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Unions Tune Up for the Freeloader Blues
- RICHARD STEIER
- Feb 1, 2016
For public-employee unions, the gearing up of the race for President that began 2016 prompted less anticipation and anxiety than another major issue that helped launch the new year but whose outcome will not be known for months: the U.S. Supreme Court's hearing on fair-share--known in New York as agency-fee--payments required of Teachers in California.
Based on the reactions of the Justices during the Jan. 11 proceedings, there was reason to be pessimistic about the decision, which is expected to come shortly before the High Court adjourns for the year in June. While the four reliably left-of-center Justices seemed likely to uphold the California law requiring that public workers who are under the banner of unions pay the equivalent of dues even if they choose not to become members, there was no sign of the fifth supporter needed to produce a majority in favor of preserving that statute.
They had hoped, based on previous comments that he had made, that Justice Antonin Scalia, the most-vocal member of the court's conservative wing, might provide a rare cross-over in this case. But his comments during the hearing--"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition"--dovetailed with the claim by plaintiffs' lawyers that their complaint about the money being used for political purposes with which they disagreed was valid despite a provision that permits employees to receive a rebate of the portion of the dues equivalent that was devoted to political action.
Anthony Kennedy, the perennial swing vote on the court, made a similar point while remarking, "And is it not true that many Teachers... strongly, strongly disagree with the union positions on Teacher tenure, on merit pay, on merit promotion, on classroom size?"
And Chief Justice John Roberts, who surprised most of the nation by casting the deciding vote upholding Obamacare, didn't seem inclined to side with his liberal colleagues, noting that as seemingly nonpolitical an issue as mileage reimbursement had a political component because the money government spent on it diminished its resources to do other things.
The fear that none of the three men were merely playing devil's advocate before one of them in the end would decide that a larger public good was served by letting the law be folded under the precedent of a 1977 Supreme Court ruling upholding the agency-fee payments, Abood vs. Detroit Board of Education, has led to behind-the-scenes scrambling by the city's two largest public-employee unions, District Council 37 and the United Federation of Teachers.
The logic behind the agency-fee requirement is obvious: the improvements in wages, fringe benefits and working conditions that a public-employee union is able to obtain work to the advantage of everyone within its bargaining unit, and so even those workers who opt not to be full union members should have to pay something in return for what they gain through the union's efforts.
It is why there is skepticism that the 10 California Teachers who are the plaintiffs in the case are as altruistic as they profess to be. It is one thing for them to claim that they disagree with the positions their union, the California Teachers Association, has taken on matters like tenure rights, seniority-based layoffs and merit pay. But lead plaintiff Rebecca Freidrichs has gone a step further in arguing against her economic self-interest by objecting that "the pension, pay and benefits packages pushed by unions have political implications--because every dollar spent on increased public-sector compensation is one not spent on libraries, parks and roads."
As far as is known, Ms. Friedrichs has not forsaken any pay raises negotiated by the CTA, or signed over future rights to her pension to a charitable organization or three. And so there is the suspicion that she and her nine colleagues have pushed the issue this far at the urging of the right-wing groups that are bankrolling the lawsuit with an eye toward weakening public-employee unions by making the payment of dues or its equivalent largely voluntary. The California case covers only that state, but just as a previous successful challenge in Los Angeles Superior Court to the Teacher tenure law there spurred an ongoing court case affecting New York State's version, the Supreme Court upholding lower-court rulings against the fair-share payments would undoubtedly produce similar litigation here and throughout the nation.
The automatic deduction of dues from employee paychecks in the past has been taken too much for granted by some DC 37 officials. Legend has it that then-DC 37 Executive Director Victor Gotbaum in the late 1970s decided that Lillian Roberts would not be his eventual successor after he found out that she wanted to call a strike at Bellevue Hospital just as the State Legislature was due to consider a renewal of the Agency Shop Law, leaving him aghast at her inability to see the bigger picture.
After a corruption scandal in the late 1990s swallowed up the man Mr. Gotbaum chose instead to succeed him, Ms. Roberts came out of retirement in 2002 to serve as the union's executive director, but for most of her dozen years in the job displayed a decidedly cavalier attitude to signing up new union members precisely because the agency-fee requirement offered a kind of security blanket.
There were some who were shocked to learn about a decade ago that roughly 20,000 employees represented by DC 37 were not actually union members. There were several factors that contributed to the burgeoning number, including shortages of staff to sign them up and some staffers who were less than industrious about performing this aspect of their jobs. But there was also a political element: some local presidents not known for zealousness in pursuit of their members' rights worried that signing up new employees might work to their own detriment if political opponents persuaded them to vote for a change at the top of the locals. It wasn't as if they were losing any dues money by not enrolling them. And if those agency-fee- payers were unlikely to get involved in union activities, that wasn't necessarily a drawback in the eyes of those local leaders: even as the Bloomberg administration began cutting the city workforce due to budget problems, they didn't believe that more-politically-engaged rank and files were good for their futures.
By the summer of 2013, the fair-share suit was playing out in California, and the head of DC 37's national union, American Federation of State, County and Municipal Employees President Lee Saunders, tapped Henry Garrido, who would eventually be named to succeed the retiring Ms. Roberts, to sign up as many as possible of the now-startling number of 27,000 agency-fee-payers as full union members. By the following summer, when the Los Angeles court ruling in favor of the 10 Teachers and confirmed Mr. Saunders' concerns about the possible storm to come, Mr. Garrido had succeeded in whittling down the agency-fee-payers to 14,000. But a combination of factors--including new workers replacing those who retired and transfers between agencies that haven't been accompanied by transfers of union membership--has complicated further progress to the point where he said at the beginning of January that while he had been able to collect 23,000 new membership cards, there are still 13,000 agency-fee-payers under DC 37's banner.
The problem is less-acute at the UFT, but the concern persists, as it does for smaller municipal unions. That's because the loss of agency-fee requirements would figure to reverberate beyond the numbers of those with that status who could then forsake paying any form of dues. There is the added concern that those who are currently union members might reconsider if the joys of freeloading--receiving all the compensation improvements the union negotiated without having to pay for those gains--dropped into their laps.
More than a few union members can do the math that's more complicated than subtracting dues deductions from their paychecks: the less money flowing into union coffers, the more difficult it is to supply the same level of service to members, whether through in-house benefit funds or staff and other resources to lobby city or state government. But it's believed that up to 20 percent of municipal workers might opt out of union membership and the accompanying dues obligations, and a loss of that magnitude would undoubtedly weaken labor. It would also figure to have a ripple effect in the political realm: besides being able to boast of fewer dues-paying members likely to take guidance from labor leaders on which candidates to support, even those who remained in the fold might be affected sufficiently by a fall-off in services to question the benefit of looking for the union label when they cast their ballots.
There is also the worst-case scenario in which the loss of dues-paying members turns out to be greater than feared. Membership anger that spurred two transit strikes in 1980 and 2005 eventually turned against union leadership when the walkouts did not have the happy ending produced by the 12-day job action in 1966. The main reason was that the strike of a half-century ago led to passage of the state Taylor Law carrying highly effective deterrents for future repeats by public workers.
Those included the loss of two days' pay for every day on strike, large court fines, and the suspension of dues-check-off rights. In 1982, Transport Workers Union Local 100 was forced to seek the mercy of a judge, not because of the $900,000 fine he had imposed but because it was being crippled by the loss of automatic dues deduction combined with members' unwillingness to keep up with their dues when Local 100 was forced to try to collect them by hand at work locations.
The 22 days' pay they lost as a result of the 11 days they'd spent on strike may have been a steep-enough penalty to make it financially unfeasible to stay current on their payments. But the 2005 strike lasted only three days, costing members' six days' pay, yet four years later more than 10,000 of them were in bad standing because of nonpayment of dues.
The more-likely explanation in that case was that they were unhappy about the contract that emerged from the rubble of that strike, which required them to pay a share of their health-benefit premiums for the first time. But that's the sort of disgruntlement that routinely sets in among rank-and-file workers stuck with disappointing contracts that come from a normal, strike-free bargaining process.
And the alternative way of resolving a bargaining stalemate--contract arbitration--can be a costly proposition running into the millions of dollars for some city unions. That would become a possibly-unaffordable luxury if their treasuries suddenly were depleted by significant numbers of members deciding to take a walk away not from their jobs but rather the unions themselves.
All of which helps explain why for some labor organizations, there is at least as much riding on the Supreme Court's decision as there is on who will be elected to head another branch of government in November.
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