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.
* * *