Monday, October 16, 2017

IN POST JANUS WORLD WILL UNIONS HAVE TO SUPPORT NON-MEMBERS?

There is a very interesting piece in Slate Magazine on the future of public sector unions after we more than likely lose the Janus vs AFSCME case.

Does a post Janus union have to represent someone who refuses to join the union? Slate's answer is no and I would concur.

This is a major part of the Slate piece:

The National Labor Relations Board describes non–union members’ “right to fair representation” from unions as follows:
Your union has the duty to represent all employees—whether members of the union or not—fairly, in good faith, and without discrimination. This duty applies to virtually every action that a union may take in dealing with an employer as your representative, including collective bargaining, handling grievances, and operating exclusive hiring halls. For example, a union which represents you cannot refuse to process a grievance because you have criticized union officials or because you are not a member of the union.


As professors Catherine Fisk and Margaux Poueymirou have persuasively argued, though, if the Supreme Court holds that compulsory fair share fees are unconstitutional because they require non–union members to spend money on political causes with which they disagree, then compelling unions to expend their own scarce resources advocating for the benefit of nonmembers would similarly be unconstitutional “on the court’s own analysis.”

But the violation of unions’ First Amendment rights is more severe than merely compelling them to spend money. In addition to depleting unions’ resources, compelling unions to advocate on behalf of nonmembers who frequently oppose their very existence represents a severe violation of unions’ First Amendment rights to determine their membership and the terms of their association.

The Supreme Court has held over and over again that governmental interference with a private group’s membership requirements “may impair the ability of the original members to express only those views that brought them together.” Given this reality, the court has long recognized that “[f]reedom of association therefore plainly presupposes a freedom not to associate.” The Supreme Court expounded on this principle in a landmark 2000 ruling, which held that the Boy Scouts of America had the right to expel a gay member, lest the organization lose its “ability to advocate public or private viewpoints.”

In other contexts, allowing the government to force organizations to advocate on behalf of people who oppose them would lead to results that most would properly regard as absurd. For instance, what would be left of the right to associate if the government could compel Republicans to allow Democrats to vote in their nominating conventions? Or force the Jewish Anti-Defamation League to promote the views of Nazis? Can civil rights advocates be compelled to permit the KKK to march with their members at parades, or vice versa? Simply put: Individuals are either free to define the terms of their association, or they are not.

33 comments:

Anonymous said...

We need to discuss the history of a “closed shop.” I’m no expert, but, it seems the court decided this matter long ago. We are aloud to have closed shops, right? So why are they hearing a case to undo what’s already been decided?

Anonymous said...

Closed shops are outlawed in the USA. The agency shop was the compromise. Not any longer.

Anonymous said...

At the end of the day, none of this really matters to al the young teachers at my school. They could care less. They want the $1,400 in dues money to keep to themselves. They could care less about the UFT and or what the UFT could do for them. As for me, I want union representation, especially in the form of a NUSUT lawyer in the case I might need one.

Anonymous said...

If someone doesn’t want to pay, then they should get NO representation.
"No Taxation Without Representation” but in reverse.
I have no problem with that. I’m tired of hearing about let someone else pay.

And, if I was an administrator, who would I go after first? The person who is a paying union member or the person who isn’t? I know who I would go after first. ***Please note that if I was an administrator, my goal would be to improve teachers (who need it) and support all my teacher, not go after them. I just know the reality we are living in.

Anonymous said...

I agree no representation without taxation but UFT representation sucks. How about some better for of represenation? I would pay for that.

Bennett Fischer said...

If the Slate article is correct, would that mean that non-union employees would negotiate their own contracts, while union members would have a union-negotiated contract? (That would be a logistical nightmare for the DOE.) And if there were two classes of employees - those with, and those without union protections - it seems to me that that would create an enormous incentive for paying union dues. Would employees be free to form alternate bargaining units? Very interesting.

Anonymous said...

Taylor law governs all of that. I don't think that is getting thrown out too.

Anonymous said...

I know a teacher that was brought up on charges and went with his own lawyer instead of a NYSUT. Once Janus happens and the union is split between payers and free riders, I think the first thing that should be done is that in each teachers lounge, a big chart should list who is paying and who is not. As to principals going after free riders who opt out of the UFT: I don't think that will happen. Principals are more interested in getting rid of veteran teachers who cost too much. I think that there will be a tad more veteran teachers who stay in the UFT as oppossed to the newer teachers who will quit the UFT in droves.

Anonymous said...

7:20 If you read this and other blog, a lot of senior teachers say they are going to stop paying.

A lot of newer teachers are pro-union, not all but a good chunk.



Anonymous said...

A lot of new teachers are Teaching Fellows. They went to private schools as kids (or were homeschooled). Because of this, much of their identity is invested in the notion that neighborhood schools are inferior. While some of them may work in neighborhood schools, they still see themselves as saviors who have nothing in common with the “lifers” who make up what they see as a failed system. They wouldn’t be caught dead at a union meeting. They’re just clocking time here until Silicon Valley finally realizes that the website they’ve been working on is better than Kahn Academy.

How do you identify these rockstars? Usually by their Namaste tattoos and their man-buns. They often commute to work on scooters or unicycles. Heaven forbid they get in an accident on one of those things and their union benefits kick in to pick up the tab.

Anonymous said...

Almost every teacher I know is planning on opting out of dues.

ed notes online said...

The dividing line is getting tenure and those wanting to stay long enough to get tenure. The union can't protect non-tenured at all. But every teacher I meet who intends to stay wants tenure badly - and I bet most will pay dues because with tenure and they go after you at least you have some place to go if you have problems.
So I would think the newest non-tenured are most likely to leave. Paying dues is like taking out an insurance policy even if you never need it. The union offers some services other than defense.
I imagine some hostility and resentment against those who don't pay but keep in mind their salaries. I know we paid but think of housing in NYC now. So what we may see is that more low salaried stop paying and all the bombast we see here will dampen down when faced with giving up the insurance policy even if the insurance sucks.

Anonymous said...

My mistake. Still, how is this even a question for the court? Many of these issues were decided. The argument at the time was labor peace. While, they’ve been chipping away on the margins, the main crux is that collective bargaining is better for overall labor market stability. Janus drives a steak in the heart of bargaining.

Why aren’t the lawyers arguing along those lines? I listened to the Freidrichs lawyer. He sounded like he wanted to lose the case. I don’t trust our lawyers. Somebody please write an amicus brief.

James Eterno said...

11:31, I think the city wrote a brief like that in Friedrichs. Said basically the city unions were company unions. It was an eye opener. SCOTUS very ideological these days.

Anonymous said...

"Man buns and ride unicycles". I LOVE IT! Whoever wrote that, if we ever meet. I am gonna buy you a beer.

Highly Effective King Clovis said...

This case still confuses me. I think if you aren't paying, you aren't in the union. Simple as that. Your choice.

ed notes online said...

This may not matter to those who leave but they can be barred from chapter meetings and voting for CL etc.
For long-termers with years to go that is a factor. I can see some at the end of the line willing to drop out.
But there are also some perks for a retiree to belong and most do for a reason -- they feel they are getting something.
I wonder how that plays -- you drop from union and want back in when you retire? I remember that in my early years when they lost dues checkoff we had to pay and I wasn't conscious and then had to pay what I owed.
So a break in being a union member might not get them back in without paying back dues.

Anonymous said...

@9:59
Good point about paying back before receiving benefits as retirees. They partially reimburse prescription benefits. However, aren't they really just the "administrator?" (As they are with vision, prescription, dental now.)

Anonymous said...

Every teacher in my District 24 school supports opting out of dues. We've had 2 ineffective district reps for about 15

Anonymous said...

Excellent point. Insurance is a great analogy.

Anonymous said...

Good riddance, then. I don’t want to be in a union with a bunch of deadbeats who can’t wait to pull their dues for the most minor of perceived slights. Unions are for the brave who organize, work together, and stand together. People who stand around griping about how badly they want to go it alone deserve the environment they will get without a union. Go ahead and enjoy a couple more channels of HBO a month. But, when the DOE tries to fire your because your old ass starts making the healthcare plan too expensive, don’t come crying to the union. I’m sure you’ll beg and plead to pay your dues in arrears then. But, if I were your building rep I’d tell you to pound sand. Don’t like your current District Rep? Then do something about it! Run for Delgate and agitate to change!

Anonymous said...

UFT as "insurance" is really not that good of an analogy these days. I was accused of verbal abuse a few years ago. My chapter leader got in touch with the district rep who did NOTHING to help me. What good is the UFT if they won't even help out a teacher in massive need of assistance? Where is the "insurance?" I really hope that the UFT honchoes are reading these blogs. Janus is right around the corner which means the UFT can't hide out at 52 Broadway for much longer. They better start stepping up their game in a big way and very soon. The fact that just yesterday they stated that they are against making changes to our evaluation system shows that they are still currently clueless.

James Eterno said...

The UFT leadership said that we don't have a God given right to raises when they sold the lousy 2014 contract. Well, the UFT does not have a God given right to be our bargaining agent (union). We have the power to start over or to fix the UFT but complaining anonymously will not do anything.

I really feel for the people here who are trying to crawl into a corner and hide to survive until they quit or retire. That is no way to live. It really is not. We didn't live like that at Jamaica. It cost us the school but we are surviving in different schools. All of us holding our heads up. People still call for help to uphold their rights.

Union members before us sacrificed too much for us to give it all away.


Organize to fix the UFT or start again. We have the power but not by hiding in the corner.

Anonymous said...

Remember if the UFT loses the dues court case, the city pays the union to administer the welfare fund program. Thus our welfare fund is intact no matter if you support dues or not.

Anonymous said...

7:08: True, the City pays for the welfare fund.

It is the UFT (and other unions) that bargain for what the welfare fund gets.

A strong union = A strong welfare fund.

A weak union and the city could bargain a much smaller contribution and start cutting benefits.

Without the UFT you will end up with Mississippi type benefits. Remember Mississippi is worse than Arkansas

Anonymous said...

Andy has told Mike to fight the Constitutional Convention as minimally as possible and he'll be rewarded with an exemption to Janus - especially if pensions are lowered by 10% or more.

Anonymous said...

Union is needed - PERIOD! Let's not be fooled.

Anonymous said...

Where is your info from 7:55?

waitingforsupport said...

Look at the women who,for decades, endured abuse and harrasment by Weinstein. It was an open secret until 1 person spoke up and out. Now there is a hash tag with people telling their stories. Maybe we can do something like that. Maybe we can start an online petition asking teachers to sign if they are over 40+ and an ATR. IDK I am just brainstorming

Anonymous said...

I’m also curious about 7:55. Every rumor is 80% true. But, how would Andy be able to “exempt” us from the Supreme Court? And, what does Andy get from a Con-Con?

Anonymous said...

Do not be fools the UFT is not on our side.

James Eterno said...

We are on our side. The members have the power to change things but it is hard work.

James Eterno said...

We are on our side. The members have the power to change things but it is hard work.