This article first appeared on FlashReport.org.
Just in time for Christmas, the Los Angeles teachers union gave Thomas Few some good news: a refund of $433.31 dues he paid and the union’s promise to stop taking $80 per month from his paycheck.
Few said he is “elated by the victory,” but also determined to press forward with his lawsuit against the Los Angeles Unified School District and United Teachers of Los Angeles.
“On June 27, the Supreme Court said government employees – including my fellow teachers in Los Angeles Unified – have the right to fund or to not fund union activities,” Few said. “Teachers shouldn’t have to make a federal case out of this.”
Beginning in June, Few told United Teachers of Los Angeles three times to stop taking cash from his paycheck. The third time, he says he placed a copy of his demand directly into the hands of a teachers union official visiting the San Fernando Valley school where Few teaches special-ed children.
But UTLA refused to stop taking his money. Then, on Nov. 13, the nonprofit California Policy Center and the Liberty Justice Center filed a federal lawsuit on Few’s behalf against UTLA and LAUSD. Two weeks later, UTLA did an about-face and sent Few the refund check.
The check came with a letter from UTLA executive director Jeff Good explaining that even though Good believes UTLA still has the right to take Few’s money, they are going to stop “rather than expend dues money on litigation.”
Gold claimed Few’s federal lawsuit suggested the teacher had a “misimpression that the union had not accepted your resignation.” In fact, Good told Few, the union had accepted his resignation.
But payments to the union were another matter, Good wrote: Few had “signed a separate agreement with the union, apart from your agreement to become a member, committing [Few] to pay an amount equivalent to dues to the union ‘irrespective of your membership status.’”
California Policy Center CEO Mark Bucher, one of the attorneys representing Few, called that a “desperate attempt by UTLA to skirt the Supreme Court’s decision in Janus v. AFSCME.”
In that June 27 decision, the Supreme Court held that forcing government employees to join political organizations like UTLA violates their First Amendment rights.
“Arguing that Mr. Few can leave the UTLA as long as he continues to pay UTLA at the same rate is like a Vegas magician sawing a woman in half,” Bucher said. “It’s sleight-of-hand. In this case, it’s also deceptive and illegal.”
Bucher said the union’s capitulation does not end the federal suit, now scheduled for a February hearing in the U.S. Court in downtown Los Angeles.
“Even though UTLA has stopped taking money out of Mr. Few’s check, he does not intend on dropping the suit,” Bucher said. “Few is asking the court to declare that UTLA does not have the right to take his money, or the money of countless other teachers who are in the same position.”
Until his February hearing, Few said he’s focused on the spirit of the season. That means “spreading the good news to all of California’s government employees: you too qualify today for an end to dues deductions from your union.”
Then striking a lighter note, Few added, “With Christmas around the corner and the usual family expenses,” he says, “my wife and I are stoked to have our money back.”
Will Swaim is president of the California Policy Center. Contact him at Will@CaliforniaPolicyCenter.org.
In June 2018 the U.S. Supreme Court ruled on the Janus vs AFSCME case. The result of the decision is that public employees not only have the right to refuse membership in a union, but also the right to refuse to pay so-called “agency fees” to the union.
Unions had been preparing for years for a ruling like this. The Janus case was the successor to a similar case, Friedrichs vs the CTA, which after taking years to work its way through lower courts, ended up deadlocked after the untimely death of Justice Scalia in early 2016.
To hear the reports over the years, and especially in late 2017 and the first half of 2018, Janus was going to be a catastrophe for public sector unions. On the website of a California AFSCME Council, a news article late last year was titled “Judging Janus: Will California’s Unions Survive?” When the Janus decision was announced last June, Time Magazine published an article entitled “The Supreme Court’s Union Fees Decision Could Be a Huge Blow for Democrats.”
Not so huge, actually. What actually is happening post-Janus, at least so far, might remind one of the Y2K virus. Much ado about nothing. The unions were ready.
How public sector unions prepared for Janus, especially in California, is testament to their incredible power.
In June 2018 the California Policy Center published a list of the laws pushed by public sector unions in the state legislature, all of which were designed to minimize the impact of Janus. Here is an updated list:
1 – Requires public employers to conduct a public employee orientation for new employees within four months of hire, and provide a union representative with at least 30 minutes to make a presentation – AB 2935 (2016, passed).
2 – “Would require government agencies to negotiate the details of when, where and how unions could have access to recruit new employees; and to provide job titles and contact information for all employees at least every 120 days (as reported by EdSource) – AB 119 (2017, passed).
5 – Requires the time, date and location of new public employee orientations to be held confidential – SB 866 (passed).
7 – Makes employers pay union legal fees if they lose in litigation but does not make unions pay employer costs if the unions lose – SB 550 (passed).
THE CONTRACT TRAP
Take a look at this example of an actual recent agreement between an employee and their government union:
As can be seen, this contract has been modified to read “if I rescind my membership and if existing law changes so that non-members are no longer required by law to contribute, I agree that the contributions authorized above shall continue and this authorization shall automatically renew annually, irrespective of my membership status, unless and until I submit a timely signed revocation of this authorization. To be timely, a revocation must be mailed to OCEA’s office, postmarked between 75 and 45 days before such annual renewal date.”
This is known as “contract trapping.” Adding this type of language to contracts is one of the principal means by which public sector unions are retaining current members, and entrapping new ones. Whether or not cleverly written contract traps override the Janus ruling is the issue in a recently filed lawsuit, Few vs. UTLA.
In this case, the plaintiff, Thomas Few, is a special education teacher in Los Angeles. Few was told he could end his membership in the United Teachers of Los Angeles union. But even as a nonmember, the union told him that he would still have to pay an annual “service fee” equivalent to his union membership dues. Few’s position, which is likely to be upheld, is that he cannot be compelled to pay anything to a union he does not choose to join, regardless of what the payment is called.
UNION MEMBERSHIP POST-JANUS
Assessing union membership is an inexact science. The tax returns filed by the unions, Form 990s, are available online. But these forms don’t report the number of members, only the revenue collected, and they are usually a year or two behind.
For example, 2019 will be the first full year that unions will have been living under Janus, and those tax returns probably won’t be available online until late 2020 or later in 2021. The only other way to learn the direction of union membership trends is to rely on what the unions themselves make public, or – sometimes this is effective – to make public records act requests to the payroll departments of public agencies.
On that score, so far the unions seem to be weathering Janus just fine. Based on the public record act requests they made, the Sacramento Bee reported last month that union membership among California’s state workers (not including higher education or K-12 employees) was up about 300 since June, reporting 131,410 dues paying members in October, vs. 131,102 in June. The same report cited the California Correctional Peace Officers Association gaining more than 1,500 members between June and August 2018, and California’s Professional Engineers union gaining 340 members over the summer.
This evidence suggests union membership post-Janus is holding steady due to the new laws and contract language the unions have working in their favor. But unions continue to adapt to the inevitable loosening of the rules that have made it easy for them to collect dues and fees from public employees. Public sector union leadership understands that people either join or quit public sector unions for two reasons – economic, and ideological.
The economic argument for belonging to a union is nuanced. Clearly union “negotiations” with politicians these unions can make or break in the next election have borne fruit. In California, public employees earn pay and benefits well in excess of what private sector workers earn. On the other hand, union dues often exceed $1,000 per year, and public employees may want to keep that money, particularly if they believe the unions have wrung as much as they’re going to wring out of public budgets that are already stretched thin.
Ideological reasons to choose or reject union membership formed the premise of the Janus case; that all public sector union activity is inherently political, and constitutional freedom of speech protection means that public employees cannot be forced to support political activities they disagree with. How many public employees object enough to the political positions of their unions to quit, or never join? To minimize this, unions are pivoting towards emphasizing the services they provide, and downplaying their political activism.
It remains up to opponents of public sector unions to not only fight to enforce Janus, and help members withdraw from unions, but also to continue to educate public workers and the public at large about how much public sector unions have harmed California.
The public schools in California provide a good example. There is a growing nonpartisan consensus that unionizing public education has been a disaster. As argued in the Vergara case in 2014, union work rules in the areas of dismissal, tenure, and layoffs, have had a disastrous impact on the quality of education in California’s most vulnerable communities. Unions have been the implacable, and very effective opponents of charter schools and school vouchers, which would only help improve education. And unions have promoted left-wing classroom indoctrination, something that should even concern leftists, insofar as it takes time away from teaching fundamentals.
Another compelling example of public sector unions harming California are the status of public sector pensions. California’s pension systems, by and large, remain only around 80 percent funded, even though the stock market is at the tail end of a record breaking ten year bull run. In California, public sector pensions and other retirement benefits average over $70,000 per year for 30 years of work, many times what Social Security offers, and there isn’t enough money set aside to pay them. Payments into California’s state and local pension systems are projected to double, from roughly $30 billion per year today to nearly $60 billion per year by 2024. Government unions negotiated these unsustainable pension benefits, and consistently fight against attempts at reform.
Will public sector employees vote with their feet, and leave their unions? Post-Janus, that is easier than ever, and pending litigation will make it easier still. But it is not clear how many of them will make that choice.
* * *
The landmark ruling by the US Supreme Court in the Janus vs AFSCME case has given government workers the right to not only refuse union membership, but to refuse to pay any dues or fees to that union. In the wake of this ruling, new lawsuits have been filed on behalf of plaintiffs who allege the unions are attempting to circumvent the Janus ruling.
Enforcing Provisions of the Janus Ruling
A notable example of such a case is Few vs UTLA, In this case, the plaintiff, Thomas Few, is a special education teacher in Los Angeles. Few was told that he could end his membership in the United Teachers of Los Angeles union. But even as a nonmember, the union told him that he would still have to pay an annual “service fee” equivalent to his union membership dues. Few’s position, which is likely to be upheld, is that he cannot be compelled to pay anything to a union he does not choose to join, regardless of what the payment is called.
This lawsuit and others are likely to ensure that the Janus ruling is enforced. The practical result will be that government unions lose some of their members, and some of their revenue. But how many? After all, there is a valid economic incentive for public employees to belong to their unions. In California, unionized state and local workers earn pay and benefits that average twice what private sector workers earn.
For this reason, most people refusing union membership will be doing so for ideological reasons. They will find their objections to the political agenda of these unions to be more compelling than the economic reasons to support them. But there are additional ways the unions compel public employees to remain members.
For example, in some cases, within the same bargaining unit, unions will negotiate pay and benefit packages for their members that are more favorable than the pay and benefit packages they negotiate for the non-members. In some cases in academia, only union members are permitted to sit on faculty committees that determine curricula and hiring decisions.
Challenging Exclusive Representation
This right to exclusive representation is the next major target of public sector union reformers. They argue that it is unconstitutional for public sector unions – whose activity the Janus ruling verified is inherently political – to advocate on behalf of non-members, or to represent non-members, or to exclude non-members from participating in votes or discussions on policy, or to deny non-members the same negotiated rates of pay and benefits as members, or, possibly, all of the above.
Just filed this week in the US Supreme Court is the case Uradnik vs IFO, which worked its way through the lower courts in under a year. It is possible it will be heard in the 2019 session. This case calls for an immediate end to laws that force public-sector employees to accept a union’s exclusive representation.
Kathleen Uradnik, a professor of political science at St. Cloud State University in Minnesota, alleges that her union (“IFO” or Inter Faculty Organization) “created a system that discriminates against non-union faculty members by barring them from serving on any faculty search, service, or governance committee, and even bars them from joining the Faculty Senate. This second-class treatment of non-union faculty members impairs the ability of non-members to obtain tenure, to advance in their careers, and to participate in the academic life and governance of their institutions.”
There is a strong possibility that within a few years, if not much sooner, this case will be heard and ruled on by the US Supreme Court in favor of the plaintiff. If so, the future of public sector unions will be altered in ways even more significant than Janus. Unions will be prohibited from discriminating in any way against non-members who are part of their bargaining unit. They also will be powerless to stop public employees from withdrawing completely from their bargaining unit to – gasp – represent themselves in salary and benefit negotiations, something that professionals in the private sector have always done.
The Impact of Non-Exclusive Representation
An impact of a favorable Uradnik vs IFO ruling that would have even greater consequences would be if it enabled the emergence of competing unions. What if two or more unions represented a bargaining group? What if a super-union emerged whose membership welcomed government workers from an entire state, or entire profession, or the entire nation. What if these super-unions embraced a political agenda that ran counter to the left-wing agenda that has dominated public sector unions for decades?
The possibilities are tantalizing.
What if faculty members in America’s colleges and universities had the option to join a conservative union with a national membership that advocated a return to pro-Western college instruction, an end to reverse discrimination, a restoration of academic merit as the sole criteria for admission and graduation, and the abolition of divisive courses of study that offer no useful skills? What if conservative faculty members who have been silent all these years had the power of a national union to protect them from the Left?
What if K-12 teachers across America had a national union to protect them when they objected to curricula designed to turn immigrant children against the people and traditions of their host culture? What if police and firefighters across America had a national union that advocated unequivocally for a merit-based system of immigration? What if civil engineers across America had a national union that was implacably opposed to the environmentalist extremism that has doubled the cost of infrastructure projects and quadrupled the time it takes to complete them?
Enforcing Janus will begin to undermine public sector union power, which is deployed almost exclusively in the service of the Left. Enforcing Uradnik may actually create a balance of power between public sector unions that lean Left vs Right, and that, in turn, would represent a seismic shift in the political landscape of America. At the least, it would neutralize the tremendous boost that public sector unions have given the political Left in America. At most, it might create a hitherto unthinkable consensus in America that public sector unions are indeed inherently political, and have far too much political influence, and must be subject to draconian restrictions including losing the right to collectively bargain, if not complete abolition.
* * *
Imagine you’re hoping to support a candidate for local office who will enact reforms that will improve your city, maybe even save it. Someone who will fight tirelessly to eliminate work rules that force agencies to hire more people than are actually necessary. Someone who will insist that incompetent public employees are fired. Someone who will finally do something about compensation and benefit packages that are threatening to bankrupt the city.
What do you say to them, when their response to your suggested reforms is this: “That’s all great, and I’d like to do it all, but who’s going to give me the million dollars for my campaign that I’m not going to get from the public employee unions if I actually try to do any of it?”
That is the sort of conversation that takes place, or would take place if anyone bothered to ask, multiplied by thousands, every election cycle in California.
Public employee unions run California. They exercise nearly absolute power in the state legislature, and in nearly every city, county, school district and special district. Can public sector union power ever be stopped?
Earlier this year, a California Public Policy Center analysis estimated that for 2016, total membership in California’s public sector unions was 1.15 million, and total revenue was $812 million. This equates to a stupefying $1.6 billion that these unions collect and spend every election cycle.
California’s Public Sector Unions (including local affiliates)
Estimated Total Membership and Revenues
While the figure of $1.6 billion per election cycle is a credible estimate, attempts to come up with precise information on California’s public sector union dues is nearly impossible. In California there are many hundreds, if not thousands, of individual local public sector union affiliates. All of them file separate 990 forms, often including financial transfers between entities that have to be offset in any thorough analysis.
Determining how much of California’s public sector union revenue is spent on politics is also a nearly impossible task, despite several online “transparency” portals, including OpenSecrets, FollowTheMoney, VoteSmart, and the California Secretary of State’s Campaign Finance “Power Search.” These portals are primarily focused on national races, and in some cases, statewide races, but none of them descend to the thousands of California’s local races, where hundreds of millions of dollars are spent every election.
Moreover, the portals can only display the information they’re given. California’s government unions, like most sophisticated political players, mask their total spending through multiple committees and transfers.
An excellent analysis of how much of teachers union dues end up being spent on political campaigns was written in 2015 by RiShawn Biddle, editor and publisher of Dropout Nation – a leading commentary website on education reform. He writes: “The pro bono consultants who went through the unions’ published national, state, and local tax returns estimated based on their research, interviews, and sampling that roughly one third of the unions’ efforts went toward political advocacy.”
One-third. In California, that is equal to approximately $540 million per election cycle. That is, California’s public sector unions likely spend over a half-billion per election cycle. And this spending does not include other “non-political” spending. For example, not reportable as political spending can include massive public education campaigns that are designed to influence voters but aren’t engaging in explicit advocacy.
Also not considered political spending, but having immense political impact, is litigation. There are countless examples of how government union power is exercised in California’s courts. Pension reforms in San Jose and San Diego, approved by voters, were eviscerated through relentless court challenges. Statewide pension reform pushed by Gov. Brown and partially realized in the PEPRA legislation of 2012 was undermined, and continues to be undermined, beneath an ongoing avalanche of lawsuits. Charter schools are the targets of continuous litigation designed to wear them out. You can do this, when you have hundreds of millions of dollars pouring in every quarter, year after year.
California’s political landscape over the past 20-30 years has been defined by public sector unions. While the recent Janus v AFSCME decision by the U.S. Supreme Court has taken away the ability of government unions to compel payment of fees, the unions are resorting to clever contractual gyrations to make it extremely difficult in practice for anyone to stop paying. That too, will have to sort itself out in court, where union money guarantees tenacious defense and endless appeals.
Even if public employees can easily withdraw from paying government unions, in many cases, why would they? These unions have made California’s public employees some of the highest paid public servants on earth. A California Policy Center study in 2017 concluded “The composite average total compensation (pay and benefits) for a full-time city, county or state worker in California during 2015 was $121,843; for the average full-time private sector worker in California, including benefits, it was 62,475, which is 51% of what the public sector worker earned.” As a result, it is no coincidence that California’s state and local governments confront over $1.0 trillion in debt and unfunded pension liabilities.
The political and financial power of public sector unions has transformed California politics. Their influence is felt everywhere; education, environmental policy, the business climate, important cultural issues. In every area, their primary agenda is to grow their membership and influence. The effect of this agenda is pernicious. If schools fail, spend more public money on schools. If crime increases, hire more police and build more prisons. Wherever society fails, grow unionized government.
Perhaps the next major U.S. Supreme Court case concerning government unions will abolish them due to this inherent conflict between their agenda and the public interest. Perhaps someday they will be outlawed entirely. That would be a happy, happy Thanksgiving indeed.
* * *
The recent Janus decision by the US Supreme Court gives public employees the right to quit union membership – or to never join a union in the first place. This sweeping ruling not only banned unions from requiring non-members to still pay so-called “agency fees,” but it required unions to obtain “affirmative consent” from public employees before enrolling them as members.
Needless to say, in states like California, where public sector unions exercise nearly absolute control over the state legislature, several laws were swiftly passed to thwart the impact of Janus. In terms of employer rights, two of these laws are particularly noteworthy:
SB 285 prohibits a public employer from “deterring or discouraging” public employees from becoming or remaining members of an employee organization. Public employers are already required to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill grants the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board is stacked with labor veterans and is very unlikely to ever rule in favor of a public employer vs. a union.
SB 550 requires employers to pay union legal fees if they lose in litigation vs. the unions.
Imagine the chilling effect these two laws are having on public employers. Can they say anything about union membership? What if they say “unions membership is good,” but because they didn’t say “union membership is great,” they deterred someone from joining the union, or renewing their union membership? Not only is SB 285 denying free speech to public employers, but it is so vaguely written that it is impossible for public employers to have any idea what might constitute a violation of the new law.
Moreover, if a union decides to make an example of any public employer whose communications with public employees are deemed transgressive, they will not be sued in a courtroom, but in an action before the biased Public Employment Relations Board.
CALLING ALL FREEDOM LOVING CALIFORNIA AGENCIES
If your school district, transit district, water district, city or county wants to challenge, or at least compel more clarity, with respect to the wording of SB 285, there is something you can do. Contact CLEO’s Matt Patterson, at firstname.lastname@example.org, and let him know your agency is interested in fighting for employer free speech.
With only a few agencies as committed plaintiffs, it will be possible to go to court and ask for a declaration of rights, explicitly stating what an employer can and cannot say to a public employee regarding union membership. As it is, even saying nothing can put public agencies at risk.
Participation in this lawsuit will cost the plaintiffs nothing. It is an opportunity to clarify your rights as public employers.
California’s Public Employment Relations Board – 2018, currently stacked 3-1 in favor of public sector unions
- Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
- Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
- Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”
The other two:
- Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
- The fifth position is currently open on PERB, meaning that right now there is a 3-1 advantage favoring board members with union affiliations. Just vacating the PERB board was a possibly neutral party, Mark C. Gregersen, who according to his biography on the PERB website had “a career in public sector labor relations [that] spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”
A SUMMARY OF CALIFORNIA’S ANTI-JANUS LEGISLATION
In response to Janus, California’s unions representing public servants are doing the following:
4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550
This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years
In Search of Government Union Transparency, July 2018
A Post-Janus Agenda for California’s Public Sector Unions, February 2018