Another Attack on Teacher Unions and “Fair Share”

In a column last week Los Angeles Times op-ed writer Michael Hiltzik (whose work is almost always a must-read) exposed the fraud behind the latest assault on the political activity of teacher unions.  It involves a lawsuit, Bain v. California Teachers Association et. al, which purports to defend the “free speech” rights of its plaintiffs, four California schoolteachers.  StudentsFirst, an education “reform” group supported by wealthy hedge fund managers and the Walton family, is bankrolling the lawsuit.  The group “was founded by onetime Washington, D.C., schools chancellor Michelle Rhee, who, before leaving the organization in 2014 under a cloud, established its philosophy that the problem with education is that teachers have too much power and job protection.”

Here is how Hiltzik describes the suit:

The lawsuit’s prime target is the “agency” or “fair share” fee. Under the law and according to a 1977 Supreme Court decision known as the Abood case, workers can be assessed non-member fees to cover solely the cost of negotiations and contract enforcement, without being compelled to join the union and support its political activities with their dues. That’s the arrangement in California. For decades, union opponents have been trying to get Abood overruled. The Supreme Court is pondering whether to hear one challenge from California, Friedrichs vs. California Teachers Assn. Bain “helps create a favorable political climate for the Supreme Court” to accept the Friedrichs case and overturn Abood, says Joshua Pechthalt, president of the California Federation of Teachers, a defendant in Bain. Its purpose is “pretty clear,” he says: “The erosion of unions’ ability to be involved with politics.”

The lawsuit’s promoters don’t describe their goals this way, of course. The four Bain plaintiffs — two Los Angeles teachers (including April Bain, the first-named plaintiff) and one each from Richmond and Arcadia — seek the right to refuse to contribute to their unions’ political activities, but to do so without giving up their union membership. That sounds like a modest request, but it strikes at the very heart of collective action.

If every union member could pick and choose which positions he or she would pay for, union solidarity would evaporate.

By plying members with benefits that non-members can’t enjoy, asserts StudentsFirst’s attorney, Joshua Lipshutz, the unions are coercing the plaintiffs into giving up their 1st Amendment rights.

The new wrinkle in this suit is that the plaintiffs, all union members, want to opt out of paying for those positions they don’t like — in short, become agency fee payers — but retain all the rights of full paying members:

The lawsuit says that the plaintiffs are effectively coerced into supporting political positions taken by their unions because withdrawing from the unions and paying an agency fee means giving up benefits that belong only to members.

These include disability and liability coverage for members and access to cut-rate credit cards and entertainment discounts. The lawsuit calls these “employment-related” benefits, but that’s a flagrant distortion aimed at making them appear to be the right of every school employee, union member or not. But these benefits are financed entirely from union dues, not by employer contributions. Just because one has to be a member to enjoy them doesn’t mean non-members are the victims of discrimination.

“Almost every membership organization has dissenters,” writes Hiltzik,

The key question is whether those dissenters have a chance to shape its policy their way. That’s certainly the case with the unions sued by StudentsFirst: Their political positions are the product of open debate among members, expressed through the election of officers and delegates who gather at conventions to decide which policies to support or oppose and how much to spend to advance their goals. Indeed, one of the Bain plaintiffs, Kiechelle Russell, is a member of the House of Representatives of United Teachers Los Angeles, which sets UTLA policy.

Lipshutz says the plaintiffs aren’t objecting to unions’ engagement in political activity as such — they “don’t take the position that unions shouldn’t spend money on political issues,” he says. What they’re objecting to is that their union dues support positions taken through votes that didn’t go their way. Effectively, the plaintiffs are claiming a free-speech right to always be in the majority.

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