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A Supreme Decision

Public employee unions beat back wealthy special interests and their attack on workers

It was a case that could have hobbled unions and, in the process, ended the decades-old ability of teachers, education support professionals, and other public sector employees to speak in one, unified voice—at the bargaining table and in the workplace

Even before Friedrichs v. California Teachers Association (CTA) was argued in January before the U.S. Supreme Court, public service workers had weathered attacks from wealthy special interest groups. The goal of the assaults has been to undermine worker protections, such as collective bargaining, and the right of public sector unions to collect “fair share” or “agency” fees from employees. (These fees are reduced amounts charged to workers who opt out of union membership, yet continue to receive the union representation and bargaining services that benefit all employees and which unions are required to provide.)

At the January hearing, the Court’s then-conservative majority seemed poised to rule in favor of public school teacher Rebecca Friedrichs—and the nine other plaintiffs who brought the case—and against public service workers nationwide, including educators who consistently put students’ needs first at the bargaining table. But the February death of conservative Justice Antonin Scalia changed the court’s balance of power, from a 5-4 division, with a conservative majority, to a court split evenly down the middle.

That split played itself out in March through a 4-4 order that left unchanged the court’s longstanding

recognition that public employers also have a strong interest in collective bargaining, and left intact the precedent established by Abood v. Detroit Board of Education—the 1977 case in which the court unanimously upheld fair share fees that support collective bargaining.

“In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators, and other public employees,” says NEA President Lily Eskelsen García. “This order recognizes that stripping public employees of their voices in the workplace is not what our country needs.”

The order’s impact allows educators to continue to advocate for their students through bargaining, adds CTA President Eric Hein.

“California’s educators will continue to work together to provide quality, safe, and healthy schools as we continue to ensure our students get the quality public education they need and deserve,” Hein says.

What Friedrichs Claimed

The plaintiffs in Friedrichs said fair share fees violated their First Amendment rights because collective bargaining is a political activity, and paying this fee is identical to supporting lobbying efforts or campaign spending. They also claimed that the fee effectively forced union membership. But by law, no one is required to join a union and no one is required to pay any fees that go to politics or political candidates. Nothing in the Friedrichs case would have changed that.

Rather, the court was asked to answer two questions in Friedrichs: One, do fair share fees violate the First Amendment? And, two, does opt out—which asks educators simply to check a box on a form and send it to the union to opt-out of paying for lobbying or political activity—violate the First Amendment?

With Abood, the Court ruled that public employers could require employees—even non-members—to pay for the costs of their collective bargaining representation by the union. The court’s decision also left in place, and unchanged, the law on opt-out. In other words, non-members would continue to pay their fair share fees. The split decision also means each state has the right to decide whether to permit such fees.

California Attorney General Kamala D. Harris agreed with CTA, and said this following the January oral arguments: “While no employee should be forced to pay for a union’s political speech outside the workplace, if a union represents all employees in negotiating and administering a collective bargaining agreement, then all employees ought to share the costs of that representation.”

The Friedrichs Effect

Before the March decision, educators were concerned. “I worried that I would not be able to advocate for my students,” says CTA member Maya Walker, a library media technician at Hayward High School in Hayward, Calif. “As a union member, I know I have a voice and that through our collective bargaining process, we are ensuring quality public schools for all students.”

Employers also hold a compelling interest in strong and effective bargaining laws. Montgomery County, Md., was one of 14 school districts that joined an amicus curiae, or “friend of the court,” brief supporting the longstanding common sense solution that supports effective collective bargaining by requiring all who benefit from it to pay their fair share of the costs of that bargaining. The school district’s brief says educator unions have helped promote innovative solutions.

The county’s Broad Acres Elementary School is proof that union-led solutions can work. Sixteen years ago, it was the county’s highest-poverty school and on the verge of being taken over by the state. That’s when administrators and the Montgomery County Education Association formed a collaborative partnership. Within three years, Broad Acres made significant academic strides that continued to rise.

In Seattle, when education officials recently shrank recess time at elementary schools, members of the Seattle Education Association banded together to speak up for students. The result: Seattle elementary school students experienced a jump in their lunch and recess time from 15 minutes to a guaranteed 30 minutes a day.

The Association included the demand in a new contract, ratified last September, which also calls for educator pay increases and an examination of race and equity issues, including disparities in the suspension rates between White students and students of color. The district further agreed to a one-year moratorium on out-of-school suspensions of elementary students who commit certain nonviolent offenses, and the creation of a plan to eliminate all elementary school suspensions.

Negotiations can sometimes reach into non-traditional areas and take unexpected turns. In 2012, a member of the Dayton Education Association in Ohio collaborated with the principal of Belmont High School to acquire textbooks for special education students.

The collectively bargained contract stipulated that students should receive classroom supplies as needed. Together, the school’s educators and the principal devised a strategy to leverage the union’s contract into a grievance that Belmont’s educators filed against the willing principal.

As a result, the students at Belmont—and every other special education student in Dayton Public Schools—received the textbooks they needed.

From California to Maryland to Ohio, these situations prove that when basic student needs are on the chopping block, strong unions can ensure students’ interests take center stage. They are proof that shared leadership—based on the needs of students and schools—works.

Fastest-Moving Decade For Right To Work

Friedrichs was dreamed up by the Center for Individual Rights (CIR), an organization formed to push a corporate conservative agenda. CIR’s list of funders reads like a Who’s Who in the world of right-wing networks and conservatism. They include Charles and David Koch, Lynde and Harry Bradley Foundation, John M. Olin Foundation, Sarah Scaife Foundation, and the Carthage Foundation.

To push the attack forward, CIR and their attorneys rushed their case to the Supreme Court in almost unprecedented fashion, asking lower courts to rule against them so they could appeal it immediately. Although the case could have impacted the balance of power in our democracy and the distribution of wealth in our economy, there was no fact-finding, no record, and no trial before the case reached the highest court in the land. There was only the frantic rush by CIR and their allies to get their case to the court within a prescribed window of opportunity.

While CIR’s overall strategy fell short in the Friedrichs case, the broad-scale attack on workers’ rights continues across the country.  Although 23 states permit fair share fees for at least some public sector workers, just this spring West Virginia became the 26th state to pass a law that doesn’t protect workers, and the fourth state to pass such a law in as many years, following Indiana, Michigan, and Wisconsin. This is the fastest-moving decade for right to work since the 1950s.

In other states like Kentucky, passage of right-to-work legislation is possible if right-wing conservatives take control of the state House after November elections. Republicans already hold a majority in Kentucky’s state Senate and have passed right-to-work bills.

In Missouri, anti-worker, anti-union forces have a second chance to pass right-to-work legislation this session. The state was close to enacting the policy during the last legislative session despite fierce opposition. There remain many other fair share fee cases in the federal court system pipeline involving the Abood case, opt-out, and other issues. These cases, however, will not make it to the Supreme Court until next term at the earliest.

As national disputes like the Friedrichs case arise, NEA will continue to collaborate with other public employee unions to ensure people understand the real agenda of wealthy special interest groups like those who supported the Friedrichs plaintiffs.

A Right-to-Work (For Less) Nation

Friedrichs could have stripped bargaining power from workers across the country. In the 26 right-to-work states prohibiting unions from collecting compulsory fees from non-members for whom they bargain collectively, the result has been lower wages and decreased benefits for working people. In states without full union rights, the average worker makes $1,500 less per year, workers are much less likely to have health insurance, and the rate of workplace deaths is 36 percent higher.

The anti-union sentiment of the case was reminiscent of other recent attacks against working people. One of the first such attacks was launched in 2011 by Wisconsin Gov. Scott Walker when he pushed through Act 10, a law that slashed the collective bargaining rights and benefits of union members.

Labor-management agreements fell by the wayside and the average union member immediately saw their earnings drop between 8 and 10 percent. Educators could only negotiate salary increases within a limited band tied to the cost of living, and could only retain even those exceedingly limited rights by successfully being selected annually by 51 percent of the entire bargaining unit. Improved learning and working conditions and all other issues, even those important to students, were removed from the bargaining table completely.

As a result, educators could no longer negotiate over issues like class size or the number of teachers in a room for students with specific needs. Districts started to arbitrarily give educators additional duties, requiring them to supervise extra work or stay after school.

Veteran educators—mainly those at the top of the salary schedule—were fired or forced to retire. Some were rehired at a lower salary. Others were handpicked to return by administrators. To further weaken unions, the state also ended fair share fees and automatic dues deduction from workers’ paychecks. Without revenue generated from automatic dues deduction, unions must make individual arrangements with members, which makes it easier for some members not to pay.

“These groups want to weaken unions because they want to eliminate their last standing challenge,” says Rebecca Letter, a teacher for a Sheboygan, Wis., area high school. “There’s a lot of money out there, and it typically falls to big businesses. But unions are one of the last fronts that compete with big money to make sure workers are treated fairly and that students and schools are funded adequately.”

After his Act 10 passed, Walker made the largest budget cuts in the state’s history and attempted to close a $3.6 billion budget deficit by reducing school spending by 5.5 percent, and by cutting $792 million in school aid.

Standing Together

At their core, all of these efforts jeopardize educators’ ability to have a voice. Ron Hustvedt, a middle school teacher in Minnesota, knows firsthand why unions must be strong. Several years ago, Hustvedt chaired a staff development committee that was encouraged by his school district to design a framework for peer coaching and Professional Learning Communities. The goal was to develop a schedule that would not interfere with a teacher’s prep time.

The group designed a format and all agreed, except the school principal, who attempted to quash the plan. Hustvedt explains that the principal viewed peer coaching as an attempt by teachers to “make more money.”

“I remember him coming into my classroom and saying, ‘You have to go along with me,’” Hustvedt recalls. To “go along” meant to stop the plan. Instead, Hustvedt contacted his local union. Days later, the pressure was off. “If I didn’t know the union was going to have my back, I would have had to ‘go along’ with the principal,” he says. “It’s nice to have an organization that’s looking out for your best interest so you can serve your students well.”

Union Power!

Backed by the strength of their union, educators have the power they need to stand up for what’s best for students and the profession. In Reading, Pa., members of the Exeter Township Education Support Professionals Association defeated a privatization plan that would have eliminated 54 bus driver jobs. Members took their concerns to the community. Soon, district residents were discussing privatization at Little League games, family picnics, business meetings, in beauty parlors, and at health clubs. The board ultimately decided against privatizing the bus fleet. This was important to residents, because the district’s bus drivers, who live in the community they serve, are connected to students. As one local parent said, “Private companies don’t know our kids.”

Building union power is about connecting with other educators around shared concerns. It’s about feeling empowered to talk about improving the school environment for educators and students without retaliation. Most of all, union power is about being able to do these things while being protected by the union.

Deborah Hollis, a sixth-grade English language arts teacher at Molasky Jr. High School in Clark County, Nev., has experienced the value of her union firsthand, and she has witnessed the ways NEA members are encouraged to become vocal leaders, speaking out on behalf of their students and profession.

Earlier this year, she attended an NEA leadership summit in Washington. “I kept questioning: ‘Why am I here?’” she says. But after two days of engaging with fellow educators, Hollis says that the gathering “made me open my mind and views. There are so many teacher leaders at my school. We just don’t know it.”

To those who are hesitant, Hollis says being a teacher leader doesn’t mean you have to leave the classroom and become an administrator. Leading the profession could be a walk across the hall to connect with other educators and share information.

Closing Argument

The court’s ruling on Friedrichs marks a significant defeat for wealthy special interests who want to hijack our economy, manipulate our education system, and oppress middle class workers.  But the assaults against fair share, along with the legislative attacks against working families will continue.

These reasons—plus the fact that the next president could nominate Supreme Court justices who could decide cases for generations to come—mean the upcoming presidential election is one of the most important educators have seen.

Friedrichs is a victory for working people, but it also presents an important lesson: As the leading voices of the education profession, NEA and its state and local affiliates must be even more vigilant when it comes to gaining more members through organizing and speaking out on behalf of students and public education. 

 

“I worried that with the wrong decision in Friedrichs, I would not be able to advocate for my students. As a union member, I know I have a voice and that through our collective bargaining process, we are ensuring quality public schools for all students.”

—Maya Walker (Above), CTA member and library media technician, Hayward High School, Hayward, Calif.

 

“I keep on doing what’s best for kids because that’s what we do and that’s why this case is so important. If teachers lose then so do students.”

—Ron Hustvedt, Teacher, Salk Middle School, Minneapolis, Minn.

 

“They removed educators at the top of the pay scale to fix the state’s budget, but those at the top were also the good teachers with a lot of experience—
and it’s never the right choice to save money on the backs of students.”

–Rebecca Letter, Teacher, North High School, Sheboygan, Wisc.

 


Right To Work (For Less)

It was 1768—years before the U.S. was a nation—and 22 journeymen tailors from New York went on strike to protest salary cuts. It was the earliest recorded employee strike, and the tailors helped to set the stage for a national labor movement in the new nation. In time, U.S. workers would organize in masses, forming unions and gaining strength to stop abusive practices, including child labor, low wages, and unsafe working conditions.

Tensions soon escalated between workers and their employers, who wanted to keep wages and benefits low and profits high. By the mid 1930s, union opposition turned political. For example, the Christian American Association (CAA), a Texas-based, conservative lobbying group, saw unions as a political threat because some unions opened their doors to all races and were against Jim Crow laws and segregation. The CAA set out to weaken these opponents by encouraging lawmakers to make it a crime to picket and have signed agreements that required membership as a condition of employment. This marked the beginning of working without protection, commonly called right to work, which prohibits collective bargaining agreements between employers and unions.

Fueled by the fears of racist property and business owners, Arkansas became the nation’s first right-to-work state. Workers there had long benefited from the high wages and worker protection laws created by a strong labor movement. But in 1944, the CAA circulated petitions to establish a right-to-work initiative, and voters approved the measure 105,300 to 87,652. A national blitz on workers’ rights followed and continues today.

Arkansas, 1944 Florida, 1944 Arizona, 1946
Nebraska, 1946 Virginia, 1947 Tennessee, 1947
North Carolina, 1947 Georgia, 1947 Iowa, 1947
South Dakota, 1947 Texas, 1947 North Dakota, 1948
Nevada, 1952 Alabama, 1954 Mississippi 1954/1960*
South Carolina, 1954 Utah, 1955 Kansas, 1958
Wyoming, 1963 Louisiana, 1976 Idaho, 1985
Oklahoma, 2001 Indiana, 2012 Michigan, 2013
Wisconsin, 2015 West Virginia, 2016  

Published in:

Published In

1-May-16

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