On first blush, the latest effort by Gov. Jerry Brown and Democratic legislators to give public-employee unions access to public agencies to hold “orientation” seminars with new hires is an unfair special privilege not normally provided to private groups. It’s even more disturbing that the legislation authorizing such access is being rammed through the Legislature in a secretive manner without the full hearing and vetting process.
But critics of this brazen example of union muscle-flexing should take heed. It’s the latest reminder that even public-employee unions understand that the world is about to change. It’s only a matter of time before they lose a key to their enduring power: the current system by which public employees are forced to pay dues to their respective unions, even if they have no desire to give a large chunk of their paychecks to these unions.
To be certain, S.B. 204 and A.B. 119—the bills to grant unions unfettered on-the-job access to employees—are cynical measures. They are an abuse of the budget-trailer bill process, which is intended for last-minute and noncontroversial technical fixes to budget matters. Instead, these measures are substantive and controversial. Such an abuse reminds us of the lengths the majority party will go to protect union privilege.
Under the current system, the state deducts dues from workers’ paychecks. Employees can opt out of a portion of those dues (those used for politicking) but must pay “agency fees” for collective bargaining. Currently, less than 10 percent of CTA’s members withhold some dues. According to employees who have tried it, even this limited opt-out process is unnecessarily cumbersome – which is to be expected, given that unions have no interest in giving up any dues.
However, they have long known that a day of reckoning is coming. The California Teachers’ Association published a document back in 2014 called: “Not if, but when: Living in a world without Fair Share.” “Fair Share” is the unions’ euphemism for the mandatory payment of agency-shop fees. The core message of the document itself was unobjectionable. It called for the union to engage its membership more effectively by convincing teachers of the importance of being members of CTA through organizing and communication efforts.
Better communication is great and will likely help unions survive the coming changes, but they need to do so without the iron fist of state mandates. These recent bills, like the prevailing system, rely on force. And at some point in the next year or two, the unions, like other observers, expect the U.S. Supreme Court to toss aside or roll back mandatory-dues requirements. Justice Neil Gorsuch appointment to the U.S. Supreme Court is a big part of the equation.
Of particular interest is an Illinois case out of the Seventh Circuit called Janus v. AFSCME. The question it poses is whether the court should overturn its 1977 decision in Abood v. Detroit Board of Education, which held that it was constitutional for governments to collect mandatory “agency fees” from employees related to their unions’ bargaining activities, finding that only those mandatory fees that explicitly support unions’ political activities violated the First Amendment.
The high court hasn’t yet agreed to hear the Janus case. One good reason to expect they will is that they already had planned to hear a challenge to Abood in the form of Friedrichs v. the California Teachers Association, a case in which nine California public-school teachers—including the lead plaintiff, who is from Orange County—challenged mandatory-dues collection. The unexpected death of Associate Justice Antonin Scalia in February 2016 left the court without what would have been the deciding vote in the case. Following his death, the court split 4-4, meaning the decision from the Ninth Circuit upholding the current system was allowed to stand.
With Gorsuch now having filled Scalia’s seat, Janus gives the court a chance for a do-over. While most observers expect the court to issue a decision unfavorable to public-sector unions, there are a variety of forms this could take, ranging from overturning Abood and ending mandatory agency fees to more modest changes in the way the opt-out process works.
But California’s union-friendly officials are leaving nothing to chance. Brown and other union-allied politicians want to ensure the unions can continue to strong-arm teachers and other employees into paying dues and staying on the roster.
We’ve been down this legislative road before. In 2015, before Friedrichs was decided, legislators introduced a more robust version of the orientation bill that would have required almost every public employee to show up in person and have a meeting with their designated union representative. It, too, was introduced as a last-minute gut-and-amend bill that was moved forward without a hearing process.
Similar legislation was then reintroduced last year, notes John Fensterwald of the education-focused website EdSource. The 2016 bill failed in the face of opposition from school districts and local agencies worried about costs and other problems. Opponents also were concerned about the precedent that would be set essentially by allowing outside groups to lobby for members on the public’s dime. Wouldn’t this lead to other groups demanding equal time?
Fensterwald characterizes the newest version of the orientation bill as a compromise. “The Department of Finance calls it ‘practical middle ground,’ providing ‘meaningful access’ while recognizing public agencies vary in size and operation. It leaves it up to unions and employers to negotiate basic details, such as orientation, frequency, form, location and whether there will be in-person meetings for unions,” he wrote.
Well, it’s certainly less offensive for school districts and public agencies than the original proposal. But it’s no compromise for those employees who don’t want to endure a mandated indoctrination session led by a group that wants to keep its hands in their wallets.
Under the current system, even young and energetic teachers are forced to subsidize unions that bargain for seniority-based hiring rules that force districts to lay off the young and the energetic, while keeping on board older, ill-performing teachers. Employees—who also are taxpayers and citizens—are forced to subsidize a bargaining system that secures higher pension benefits that run up debt and come at the expense of other public programs.
This latest effort shows the degree to which public-employee unions are able to rig the rules of the game, thanks to their continuing control of the Legislature and the governor’s mansion. They are bad policy and bad news, of course, but they also should provide reformers with encouragement. They show that unions know what’s coming down the pike, and are scrambling to maintain their power.
Steven Greenhut is a contributing editor to the California Policy Center. He is Western region director for the R Street Institute. Write to him at firstname.lastname@example.org.