OpinionUnion Report

Analysis: Teachers Unions Will Argue in Court That ‘Agency Fees’ Don’t Fund Political Activities. But They’re Saying Something Different to Members

By Mike Antonucci | October 31, 2017

Photo: Eric Thayer/Getty Images

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Last week Union Report reported on a directive sent by the National Education Association listing “8 essentials” that should shape local collective bargaining agreements if the U.S. Supreme Court overturns agency fee laws in the coming Janus case. Such laws allow unions to collect payments from non-members, ostensibly to cover the costs of contract negotiation.

Oral arguments in the case may occur as early as January. Plaintiffs will argue that agency fees levied by public-sector unions are unconstitutional because bargaining with the government is a form of political advocacy with which they may not agree.

The unions will argue that engagements with the government as an employer are fundamentally different from those with the government as sovereign, and that workplace “coherence” makes it necessary for non-members to subsidize the majority position. They will claim that fee-payers are not supporting unions’ political speech in any meaningful way.

Which makes the information being disseminated by the American Federation of Teachers to local activists all the more curious. Last week AFT sent Rob Weil, its director of field programs for educational issues, to speak to the Baltimore Teachers Union. In a presentation titled “Janus, Unions, and the Rest,” Weil explained the basics of the Janus case, listed some remedies in the event of an adverse decision, and warned of the implications to AFT and its partners and affiliates.

Among the remedies was one that unions believe will be the next point of contention in a post-Janus world: maintenance of dues agreements. Inserting these agreements in new contracts is one of NEA’s “8 essentials,” and they are also promoted more generally among public-sector unions. The idea is to create “a narrow and individual time frame when a member is permitted to quit the union, usually a year after signing.” Although courts frequently overturn efforts to limit when members can resign, AFT suggests maintenance of dues language can still extend the time they would have to pay.

Even with this planned circumvention, Weil warned that public-sector unions will see an immediate loss of income. In a series of PowerPoint bullets, he predicted an additional ideological effect on union affiliates and partners:

  • “Some unions will be unable to stay afloat. This ruling will make it hard for them to exist.
  • “The weakening of unions weakens the ability of unions and their social partners to fight for working people.
  • “Unions will be forced to spend larger amounts of time and money on membership maintenance instead of other more progressive union activities.
  • “The progressive moment [sic] as a whole, and many specific groups, will lose resources (both $$ and people) which will lessen their impact. Some social partners may, unfortunately, no longer exist.
  • “The progressive agenda may have to be reduced in reaction to the new rules regarding dues collection.”

It is hard to square the unions’ argument that agency fees are not subsidizing political speech with the claim that their loss will lead to a reduction in the progressive agenda. Even staunch unionists might feel that AFT would benefit from spending more time and money on membership maintenance.

Although their overall numbers will be reduced, it is conceivable that unions will become more progressive organizations. Those who pay dues out of personal choice, rather than mandated obligation, are more likely to support their unions’ political goals as well. There will be less union, but it could be union concentrate.

Given that progressive elements within the unions are already dissatisfied with the status quo, significant changes to the ideological composition of membership because of Janus may lead to more internal problems for NEA and AFT than external problems for their education policy aims.

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