More than the unions bargained for?

By Larry Sand
February 6, 2018

A recent tactic, “bargaining for the common good” very well may bury the unions in Janus v. AFSCME.

In June 2016, right around the time the Friedrichs v CTA case wound up in a 4-4 stalemate, 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 Los Angeles teachers union 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 mentioned that his union is proposing that the school district “expand green space at schools” and provide a “million dollar legal defense fund for students and family members who are facing deportation.”

As a concept, “bargaining for the common good” 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.” 

Which brings us to the Friedrichs case. The plaintiff’s lawyers in that SCOTUS lawsuit 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 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. Accordingly, 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 incorporate blatantly political issues. This would seem to doom the union’s case in Janus v AFSCME , the follow-up to Friedrichs. (While Mark Janus is a healthcare worker, the arguments in his case will probably be very similar to those made in Friedrichs.)

One other union argument for mandatory worker payments appears in the National Education Association amicus brief, which it filed hoping to convince the SCOTUS Justices that Mark Janus and all public employees should be forced to pay for collective bargaining. The argument goes that if workers can get something for free, many won’t pay for it. The unions contend that they are forced to represent the likes of me. But are they?

Well no one should get a free ride. If I am buying what the union is selling, I should pay for it. But what if I want no part of the union contract? The union should not be forced to represent me or anyone else who doesn’t want representation. But exclusive bargaining rights are not forced upon the union; it is something they demand in just about all their contracts.

For example, California’s Rodda Act allows for exclusive representation, and it’s up to each school district and its local union whether or not they want to roll that way. However, it is clearly in the best interest of the union to be the only representative for teachers because it then gets to collect dues from every teacher in the district. It’s also easier for school boards, as they only have to deal with one bargaining entity. So it really is a corrupt bargain; there is no law foisting exclusivity on any teachers union in the state.

As with any private business, if the unions can convince workers that they have a worthy product, the worker should be free buy it. But please – leave the rest of us alone.

The Janus oral arguments will be in 20 days. Let employee freedom ring!

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.