Janus decision is coming...

Should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment? 

This is the key question that the Supreme Court of the United States considered in the Friedrichs v. CTA case, and will again consider this term in the Janus v. AFSCME case. Abood is the Abood v. Detroit Board of Education case of 1977. In that case the court found a middle ground between members who might object to the political stances of labor unions but benefited from the non-political activities such as contract negotiations, contract maintenance, protecting employees against arbitrary punishments from the employers, providing legal representation in wrongful termination cases or in ensuring due process rights, etc. The court recognized in the Abood case that these union activities had a cost associated to them and therefore established “Agency Fees.” Simply stated, Abood permitted unions to collect fair share dues from members who enjoyed the benefits of being in a union but objected to its political activities. These agency fee payers would receive a refund of the portion of their dues used for political activities. For 40 years this has been the law of the land.

 

The Bad and the Ugly

Our expectation is that Abood will be overruled by the end of the current Supreme Court Session in June of 2018. Why? Friedrichs, which asked the same question of the court was a 4-4 split. The addition of Justice Neil Gorsuch, who by all accounts and based on decisions he took on the Court of Appeals, is to the right of Chief Justice Roberts and Justice Kennedy, and has already moved the court to the right. So we expect a 5-4 decision to overturn Abood.

 

What does this mean for us? Much depends on the scope of the decision, but at the very least we must prepare for the following: 1) No more fair share fees from non-members. This would be the immediate result of a decision. The day after the decision is announced, we would lose these fees; 2) Right wing groups like the National Right to Work Foundation are ready to send post cards and other campaign materials to our members encouraging them to drop their membership; 3) A loss of 20% of membership. Based on what we’ve seen in Michigan and Wisconsin, this seems a realistic number. This means locals, CTA and NEA could see a major loss of dues.

 

How do we prepare for this? The main preparation is what we’ve been doing over the last few years: Membership Engagement campaigns at the local level. When members view their union as an insurance policy, it’s very easy to drop membership. Why pay for something that, perhaps, you’ve never needed, and don't see yourself needing in the near future? Yet, when someone is connected to the union because of a personal relationship with site rep, or the membership engagement team or friends on the bargaining team, dropping membership becomes much more difficult. Membership engagement is relational work. Additionally, we have been trying to create a value driven union. Our locals must reflect what our members are passionate about. Members must connect to the people within our unions and the principles our unions support.

 

We’ve also been encouraging locals to start thinking about what their budgets will look like with a 20% loss of membership. Even if local leaders are sure that they will retain all of their members, it is better to be prepared with a strategic budget that provides for a worst-case scenario.

 

Lastly, we need to understand that a Supreme Court decision will establish our reality for the foreseeable future. There are only two ways to overturn such a decision: a constitutional amendment or another Supreme Court case. It took 40 years for the Court’s make-up to change so that Janus could overturn Abood. We should expect to live with Janus for at least the same amount of time.

 

The Good News

Of course, Janus should be worrisome to all of us who are part of the union movement and members of the union family. And while it’s completely appropriate to be worried and angered about the post Janus world, here is the good news: labor unions existed long before Abood. Not only did unions exist before Abood, but the height of union membership happened at least 20 years before Abood. Simply stated, we thrived before 1977. We can do it again!  we simply have to re-learn how to use those muscles. Janus provides us the opportunity to be organizers not just agitators, to be relational with our members not just transactional, to engage with our communities not keep them at arms length, to truly be a movement again, not just an institution.

 

Now is the time to remember the old union adage: Don’t agonize. Organize!

My union journey began with personal engagement...

The Friedrichs case this week has me thinking a lot about the importance of personal relationships and how those can bear fruit in ways we can't imagine. Very much like our students. We sometimes don't know who we are impacting and why, but we do the work, we plant the seed and it will germinate at some point. We do that as teachers because we have faith in that.

It's the same thing as a union member. For me it was Rene Flores, who with a conversation changed me from agency fee payer to site rep and unknowingly put me on this path of leadership and advocacy. That's why it's so important for our reps, and our regular rank and file members to talk to new teachers in the profession and let them know the importance of being a union member.

Unions have proven to be agents of change, we need to recognize that that is our role, no matter how the Supreme Court rules. 

The following piece appeared in the CTA magazine California Educator, in December of 2015, I talk about my journey from fee payer to activist . . . 




Unions Mater

Part 1:  What is a Union?

You’d think by the rhetoric from the right that Labor Unions dominate the landscape as they ravage and bring ruin to the nation’s economy. Here is the fact: according to the Bureau of Labor Statistics, in 2014 “the percent of wage and salary workers who were members of unions—was 11.1 percent, down 0.2 percentage point from 2013” The truth is that unionized workers are at their lowest point since 1912. If it’s labor unions destroying the American Economy, it must be pretty weak for 11% of the workforce to be doing so much damage. Blaming the unions is just another one of those myths that the right has concocted to further weaken unions. I’m always surprised why the question isn’t “How can I get what you guys have?” 

What is a labor union?

labor union: n. an organization of workers formed for the purpose of advancing its members' interests in respect to wages, benefits, and working conditions. (Merriam-Webster)

The piece that isn’t captured by the definition is the impact that labor unions have on non-unionized labor. In other words, the fight of unionized labor is a fight for improving the middle class. When the Sweetwater Education Association was fighting for the School District to honor it’s commitment to our health benefits I would occasionally hear from non-unionized workers say “why do you deserve health benefits? You should be grateful you get what you get!” With the implementation of Obamacare, we have yet another example of an idea that grew out of what labor unions do for their members into the mainstream. Labor unions have worked hard to develop the American Dream and now are attempting to protect it. 

Some historic union victories that have improved the lives of all Americans include:

  • Collective Bargaining
  • The Weekend
  • Child Labor Laws
  • Family Medical Leave Act
  • Paid Leave
  • Minimum Wage
  • Overtime Pay
  • Work Injury Protection
  • Secure Retirement

Many of these victories came during the “Progressive Era” of the late and early 1900s. Other victories came during the 1930s, most notably the National Labor Relations Act or Wagner Act.

Protecting the Promise of Public Education

Furthermore, teachers unions such as ours carry an additional burden. Not only are teachers unions tasked with the same responsibilities of all labor unions: advancing member interests in respect to wages, benefits, and working conditions; they also are charged with protecting the promise of a quality public education for all. Historically, public education has paved the way to the middle class, it has been he vehicle for social mobility. In sum, it has had a democratizing effect in our society. Teachers unions are the only institution that  have stood in the way of so-called reformers who seek only to privatize public education and gain access to tax payer dollars. (I’ll discuss this corporate education agenda more deeply in a future post.)

We need look no further than the mission statement of the California Teachers Association to realize the role of teachers unions today.

“The California Teachers Association exists to protect and promote the well-being of its members; to improve the conditions of teaching and learning; to advance the cause of free, universal and quality public education; to ensure that the human dignity and civil rights of all children and youth are protected; and to secure a more just, equitable, and democratic society.”

So while we look to improve salary and health benefits, we also seek things like smaller class sizes, professional development teacher evaluation, use of technology, the use of resources for Special Education and English Language Learners. 

Clearly, what we do as teachers for the individual students that cross the threshold of our classroom is very important to each and every one of those students. What we do collectively as  part of our professional union is equally important to our community, our state and our nation.


Up next: Labor Union Myths

Gearing up to protect public education

As we settle into 2015, its interesting to reflect on the challenges that we faced last year. We were victorious on so many fronts: We came together to defeat Brand and his unilateral health benefits change; we won a PERB ruling that has positive implications for every CTA local union; we successfully negotiated a contract that made movement in all areas identified by members as top priorities; we reached a favorable resolution on two major arbitrations; we mounted a campaign that saw four of our five candidates elected. Its no wonder that the San Diego and Imperial Counties Labor Council has recognized the Sweetwater Education Association as Union of the Year.

Yet, these victories do not mean that all of our problems have disappeared. There are clearly issues that we must continue to deal with. The election of a new school board, and even the eventual naming of a new superintendent, will not magically make the concerns at sites go away. As President, I've had to intervene in situations where bullying administrators from CPM and HTH created truly toxic environments at their sites. Although we have seen resolution to many of the problems at these sites, we continue to deal with the practice of administrators and district officials ignoring progressive discipline and going straight to suspensions without pay. Dealing with these types of matters, along with salary, benefits, and working conditions, are a part of what unions do as their day to day responsibilities of representation; however, there is so much more we need to address.

Its not paranoia if theyre really after you

We are living in an environment where public education is undeniably under attack. Since the 1980s with the publication of A Nation at Risk, there has been a strong push to discredit the American public education system. No Child Left Behind and the high stakes testing that came with it, including the new SBAC tests, have been about composing a picture of failing schools, and laying blame squarely on teachers. Why?

According to the US Department of Education there are approximately 98,000 public schools in the United States, serving close to 50 million students. Organizations like ALEC (American Legislative Exchange Council) and their corporate allies have the agenda of dismantling public education for the simple goal of creating profit-making opportunities. In other words, If you have failing schools, we have the program that will save them, for the low, low price of…” The only thing that has stood in their way up to this point: teachers unions.

To deal with unions, the narrative of the bad teacher becomes critical. If teachers are to blame, unions are depicted as the root of the problem for protecting them.  The next step, then, is to discredit unions and take away their power. In states like Wisconsin and Michigan we have seen the virtual disappearance of union rights in order to eliminate the bargaining abilities of teachers unions. Even in Illinois, where the Chicago Teachers Union has proven to be a powerful force to contend with, the governor has recently signed a decree that effectively attempts to impose right-to-work rules. In California, we have been lucky enough to have a Democratic governor and State Assembly that has resisted this national movement, but we cant continue to rely on luck. Cases like Friedrichs v. California Teachers Association attempt to circumvent state legislatures and take issues like fair share payment out of the hands of elected representatives and put them in the hands of a very unfriendly US Supreme Court.

The success of our union will depend on our ability and willingness to engage with the larger issues before us: high stakes testing, protecting our community schools from the encroachment of charters, the erosion of labor rights, and the de-professionalization of teaching, to name just a few. We cant leave this battle up to CTA or NEA, as if somehow our state and national organizations exist apart from us. This fight is everybodys fight.

Our victories over the last 19 months have prepared us to take our unionism to the next level. While we will always focus on our local issues, our every action must be geared towards preserving the promise of public education for all; it’s critical for a democratic society. This is our fight and we need to prepare for it. I hope that you will join me, and your SEA brothers and sisters, as we champion students, teachers, our community, and public education!