Agency Shop: Individual Freedom Versus Collective Interest
A dozen years ago, John H. Miller, a teacher from Uniontown, Ohio, gave up his membership in the National Education Association local that represents teachers in his school district, having concluded that the association's activities were at odds with his beliefs as a conservative Mennonite.
It wasn't until last year that his decision became a matter of contention. The nea local, citing a liberal new state law on collective bargaining for public employees, demanded that Mr. Miller pay a fee in lieu of dues. The dispute is now before state labor authorities.
Explaining that the payment of such fees "would do violence to my conscience," Mr. Miller, who at 46 years old is six years away from retirement, says he would have "no choice but to quit teaching" if state officials order him to pay.
Sharon York and Richard Lee, nonunion teachers in Bloomington, Ind., also object to paying fees to the nea, but for different reasons.
"I'm not a factory worker dealing with inanimate objects. I deal with kids," says Ms. York, a 38-year-old mother of two who has been teaching in elementary schools since 1971. "Unions frighten me. I know they do some good things but they frighten me."
For Mr. Lee, a self-described "free-market libertarian" who has taught Spanish in Bloomington high schools for 16 years, it is a matter of "supporting a group that I absolutely oppose on many issues."
"In a sense I am being forced to arm the enemy," says Mr. Lee. "I sincerely believe that the positions that the nea takes on many issues are destructive. After the 1982 congressional elections, they said they were saddened by the New Right's political clout. I don't want to pay for the publication of that garbage."
The three Midwestern teachers--all of whom quit their local teachers' associations in the early 1970's--are representative of in the early 1970's--are representative of an apparently small faction of the nation's teaching force who do not belong to one of the two national teachers' unions and who are so upset at the prospect of being required to support the organizations financially that they have gone to court to block such action.
Their disputes center on "agency-shop" agreements--contract provisions negotiated by their local unions and their school boards that require them to pay a fee in lieu of union dues for benefits that the union wins for all teachers.
Mr. Miller and other dissident teachers allege that the national unions are using an unwarranted proportion of their agency fees for a wide array of activities that they find philosophically repugnant--lobbying for abortion rights, support for Nicaragua's Sandinista government, and labor "militancy" in general, to name a few. Such "coerced" support, they claim, violates their First Amendment rights to freedom of speech and freedom of association.
But according to officials of teachers' unions, contracts requiring the payment of such fees promote labor peace and keep nonunion teachers from getting a "free ride" on the backs of dues-paying members.
Furthermore, they claim, state and federal courts have overwhelmingly upheld the constitutionality of the agency-fee concept as well as the procedural safeguards that the unions have built into such arrangements to protect the free-speech rights of nonmembers.
Legal skirmishes over agency fees, the officials allege, are only sideshows in a larger battle being waged by business leaders and their conservative supporters to strike a fatal blow to an American labor movement that has been losing ground in recent years.
Supreme Court Review
The agency-fee issue has been reviewed by the U.S. Supreme Court on several occasions, with the cases generally going in favor of the unions. But last year, in its most recent decision on the topic, the Court dealt a blow to the unions, announcing limits on the kinds of activities that nonunion employees can be required to finance. (See related story on page 15.)
Teachers' unions predicted that the decision would have a minimal impact. But there are some indications of an increase in the number of agency-fee lawsuits being brought in state and lower federal courts since the Supreme Court's decision last year.
For example, the Court has been asked six times to take another look at the agency-fee issue in its current session, most recently in late March in a case involving the Chicago Teachers Union, an affiliate of the American Federation of Teachers. Although the Justices have thus far turned down all of the requests, parties on both sides of the issue agree that it may revisit the question in the near future.
Unlike workers in the private sector, teachers and other public-sector employees do not have collective-bargaining rights guaranteed by federal law. Teachers' unions, instead, are regulated under widely varying state statutes, the great ma-jority of which were enacted during the last 20 years, a period marked by the rapid expansion of public-sector unionism.
According to the nea, 12 states now permit teachers' unions to negotiate contracts with agency-fee clauses. Four other states--Rhode Island, Hawaii, Connecticut, and New York--have stricter laws requiring all teachers to pay either union dues or agency fees to their local bargaining unit.
The exact number of school districts requiring nonunion teachers to pay agency fees is unclear. Officials in the nea's research division say that the figure is about 10 percent of the approximately 16,000 districts in the nation. In an article in the fall 1980 edition of the Journal of Labor Research, Morgan O. Reynolds, a labor economist at Texas A&M University, estimated that about 20 percent of all public employees work under contracts with union-security clauses requiring dues or agency-fee payments. Mr. Reynolds added that this figure is probably an underestimate, given the recent surge in growth of public-sector unionism.
Many of the teachers who are opposed to paying agency fees receive legal assistance from the National Right to Work Committee, a group based in Springfield, Va., that is dedicated to the elimination of what it labels "union coercive power." The group was founded 30 years ago by the presidents of several Southern businesses, two former railroad workers, and the former U.S. representative who co-sponsored the 1947 federal law that permits states to pass so-called "right-to-work" laws banning "union-shop" and "agency-shop" labor contracts.
Susan Staub, director of Concerned Educators Against Forced Unionism, the committee's education division, says the group's legal-defense foundation is involved in 166 agency-fee lawsuits brought either by individual teachers or groups of teachers. Of those, she says, 150 involve nea locals, 10 involve locals of the aft, and the remainder involve locals of the American Association of University Professors or other independent teachers' associations.
According to union officials and labor-law experts, the fact that most of the suits are directed against nea locals is largely a result of the union's size. They also noted that a number of teachers apparently became disaffected with the nea because of what they viewed as its transformation from a largely apolitical professional association to a leading voice in the labor movement during the past two decades.
Measures of Support
While it may be impossible to determine precisely how many nonunion teachers oppose the payment of agency fees, recent studies indicate that the nation's teachers in substantial part support the nea and the aft
Data from the National Center for Education Statistics and the two national unions indicate that more than 90 percent of the nation's 2.1 million public-school teachers belong to a union, making the teaching profession one of the most thoroughly organized in the country.
In addition, a significant percentage of the nation's teachers say that the unionization of the teaching6force has improved the quality of public education in America.
A nationally representative poll of 813 teachers conducted by the Gallup Organization last April and May and published in the January 1985 edition of Phi Delta Kappan found that 49 percent agreed that unions have helped education. Furthermore, 63 percent of the teachers who responded to the poll agreed that teachers should have a right to strike.
The Gallup poll, however, also indicated that a substantial minority of teachers oppose these positions. Eighteen percent of the teachers who responded to the poll said the unionization of teachers has had a negative effect on public education. And just over 25 percent said public-school teachers should not be allowed to strike.
Signs of Dissent
There are other signs that American workers--particularly those who do not belong to unions--view the labor movement with more than a bit of skepticism.
The afl-cio, for example, in February released what it called a "searching self-examination and honest appraisal" of the strengths and weaknesses of the American labor movement.
One section of the widely publicized report reviewed all published surveys of public attitudes toward unions conducted during the past 25 years. The section, which was prepared by the labor economists James Medoff of Harvard University and Thomas Kochan of the Massachusetts Institute of Technology with the assistance of Louis Harris and Associates, also supplemented that material with additional surveys.
"One fact emerges from the survey data quite clearly: nonunion workers do not perceive unions as pursuing an institutional agenda drawn from the needs and desires of their members," the report found. Sixty-five percent of such workers agreed with the statement that "unions force members to go along with decisions they don't like"; 63 percent said union leaders--as distinguished from union members--decide whether to go on strike; 57 percent said "unions stifle initiative"; and 52 percent said unions fight change.
"And among the population as a whole--there are no data limited to nonunion workers--50 percent state that they believe that most union leaders no longer represent the workers in their union," the report concluded.
"I don't think the little guy gets heard anymore in the union," says Ms. York, the dissident, who with about 60 of Bloomington's 640 teachers filed a lawsuit in an Indiana court in 1981 protesting an agency-shop clause in the contract negotiated by the school district's nea local. "What you seem to have now is overpowering national control. Maybe I live under a mushroom, but I still think the best thing that can happen to me still happens in my community."
"I'd say the great majority of the members of the union have no idea what the organization is promoting," adds Mr. Lee, who teaches at Bloomington High School North. "Nevertheless, they say to themselves, 'Like an umbrella, we all have to stay under together to keep out of the rain."'
In their lawsuit, Mr. Lee and the other Bloomington teachers questioned whether they could be required to pay more than $25 annually in agency-shop fees. In 1981, the year they filed their suit, union dues were set at $204 annually, $20 of which stayed with the local. About $140 was earmarked for the state nea affiliate and the remaining $44 for the national. Local union officials set the nonunion teachers' agency fee at 95 percent of union dues, claiming that only 5 percent of the fees supported political or ideological activities.
A Brown County Circuit Court judge ruled in favor of the union in 1982, a decision that was later upheld by the Indiana Court of Appeals. The union then sued the dissident teachers, who had continued to refuse to pay their fees. Last January, the Monroe County Circuit Court ordered the payment of the fees, which now total about $1,200 including interest for each full-time teacher. The nonunion teachers again have asked the state court of appeals to overturn the ruling.
"I personally would not object to paying dues on a voluntary basis to those people who represent us locally," says Mr. Lee. "They should be compensated. But when you start talking about the national nea, and when they say that only $5 of what I'm supposed to pay for annually goes for ideology, well, just pick up a copy of nea Today or listen to them on television and then tell me that what they're doing is not political."
Ms. York also says she would be willing to join the local teachers' association and to pay fees to cover the cost of maintaining the local's con-tract with the school district. But she questioned whether only $5 of her agency fee supports ideological or political activity at the state and national levels.
"Not even half of that money comes back to my local district," she says. "No one has ever shown me where that money goes. What I hear is, 'If the money goes to the state or national, it benefits you."'
Three Levels Linked
According to Carl Zager, president of the Monroe County Education Association, the Bloomington local would find it difficult if not impossible to operate without the assistance of state and national nea officials.
"We'd have to triple or quadruple our dues just to pay for office staff," says Mr. Zager, an English teacher at one of the city's middle schools. "And that just speaks to the state, where we get the majority of our help and where the majority of the money above the local goes to."
Likewise, he continues, state nea officials have told him they "would have a hard time standing alone without the support of the national nea"
According to Mr. Zager, the national and state associations set annual dues by taking the average national and state salaries for public-school teachers, respectively, and multiplying them by a fraction. The local association sets its dues by first developing its annual budget and then dividing that amount by its projected membership for that year.
The local then calculates the agency fee for nonmembers by subtracting from the amount of annual dues the cost of all political and ideological activities. The process, he says, requires "a lot of counting--hours spent by union officials, stamps used, reams of paper, lines in publications."
Mr. Zager sympathizes with the dissident teachers, who, he says, "have an honest philosophical problem, who feel a real tug between what they think the role of a professional teacher should be and what the word 'union' means to them."
Nevertheless, he faults them for not trying to work from within to change the union. "When I talk to people about this, I try to get them to tell me how many organizations they belong to that they support 100 percent," Mr. Zager says. "I belong to the Presbyterian church, and I can remember the general assembly of my church taking stands that I didn't agree with. But I didn't withdraw my membership because I continue to believe what the churchands for, and I believe that through the democratic process the church will come in line with what I believe. You have to make a judgment whether or not the group you join is more beneficial to the whole or less beneficial to the whole."
Mr. Miller, the Mennonite teacher from Ohio, says that, "after struggling with myself for a long period of time," he made such a judgment 12 years ago. His decision, however, was to quit the union.
"I could not continue to support the nea once it started to become more militant in the early 1970's," says Mr. Miller, a member of the Hartville (Ohio) Conservative Mennonite Church. "We believe that in the New Testament Christ taught a new ethic of noncoercion, nonviolence, and submission to injustice. I also feel that the association is involved in a class struggle between labor and management, and since my church does not support that kind of coercion and war on a national scale, I also disagree with either management or labor using these methods.
"It came down to a decision either to follow my convictions or to continue to be a member of an organization that did not support my beliefs," he continues. "I really didn't have much of a choice."
Mr. Miller, who teaches earth science at Field Junior High School in Mogadore, Ohio, says he was not required to pay agency fees to the Field Local Teachers Association, an nea affiliate, until last April, about one year after the state legislature passed a public-employee bargaining law permitting unions to negotiate contracts with agency-shop clauses.
Mr. Miller says that last fall he applied to local school officials for a religious exemption from paying such fees as authorized under a section of the 1983 law. The local teachers' association, however, has challenged Mr. Miller's request for an exemption, and the dispute is now before the Ohio Employment Relations Board.
"Under the law, Mr. Miller has to demonstrate a number of things before his exemption can be granted, one of which is that his church is tax-exempt under the Internal Revenue Service code," says Ronald G. Macala, the lawyer representing the teachers' union in the dispute. "We've examined this statute closely, and we believe that he has not met all of the requirements."
According to Mr. Macala, Mr. Miller was one of the first teachers in the state to apply for a religious exemption under the new law.
"Frankly, we are not sure what it all means; there's no precedent," he says. "At this point, the local association is simply protecting its negotiated contractual provision for an agency fee. We do not view this as an attack on his beliefs or his religion. We're simply trying to protect the integrity of the contract."
Mr. Macala also questions the sincerity of Mr. Miller's beliefs. "It seems ironic to me that Mr. Miller would allow the National Right to Work Committee to defend him in view of the principles of nonresistance he says he feels bound by," he comments. "On one hand, he says his faith requires him not to join or support labor associations. On the other hand, one of the tenets of his faith is that members should not join or associate with organizations that oppose the labor movement. They're supposed to stay away from the whole thing whatsoever, and yet we have National Right to Work defending him. I see that as incongruous."
Ms. Staub of the National Right to Work Committee describes her group as "a single-purpose organization" dedicated to the abolition of laws that require workers to join or to support unions.
"Ours is not a question of whether there should be collective bargaining or whether or not you should be a member of the union. We believe everyone should have that right," says Ms. Staub, a former high-school English teacher in Virginia. "Our concern also is not the ideology of the unions. It's that anyone can be forced to support that ideology, regardless of where it is on the political spectrum. To require that is, to us, the ultimate threat to academic freedom."
The National Right to Work Committee works on several fronts to achieve its goals, Ms. Staub says. In addition to providing legal aid to nonunion teachers, the group also lobbies in support of state "right-to-work" laws banning labor contracts requiring union membership or agency-fee payments. To date, 21 states have passed such laws, Idaho most recently.
Ms. Staub says she was one of many teachers who opted to quit their local nea affiliates in the late 1960's and early 1970's when national union leaders stepped up their drive to "unify" the teaching profession by requiring local members also to join their state nea affiliate and the national association.
"When I saw unification, I said to myself, 'So this is how they're going to do it. They aren't going to sell the nea on its own merits, they're just going to wrap everything up in a neat little package,"' Ms. Staub says. "I thought it was a power play. Most teachers joined their local education association because that's just what it was, a local program that dealt with issues such as improved methods of instruction and identifying illegal substances. They had nothing to do with rights, benefits, and bargaining."
According to Ms. Staub, the unions' defense of agency-shop provisions on the grounds that they prevent nonunion teachers from "riding free" on the backs of dues-paying union members fails because the problem is the unions' own creation.
"Teachers wouldn't be required to pay those fees if the union didn't fight to win monopoly representation rights and then say, 'It's unfair, a burden for us to have to represent nonmembers,"' she says. "They can't have it both ways. You can't say, 'This is an unfair burden.' If it's really a burden on them, then let's change the laws so the unions only have to represent their own members, the people who really want their services. Let the other people find their own representatives or represent themselves.
"If 100 out of 100 people want to join a union, that's fine," Ms. Staub continues. "Similarly, when the union talks about these people who're riding free, we don't think anyone who wants the benefits should not pay for them. We are talking about people who do not want the representation. They don't want it and they never voted for it."
Lack of Sympathy
For their part, officials of teachers' unions suggest that it is the dissenting teachers who want to have it both ways.
"I'd have more sympathy for these so-called dissenters if I had ever met a teacher who said, 'I don't want that salary increase or that health insurance because the union got it for me and I want the same lack of benefits and poor working conditions that I had 10 or 20 years ago,"' says Robert H. Chanin, the nea's general counsel. "Having people pay for what they get is eminently sound.
"I give Ms. Staub the benefit of doubt," he says. "The most complimentary thing I can say is that she's misguided, rather than disingenuous. Their concern for individual rights, when that translates into what their agenda seems to be--which is the destruction of meaningful unionism and turning all these individual workers over to the mercy of the employers--that hardly strikes me as the way to advance the protection of individual rights."
Lawrence A. Poltrock, a lawyer for the aft, also questions the National Right to Work Committee's motivation for pursuing agency-fee litigation involving teachers.
"It's a moneymaker for them," Mr. Poltrock contends. "Shortly after these kinds of suits are filed, you usually see all sorts of newsletters and fliers. A good right-to-work suit rolls in money from right-wingers. They take the profits and replow them into more litigation."
Both Mr. Chanin and Mr. Poltrock acknowledge that agency-fee lawsuits are costly and time consuming, but contend that they do not pose a threat to the security of the two national teachers' unions.
"Agency shop does take up a lot of my time," Mr. Chanin says. "I've probably devoted more time to this in the last three or four years than any other single issue. The cases are a harassment, annoying, time consuming, and a real pain. But 'threat' is not the word. I can't think of a major setback that the nea has experienced due to the work of the right-to-work committee."
Both unions, their lawyers say, spend significantly more money litigating agency-fee cases than they could ever hope to recover by obtaining decisions requiring nonunion teachers to pay the fees.
"nea has an annual budget of about $90 million, not counting the state and local affiliates, and our total income from agency fees has to be much less than 1 percent of the total," Mr. Chanin said. "So we don't need the agency-fee money to operate. But there's a principle here. Our people in the field increasingly resent the fact that they pay money to secure benefits that they have to share with people who freeload. We do it because the concept and the principle are important."