In recent weeks, a federal judge in Washington state has designated a teacher union-dues lawsuit a class action, while one of his counterparts in Pennsylvania has ordered the state’s largest teachers’ union to open its books for inspection. Meanwhile, the National Right To Work Legal Defense Foundation announced that it had hired a new lawyer for the exclusive purpose of pursuing cases against the National Education Association.
Each of these events by itself might seem just a blip on the radar screen of the powerful, 2.2 million-member union. But with each new development, the free-agency forces are slowly trying to chip away at the NEA’s efforts to collect fees from nonmember teachers.
EA officials downplay the legal challenges, claiming they are recurring and expected rather than on the rise. Even so, some observers say, the union must devote attention to such cases, perhaps at the expense of its recent campaign to focus on the professionalism of the teaching force.
To the NEA, the country’s largest teachers’ union--and the group against which most such challenges have been directed--the cases are part of a perennial conflict that involves a small minority of teachers and is kept alive by anti-union activists.
But to the Springfield, Va.-based National Right To Work foundation, a nonprofit group that provides legal aid to those teachers, the cases are increasing as more teachers learn of their rights. And to the teachers who seek the foundation’s help, the cases represent an attempt to ensure that the fees they pay are not being improperly channeled into political and other activities unrelated to the cost of collective bargaining.
Foundation officials say their caseload has grown so significantly during the past two to three years that they needed to add the new lawyer. In fact, they say they are currently litigating more than 100 of these kinds of cases against the NEA.
Rex Reed, the legal director for the foundation, said that the organization’s increasing caseload is due to more teachers’ becoming aware of their rights. “We’ve done a lot to expose the information to the public,” he said, “and as each case is brought, it gets attention, and that gives people more information.”
Paying the Dues
Teachers who are union members are considered voluntary members of a private organization and, therefore, do not have legal grounds to reclaim the portion of their dues used for political activities.
For teachers who choose not to be members, the issue of whether they have to pay union fees varies by state. According to Concerned Educators Against Forced Unionism, which is an arm of the National Right To Work Committee, a sister group of the foundation, 20 states recognize unions as the exclusive bargaining agent for teachers. That means unions can charge teachers fees for bargaining costs.
The U.S. Supreme Court ruled in 1977 that unions may charge nonunion teachers only for the costs associated with collective bargaining, not for political activities. As a result, teachers in those 20 states who do not wish to become union members pay what is known as an agency fee. That charge represents a nonunion teacher’s share of the costs associated with collective bargaining, from which all teachers, union members and nonmembers alike, partake in the form of raises and other benefits.
It is the amount of money that the union charges for collective bargaining costs, and what activities can be counted under those costs, that has been the subject of dispute in many court cases.
In Michigan, for instance, an agency-fee dispute recently traveled all the way to the U.S. Supreme Court. A federal appeals court had ruled in favor of the nonunion teachers. They had claimed that some of their agency fees were subsidizing activities other than collective bargaining, such as litigation that did not concern the bargaining unit in which the fee-payer worked. The appeals court said that the nonunion educators had the right to examine union financial documents in lawsuits challenging the fees.
Rejecting an appeal from the NEA and its state and local affiliates in Michigan, the Supreme Court let the appellate ruling stand. The case is now back in U.S. District Court. (“Court Refuses Case Seeking Appeal of Student Expulsion,” Jan. 15, 1997.)
In the Pennsylvania case, a federal district court recently ordered the Pennsylvania State Education Association, an NEA affiliate, to open its records to nonunion teachers challenging collective bargaining fees.
Washington State Issues
The agency-fee case in Washington state has pitted the Washington Education Association and the NEA against the National Right To Work foundation and nonunion teachers over such agency-fee issues as disclosure requirements. The foundation says the suit covers some 2,700 teachers.
Adding to the mix is a separate case in Washington state in which the state attorney general has filed a suit charging the 65,000-member Washington Education Association with multiple campaign-finance violations. That case has drawn national attention as well as predictions that it will lead to similar scrutiny of teacher unions’ campaign activities in other states. (“Wash. Union Charged With Campaign Violations,” Feb. 26, 1997.)
The WEA’s actions in the two Washington state cases have raised the ire of some local teachers, including those who say they do not necessarily oppose the union’s politics.
Cindy Omlin, a speech pathologist in the Spokane, Wash., schools, claims that she was unable to get information on how her dues were being spent until after she resigned from the union and became an agency-fee payer. For its part, the NEA says that union members are able to receive the same financial information given to agency-fee payers.
Nevertheless, Ms. Omlin formed the WEA Challenger Network, a grassroots group with a mailing list of about 300 members that informs teachers of their rights regarding information on spending activities. She says that the network’s teachers represent a broad base of political interests and are simply concerned with teacher awareness and union accountability.
“Some issues I agree with the NEA on; other issues, I don’t agree on,” Ms. Omlin said. “I would rather, with my family’s income, if we’re going to make contributions to political causes, do that issue by issue.”
A Cyclical Affair?
Robert H. Chanin, the general counsel for the NEA, said that the agency-fee cases, such as the ones in Washington, Pennsylvania, and Michigan, seem to come in waves.
“As the cycles go, we’re now in an active cycle on agency-fee litigation,” he said in an interview. “It’s par for the course--we expect them--it gives the ‘right to work’ people something to do.”
The right-to-work organizations “live to harass unions,” particularly the NEA, Mr. Chanin said. “They profess merely against forced unionism, but their actions belie that,” he maintained.
Mr. Chanin said that the NEA probably invests more staff time than any other labor union in keeping its auditing processes accurate and making sure they meet the highest legal standard. Out of hundreds of arbitrations on agency-fee cases each year, he said, only a handful ever end up in a lawsuit.
As for the separate issue of alleged campaign-finance violations in Washington state, Mr. Chanin said, “the WEA has done absolutely nothing wrong and will defend this vigorously.”
Most of the National Right To Work foundation’s teacher cases are against the NEA because it is larger than the American Federation of Teachers, the country’s other major teachers’ union, and teachers in NEA affiliates call more often about the issue, said Stefan H. Gleason, the director of communications and development for the foundation.
Most of the AFT’s affiliates also happen to be in urban districts that historically have been sympathetic to union activity.
Mr. Gleason added that his group was not driven by any particular agenda for teachers. “We don’t promote or discourage union membership; we challenge forced union membership,” he said.
“If [unions] were representative of teachers’ interests, teachers would join voluntarily and pay voluntarily,” Mr. Gleason contended.
Lurking in the shadows of the debate over the use of dues is the issue of the unions’ political activism, a source of resentment among anti-union activists.
Among other activities, the NEA and the AFT are major political-action-committee donors. According to Federal Election Commission data compiled by the Washington-based Center for Responsive Politics, a nonpartisan research organization, the NEA’s PAC contributed $2.3 million to congressional candidates in the 1995-96 election cycle, while the AFT gave $1.6 million. PAC contributions do not come out of dues.
Those donations also happen to be all but one-sided: Ninety-nine percent of the NEA money and 98 percent of the AFT money went to Democrats.
Yet in a survey of 1,018 public school teachers from last October, the Washington-based National Center for Education Information found that while 42 percent said they were Democrats, 30 percent said they were Republicans and 28 percent called themselves independents.
Also fueling the fire of union foes is the murky issue of “soft money” contributions from unions, according to a 1996 Congressional Research Service report. These kinds of contributions, which include miscellaneous activities such as get-out-the-vote drives, are harder to quantify because they are not subject to the same federal regulations and reporting requirements as direct contributions.
In the last election cycle, the NEA tried to soften its partisan image by removing party labels from its campaign materials and focusing its literature on issues rather than political ideology. Moreover, the union has become more bipartisan in its political endorsements at the state and local level. (“Teachers’ Unions Flex Political Muscles as Election Nears,” Oct. 16, 1997.)
Keeping a Focus
EA President Bob Chase has pledged to “reinvent” the union with an emphasis on professionalism and collaboration. But can the NEA keep a focus on that pledge while agency-fee challenges and the Washington state campaign-finance cases continue to demand union attention? (“Seeking ‘Reinvention’ of NEA, Chase Calls for Shift in Priorities,” Feb. 12, 1997.)
According to Paul F. Steidler, the director of the Education Reform Project at the Alexis de Tocqueville Institution, a conservative think tank in Arlington, Va., that has emerged as a leading critic of the NEA, the agency-fee issue is one in which the NEA “cannot throw in the towel.”
“Their strategy is and has to be to fight these things tooth and nail,” Mr. Steidler said. “I think that’s going to happen irrespective of the rhetoric that was given in [Mr. Chase’s] speech.”
But Julia E. Koppich, the co-author of a book arguing that teachers’ unions should be a major force in reshaping the profession, said that serious consideration should be paid to how pervasive the agency-fee lawsuits are--and who is advancing them.
Some of these outside groups don’t see the education reform potential of unions, said Ms. Koppich, who is also the managing partner of Management Analysis & Planning Associates in San Francisco. And the time that the unions have to spend defending themselves in these cases distracts from the time they might give to loftier goals, she argued.
“Imagine what a powerful force unions could be if they focused on learning issues,” she said. “The extent to which they must divert time and attention to these peripheral issues, that’s the extent to which they can be less effective on the central issue of education.”