covert another 7,500 fee-payers by March 31, 2016, and so far it has signed up more than 6,000 members.
There are also logistical challenges. Mr. Garrido said the union noticed that the city's human-resources software, designed in the 1980s, has returned thousands of members back to agency-fee-payer status. The de Blasio administration has been receptive to fixing the issue and restoring the dropped members, he said, but upgrading the software would be prohibitively expensive. "We're living with payroll systems that were built that didn't have union membership in mind because we had fair-share," he said.
DC 37 participated in a brief filed by the Municipal Labor Committee, an umbrella group that represents 97 public-sector unions in the city. There are 390,000 workers and 120,000 retirees working under 144 contracts that have fair-share arrangements, according to the MLC. It argued that weakening unions would stretch the economic-inequality gap even further.
'Protects Worker Interests'
"It's important for all public-sector employees to pay their fair share of the cost for the union to collectively bargain successfully in order to protect workers and build up the middle class," MLC Chair Harry Nespoli said in a statement.
The American Federation of Teachers and the AFL-CIO also filed amicus briefs Nov. 13.
Labor unions such as Service Employees International Union Local 32BJ and 1199 SEIU United Healthcare Workers East have rallied around Abood, as have elected officials such as City Comptroller Scott Stringer, Public Advocate Letitia James and U.S. Rep. Jerrold Nadler. "Much as we've had outreach to our members, we've had outreach to the general public and to our elected officials," said State AFL-CIO President Mario Cilento.
He said nearly all state lawmakers he was in contact with, including Governor Cuomo, seemed supportive of the unions' efforts. The group has been proactively mobilizing public- and private-sector unions to prepare for a verdict and said he was certain the labor movement in the state and country would be prepared to react accordingly.
"It's the Supreme Court," he said. "There's not much that anyone can really do. You can't go lobby a Supreme Court Justice. So the best you can do in an instance like this is to prepare for it and be ready to act upon the decision."
AFT Joins Court Battle To Preserve Union Fees
By DAN ROSENBLUM |
The American Federation of Teachers and the American Association of University Professors filed a brief Nov. 13 urging the U.S. Supreme Court not to overturn a 40-year-old ruling upholding union "fair-share" fees.
The petitioners in the case, 10 California Teachers who said being forced to pay union dues violated their First Amendment rights, are seeking to overturn the Abood v. Detroit Board of Education Supreme Court ruling. Doing so would allow members to stop paying dues to the unions that represent them, spurring existential fears by unions that their budgets could grow too meager to offer adequate representation. That, in turn, could prompt even more members to withhold their fees.
Ruling Next Spring
Arguments will be heard over the next few months and the Justices could rule on the case as early as May.
"If the court overturns 40 years of precedent, it will be much harder for unions to do this vital work," AFT President Randi Weingarten said in a statement. "When working people can speak up together, our children are better off."
The friend-of-the-court filing in the case, Friedrichs v. California Teachers Association, argues that while the petitioners may object to their dues being apportioned for political purposes, unions use dues on non-political issues such as implementing and studying education reforms mandated by new laws. Teacher-union grievances also seek to remedy school hazards such as leaky roofs and asbestos contamination, and unions advocate for safety programs that affect students as well as educators, they argued.
'They Benefit From Us'
"While nonmembers like petitioners may not always agree with their union, they cannot claim that they disagree with everything their union does or says, or deny that they benefit substantially from union activities that improve school safety and other working conditions, as well as the bargaining and grievance services unions are compelled by law to provide them," the filing stated.
The AFT and AAUP also looked at the 25 right-to-work states where union membership isn't compulsory and contended that it wasn't enough to encourage free-riders to become dues-payers. "Through amici's experience in right-to-work states, they have found, for example, that recruiting new members requires a much-greater focus on pursuing individualized grievances and taking a more confrontational approach with administrators," they wrote.
Additionally, the unions argue that math and reading scores are lower in the right-to-work states. They point to contracted limits on class sizes, professional development, supports for special-needs students and effective Teacher-evaluation systems.
'Also Benefits Students'
"When educators come together in a union, they are able to advocate not just for better pay and benefits, but for a higher-quality public education for their students," Ms. Weingarten said.
More than a dozen conservative and libertarian groups have encouraged the court to overturn the 1977 decision, according to SCOTUSBlog. The Cato Institute argued that requiring educators to opt-out of separate political fees was too onerous. The Attorney General of Michigan joined those from eight other states to argue that politics was inseparable from collective bargaining.
"When the party on the opposite side of the table is the government, bargaining is unavoidably about the use of public resources and about how elected officials will govern," they wrote. "Bargaining concessions affect fundamental public policy issues such as wages, merit pay, pensions, hours, benefits, and other terms of public employment, the balancing of which affects, for example, the level of public services, priorities within state and local budgets, creation of bonded indebtedness, and tax rates."
In a recent filing, the CTA argued that the court should shy away from making a "radical break" from First Amendment and federalism principles. "Overruling Abood would remove from ongoing political debate a policy matter that citizens of different states have chosen to address differently based on local circumstances," it stated.