‘Bargaining for the common good’ could come back to haunt the unions in Janus v. AFSCME

“Bargaining for the common good,” which greatly expanded the parameters of collective bargaining, was cooked up in 2014 by leaders from public sector unions and community organizations at a national conference held at Georgetown University. The meeting’s priorities included using “the bargaining process as a way to challenge the relationships between government and the private-sector; working with community allies to create new, shared goals that help advance both worker and citizen power; and recognizing militancy and collective action will likely be necessary if workers and citizens are to reduce inequality and strengthen democracy.”

By 2016, the movement had picked up momentum. At that time, Rachel Cohen wrote a piece for The American Prospect called “Teacher Unions Are ‘Bargaining for the Common Good.’” Prominently featured throughout the article are the United Teachers of Los Angeles and its president, Alex Caputo-Pearl, who claims that collective bargaining is “an important tool available to fight for equity and justice” and should go beyond issues like salaries and work rules. He envisions UTLA as a vehicle to push for collaborative policy alongside community organizations in bargaining for “the common good.”

In a 2017 interview with a radical education group at UCLA, Caputo-Pearl said, “In bargaining for the common good, we see great possibilities for a style of campaign that puts forward a vision for the city as well as for the schools.” He explained that his union is proposing the school district expand green space at schools, press the city for free bus passes for all students and provide a million dollar legal defense fund for students and family members who are facing deportation. Other public sector unions are involving themselves in community issues like affordable housing and improved city services.

Which brings us to the Friedrichs et al v CTA case. In 2016, that lawsuit ended in a 4-4 stalemate in the U.S. Supreme Court due to the death of Antonin Scalia. Had the case been successful, no public employee in the country would have to pay union dues as a condition of employment. The plaintiffs’ lawyers argued, “… bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.” As such, Abood v. Detroit Board of Education should be overturned and teachers should not be forced to pay any money to a union at all. (The 1977 Abood decision, which the unions applauded, stipulated that the fair share system is a workable compromise — workers should have to pony up for collective bargaining but not union political spending.)

But with “bargaining for the common good,” Caputo-Pearl and many other public sector union leaders across the country are insisting that collective bargaining should incorporate blatantly political issues. This could very well doom the union’s case in Janus v AFSCME, the follow-up to Friedrichs.

In Janus, the unions are likely to argue that workplace “coherence” makes it necessary for all employees to subsidize the union. The American Federation of Teachers amicus brief argues that it’s not enough for unions to just “try harder” to recruit dues-paying members. It claims that the presence of members and non-members in a school “sows discord and interferes with the close working relationships necessary to provide high-quality education.”

As teacher union watchdog Mike Antonucci points out, the unions will claim that fee-payers (those who opt out of paying the political portion of their union dues) “are not supporting unions’ political speech in any meaningful way.”

But out of the other side of the union mouth emerges a very different tale. In October Rob Weil, American Federation of Teachers director of field programs for educational issues, spoke to the Baltimore Teachers Union about the Janus case. Part of his talk dealt with the case’s potential impact on unions. While he didn’t use the phrase “bargaining for the common good,” he may well have:

• Unions will be forced to spend larger amounts of time and money on membership maintenance instead of other more progressive union activities.

• The progressive [movement] as a whole, and many specific groups, will lose resources (both $$ and people) which will lessen their impact. Some social partners may, unfortunately, no longer exist.

• The progressive agenda may have to be reduced in reaction to the new rules regarding dues collection.

The Janus oral arguments will take place on Fe. 26. Will “bargaining for the common good” and Weil’s comments doom the unions’ forced dues regime?

Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network.

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