Beyond Janus -What’s Next Against Compulsory Unionism

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The National Right to work Legal Defense Foundation-won Janus v AFSCME case gave teachers the freedom to refrain from union membership if they chose to do so.  This decision gives teacher union officials to prove their effectiveness and usefulness to teachers.  If a union is beneficial to them, teachers will join.  If it is not beneficial to them, no teacher should be forced to join, and that is exactly what the Janus decision does.  The decision has given teacher union officials the perfect opportunity to review their practices and listen to what teachers really want.  The case is also giving teachers hope who became members rather than pay an agency fee and act as a nonmember.

Of course, teacher union officials are deploring the lawsuits as “distractions” and an attempt to “defund” them.

Now the Foundation is tackling the root of all compulsory unionism, the exclusive representation issue.  Madeline Will has the story in Education Week.   National Right to Work Legal Foundation Vice President Patrick Semmens defends teachers and liberty while American Federation of Teachers president Randi Weingarten, like a true labor boss, threatens more labor unrest and dire predictions as the cases move forward.

. . . the National Right to Work Legal Defense Foundation is supporting several additional lawsuits against teachers’ unions, with more expected soon.

“These suits are part of a larger, coordinated effort by the right wing do two things,” said Randi Weingarten, the president of the American Federation of Teachers, in a provided statement. “They want unions to spend the time and money to defend them so they can defund and distract us, and they want these cases to get to the Supreme Court, now that [Brett] Kavanaugh and [Neil] Gorsuch are seated, to further erode workers’ rights.”

So far, the bulk of the cases center around the question of whether teachers who were obligated to pay fees to the unions in the past should have that money repaid to them.

Those teachers are “entitled to their money back,” said Patrick Semmens, a spokesman for the National Right to Work Foundation. The Supreme Court had ruled that the collection of agency fees violated teachers’ First Amendment rights, because they were essentially paying a union whose policies and actions they might not support.

Semmens added that Justice Samuel Alito wrote in his decision in the Janus case that unions have been “on notice for years” about the Supreme Court’s misgivings toward agency fees. In 2012, the Supreme Court described the practice as a First Amendment “anomaly.”

“They knew there was a risk when they continued taking dues after [the 2012 case],” Semmens said.

Under the statute of limitations in most states, teachers could potentially get up to two years of agency fees paid back, Semmens said—putting millions of dollars at stake for the unions. But for their part, the unions have consistently rebuked the validity of these claims.

Some of the lawsuits that Mitchell filed also create a new class of plaintiffs: teachers who say they joined the unions because they felt like they had little choice. Had they not been required to pay agency fees, which often cost nearly as much as a full membership, they would not have become members, they argue. Those teachers are seeking restitution in the amount of the agency fees they paid, whether they retained or resigned their union membership.

Another thread of litigation is a challenge to unions’ opt-out, or drop, windows. In many places, teachers’ union dues are deducted from employees’ paychecks. Some unions only allow teachers to stop the payroll deduction during a certain date range in the year. That means teachers could decide they want to leave the union, but have to keep paying membership dues for months until the drop window rolls around. The drop window varies in duration, but can be as short as a few days.

There are at least two separate lawsuits—in New Jersey and Washington state—challenging these opt-out windows. (Those suits are against public-sector unions, but not specifically teachers’ unions.) Some of Mitchell’s lawsuits also incorporate this complaint. And Semmens said there will likely be more litigation to come.

“You have a right not to be a union member, and the second you’re no longer a formal union member, then any money taken from you violates your constitutional rights,” he said.

In the case against Education Minnesota, the plaintiffs are asking the court to order the union to “immediately honor and enforce” a teacher’s decision to withdraw payment, regardless of the time of year that decision is made. Douglas Seaton, an attorney who is Mitchell’s co-counsel in the Minnesota case, called the seven-day window akin to “Hotel California-style agreements.”

However, the NEA’s budget, which passed this summer, also invested more money into the union’s legal fund to defend against these kinds of legal attacks. Union leaders themselves expect the post-Janus litigation to eventually reach the nation’s highest court.

In the meantime, the University of Nevada’s Marianno said unions will have to double down on attracting and retaining dues-paying members. That will likely be through an increased emphasis on teacher voice, he said, which could include more labor unrest. There were six widescale teacher walkouts and protests in the spring, and already this school year, there was a series of teacher strikes in Washington state. Teachers in the nation’s second-largest district, Los Angeles Unified, could soon strike, too.

Indeed, AFT’s Weingarten warned that the parties filing the cases should “be careful what [they wish] for.”

“Where once labor questions were resolved at the bargaining table, cases like these, if successful, make it far more likely they’ll be fought in statehouses and the streets,” she said. “They will make unions more political, not less.”