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The DivIdes of March

My latest battle against a teacher union leader….

Last month, Rebecca Friedrichs, lead plaintiff in a lawsuit against the California Teachers Association that was recently heard by the U.S. Supreme Court, and I were invited to talk about her case on Inside OC, a public affairs TV show in Orange County. Rebecca was given the first half of the show solo and the second half would see me debating her case against an unspecified union representative. I agreed to participate and was stunned a few days later when the show’s host, Rick Reiff, told me in an email that my sparring partner would be none other than CTA President Eric Heins.

After years of debunking teacher union spin, it’s always a pleasure to go face to face with these folks and expose their distortions. My first opportunity in this realm came in New York City in March, 2010 when Terry Moe, Stanford professor and expert-on-all-things-teachers-union, captained a debate team which included former Secretary of Education Rod Paige and me. Our opponents were Randi Weingarten, president of the American Federation of Teachers, a school superintendent from Southern California and a teacher from Massachusetts. In the town where the modern teacher union movement was hatched, we won the debate handily; in fact we clobbered them. In a review of the debate, University of Arkansas professor and esteemed education reformer Jay Greene referred to it as a smackdown.

Three years later in March, 2013, I shared a stage in Mountain View with Moe again, former California State Senator Gloria Romero, who regularly battled the teachers unions during her time in Sacramento, and Heins’ predecessor at CTA, Dean Vogel. Though not a debate, the event sponsored by the Conservative Forum of Silicon Valley, saw sparks fly at various points as the three of us refused to let Vogel get away with any of the usual union bromides.

Now, three Marches later, I am going face-to-face with yet another union leader. The always articulate Rebecca kicked things off, talking for 15 minutes about the lawsuit – the tragedy of Justice Scalia’s death, her hope that the case will be reargued, the problems she had trying to make her dissident voice heard as a union member, the immorality of teachers unions protecting bad teachers and the fallacy of the free-rider argument.

Then Heins, who had a dislocated shoulder and had flown in from Burlingame to be a participant, got five minutes which he used to note what he claims to be the positive aspects of teachers unions – how teachers like Rebecca benefit from collective bargaining, that teachers unions benefit kids, etc.

At about 20 minutes in, I appear and do my best to refute Heins. I asked him why, if the union is so beneficial to teachers, they must be forced to pay dues. He claimed that it is because the union must represent all teachers. I had to remind him that exclusive representation is something demanded by – not foisted on – the unions.

When Heins again glorified the value of collective bargaining, I was tempted to rebut him, but refrained, and emphasized that the case is not at all about collective bargaining but rather about teachers’ freedom of choice. Heins then brought up the old “labor peace” argument, which to me is akin to Al Capone negotiating with Elliot Ness, with the Mafia Don explaining that, “You want peace? Let us partner with you.” Bad argument, because it makes the unions sound like extortionists, but then again….

The subject of tenure came up, and of course Heins immediately used the softer sounding phrase “due process,” though he did let its accurate name “permanent status” slip in once. He then extolled the virtue of the three man panel that considers and decides the fate of teachers accused of wrong-doing. But I countered that the panel is made up of two teacher-union members and an administrative law judge – all hand-picked by the union. Hardly a fair process.

At the end of the segment, Heins just had to dredge up the Koch brothers, signaling that the discussion has jumped the rails. The program came to an end at that point and there was only time for me to respond with an eye-roll. Fortunately, however, we were able to continue our discussion for another nine minutes, which is available on YouTube. We picked up on Heins’ Koch-bashing and I pointed out that the biggest political spender in California is not the Kochs or some large corporation, but rather CTA, whose political gifts are about double the second largest spender, also a union – the California State Council of Service Employees, a branch of SEIU.

Heins then veered into how democratically union decisions are made and that they respect minority views. I asked him if the union respected a Republican minority view and he assured me it did. I mentioned that his predecessor claimed that CTA membership was about 65 percent Democrat and 35 percent Republican. I asked Heins what proportion of their political giving goes to Republicans. He insisted that all their spending “is based on education policy” and that they support some Republicans. This is mostly a crock, but I did not bring up the following to refute him as we got side-tracked. What I wished I had said, was that about 97 percent of CTA political spending goes to Democrats, with the remaining crumbs going to the GOP. More importantly, I did not bring up where so much CTA spending goes. Despite Heins’ insistence that it based on education policy, it is not. For example, CTA has spent millions on initiatives to get drug discounts for Californians, to regulate electric service providers, to raise the corporate tax rate in the Golden State, etc. (The last one is especially hypocritical as CTA doesn’t pay one red cent in taxes.) The union also spent well over $1 million of teacher union dues fighting for same sex marriage.

I suggested that the union regularly buys politicians at which point Heins smiled and said that my comment was “cynical spin.” Hardly. We then discussed seniority which Heins thought was quite fair, while I, along with many other reformers, think it is an abominable way to make staffing decisions.

At the end of the session, Reiff said, “We needed an hour!” and he was right. There was way too much ground to cover in such a brief time. The following day I sent a message to Heins telling him I would be willing to do an hour with him anytime, anywhere. I have yet to hear back.

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.

Bye-bye Abood?

SCOTUS appears to be ready to dump mandatory public employee union dues payments.

Last Monday, the Supreme Court heard oral arguments in the Friedrichs v California Teachers Association lawsuit. The case centers around whether or not teachers and other public employees should be forced to pay dues to a union as a condition of employment in states that don’t have right-to-work (RTW) laws. Reviewing the comments and questions from the Justices, a favorable outcome is looking very good for the plaintiffs.

The lawyers and court-watchers have been anticipating a 5-4 decision, with Antonin Scalia being the swing vote. The typically conservative justice had in the past come down on the side of forced agency fees or “fair share,” which is a full dues payment minus the money the union spends on politics should a teacher object. The unions claim they are compelled to represent every teacher, and thus, every teacher should have to pay something for their services. That set up has been law since SCOTUS enshrined it in the Abood decision in 1977 in an attempt to ensure “labor peace.”

But Scalia seems to have had a change of heart. Noting the differences between private and public unions, he said, “But the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes…the situation in a way that that may require a change of the rule. It’s one thing to provide it for private employers. It’s another thing to provide it for the government, where every matter bargained for is a matter of public interest.” (P. 76)

Even more damning, Scalia ended up essentially agreeing with the main point of the plaintiffs’ argument. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of all of those questions are necessarily political questions.” (P.45)

Anthony Kennedy, traditionally the Court’s swing voter, showed little sympathy for the union position. He dismissed the classic union rallying point that refers to those RTW state employees who “benefit” from union activities but don’t pay money to them as “free riders.” Kennedy rejected that argument, referring to them instead as “compelled riders.”

And you ­­ the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.

Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it — correct me if I’m wrong — agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points. (P.43)

Kennedy also brought up the frequently fuzzy line between political spending and so called chargeable (non-political) fees, asking the lawyer for the state of California. “Do union — do unions have public relations programs of or newspaper articles, media programs to talk about things like merit pay, protecting underperforming teachers and so forth? Do the unions actually make those arguments, and aren’t those chargeable expenses? (P.44)

The union lawyers kept stressing that forced dues were essential to their survival, but Scalia disagreed, pointing out, “Why do you think that the union would not survive without these – these – fees charged to nonmembers of the union? Federal employee unions do – do not charge agency fees to nonmembers and they seem to survive; indeed they prosper….” (P.50)

The union lawyers and four Justices sympathetic to their cause didn’t have much of a defense. They kept making the same tired old points and added the stare decisis argument, the doctrine of precedent, which came up several times. Lawyers cite it when an issue has been previously brought to the court and a ruling already made. Generally, courts will adhere to the previous judgment, though this is not always the case.

There have been several landmark cases where prior rulings have been completely disregarded, most notably in Plessy v Ferguson (1896). The Court ruled the “constitutionality of state laws requiring racial segregation in public facilities under the doctrine of ‘separate but equal.’” But in 1954, stare decisis was set aside when the court overturned Plessy. In Brown v the Board of Education of Topeka, the Court reversed itself, saying that “separate educational facilities are inherently unequal.” Referring to Friedrichs, George Leef writes in Forbes, “Where First Amendment rights are at issue…stare decisis and the convenience of teachers’ unions seem very small considerations.”

The media weigh in

Reading countless reports and articles on the trial, I could not find one that thought it went the union’s way. Typical is a piece from Politico titled. “SCOTUS support for anti-union plaintiffs,” which begins, “The Supreme Court appeared ready Monday to bar public-sector unions from collecting ‘fair-share’ fees from non-members, a move that could deal a political blow to Democrats by reducing union membership drastically and draining union coffers.”

The only glimmer of hope came from American Federation of Teachers president Randi Weingarten who wrote, “As I listened (and admittedly, I’m not impartial!), I felt they failed to present a compelling argument for why the court should overturn 40 years of precedent — precedent that has led to labor peace in the public sector, better services for communities, easier administration for state and local governments, and, of course, fair pay and benefits for working families.”

But as she said, she is not impartial. In fact, anything but.

The usual pro-union suspects weighed in and essentially agreed that the plaintiffs would probably emerge victorious, but their reporting was leaden with a heavy dose of anger and angst. Perhaps the most hysterical was an article on Huffington Post titled, “This is Bad! Attack on Teacher Unions is an Assault on Students, Workers and Democracy.” His slant was obvious; in a brief article, he used the word “rightwing” seven times and just to change things up, he threw in “right-wing” a couple of times.

What happens next?

The justices may very well have already voted or will do so very soon, but it’ll likely be June before their decision is announced. Between now and then a lot can happen. The Justices’ minds can be changed by other justices and can be affected by public opinion and (indirect) union pressure. Hence the PR war will go on.

If the unions lose, how bad will it be for them?

Probably not nearly as bad as they are making it out to be. First, they can get rid of the free rider problem by becoming a members-only organization. (Some state laws may have to be tweaked, but that shouldn’t be an onerous task.) Then, if a teacher likes their union they can pay for services rendered. If they want no part of the union, they won’t join. There are other organizations like the Association of American Educators and Christian Educators Association International that provide many of the benefits and protections offered by the union.

Also, by becoming a members-only entity, the unions will enlist only true believers. But they will, however, have to be more responsive to the needs and wishes of their members since teachers as well as other public employees will no longer be forced to pay them.

Nina Rees, president of the National Alliance for Public Charter Schools, writes that children could be winners should the plaintiffs prevail, “…teachers may gain greater leverage in determining the policies that union leaders pursue. If that leads to policies that reward great teaching and put more of the best teachers in the classrooms that need them most, students will win.”

And there are union stalwarts who aren’t crying in their beer. Trade union activist Shamus Cooke asserts that unions need to step up their organizing game if they are to remain powerful. Samantha Winslow makes pretty much the same point in “Organizing Is the Key to Surviving Friedrichs.”

If Friedrichs is successful, who will be the big loser?

Democrats and the left.

There is no doubt that union warchests will take a hit if all teachers aren’t forced to fill them. While no one knows how many teachers will refuse membership, I think a conservative guess would be that one-third will choose to avoid ties to the union. If so, the California Teachers Association’s $180 million a year gravy train would be sliced down to $120 million. As you can see here (H/T Colin Sharkey), CTA gives 96.7 percent of that gravy to Democrats. And what doesn’t go specifically to Democrats goes to leftist causes. On a national level, National Education Association and American Federation of Teachers’ spending just about all goes in a leftward direction.

Final word

The Abood decision, which claimed it would ensure “labor peace,” did so at the cost of freedom of association for millions of teachers across America over a 39-year period. “Labor peace” has also come at great expense to parents, children and taxpayers who have suffered as the unions coffers were used in part to kill education reform, keep kids in failing schools and raise taxes. Hopefully, the judges will soon rid our lives of Abood and if they do, trading bad policy for “labor peace” will become a sad relic of another time.

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.

Myths the Union Organizer Tells Us

Socialist teacher union honcho’s distortions about union political spending and “labor peace” are, well, par for the course.

Shaun Richman, a former organizing director for the American Federation of Teachers, has written a bizarre piece for In These Times in which he claims that “the Friedrichs v. Calif. Teachers Association SCOTUS Case Could Actually Be a Boon for Unions.” His overarching point is more than a bit arcane, but it’s safe to say he thinks that the case – which, if successful, would make public employee union participation optional nationwide – could cause major chaos that the unions would somehow be able to use to their advantage.

Richman, an acknowledged socialist who prefers to be called “Comrade” (or more informally “Cde.”), may not know where Friedrichs will lead, but he offers a treasure trove of distortions in plotting out his incoherent scenario.

First, we start with a half-truth. Comrade Richman grouses, “Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.” Left out is that “exclusive representation” was not something foisted on the unions; it is something that all unions have demanded for the last 80 years. So you really can’t whine about being forced to do something that you have lobbied hard to attain.

Cde. Richman then warns, “…exclusive representation is essential to labor peace.” I cringe every time I read or hear the words “labor peace.” This wretched little term was used in the U.S. Supreme Court’s Abood decision that the Friedrichs lawyers hope to overturn. To me, the words summon up an image of a mafia thug telling the new storeowner in the neighborhood, “You want peace? Here are some envelopes to use for your monthly payments. You have such a nice little store. I’d hate to see anything happen to it.” Labor peace my foot.

Another bit of propaganda from Cde. Richman regarding Friedrich’s “right-wing argument,”

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds.

That’s the standard narrative, but it’s far from the whole story. As Mike Antonucci points out, if a union sends a mailer advising members to vote for Candidate X, it can be chalked up as “member communication,” not political spending. The unions are also quite gifted in the phenomena of so called “dark money” – political spending by groups whose own donors are allowed to remain hidden. So again, the unionista is playing very loose with the facts.

Then comes a truly jaw-dropping whopper from Cde. Richman: “Unions are politically cautious and loath to wade into non-economic controversies for fear of alienating a segment of their bargaining unit.” What?! Is it minutely possible that Cde. Richman does not know about teacher union spending habits? Is he not aware that teacher union elites are invariably far left of center and spend heavily to advance their agenda? As RiShawn Biddle notes, the Democracy Alliance, Progress Now, Progressive Inc., Media Matters, et al are heavily funded by the National Education Association. The unions have also been involved with same-sex marriage advocacy, blocking photo ID requirements for voters, and limiting restraints on the government’s power of eminent domain.

In fact, its latest filed labor report shows that NEA spent $131 million on politics in 2014-2015 – and believe me, the Tea Party, Americans for Prosperity and Focus on the Family didn’t see a penny of the union’s largess.

Richman is on the money about one thing, though. He writes, “…if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.” Bingo! If I don’t want to have to be in a union, the union should have no obligation to represent me. In fact, it would be immoral for me to insist on a service that I was not willing to pay for. But Comrade Richman, once again, exclusive representation is a union-demanded convention. If unions should decide they don’t want to represent non-payers, that would be the fairest solution for all concerned.

That’s the kind of “labor peace” I could really get behind.

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.