Law & Courts

After Supreme Court Blow, Defiant Union Looks Ahead

By Madeline Will — July 10, 2018 | Corrected: July 12, 2018 6 min read
Educators and union leaders gather in Minneapolis for the second day of the National Education Association’s representative assembly.
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Corrected: A previous version of this story misquoted the Minneapolis billboard. It read “no more forced union fees.”


On the drive from the airport to downtown Minneapolis, where the National Education Association held its annual convention last week, cars passed a billboard that proclaimed it “Teachers’ Independence Day.”

“No more forced union fees,” said the billboard, referring to the U.S. Supreme Court’s recent decision in Janus v. American Federation of State, County, and Municipal Employees Council 31 to prohibit the “agency” or “fair share” fees that public-sector unions had been charging to nonmembers in 22 states.

The sign—funded by the Minnesota-based Center of the American Experiment, a conservative and free-market think tank, and aimed at getting teachers to drop out of the union—was an ominous backdrop for what would be a defiant meeting of 9,000 educators and union leaders in Minneapolis.

“We don’t give a damn about the Supreme Court decision,” said Becky Pringle, the NEA vice president, to applause, during an open hearing on the association’s budget. She promised that the nation’s largest public-sector union would continue organizing and growing.

Still, reminders of the decision’s aftermath were everywhere. The NEA’s budget included a $50 million reduction and projected an over 10 percent membership loss over the next two years. Union leaders are simultaneously bracing for extensive messaging campaigns to convince teachers to drop their memberships and for lawsuits by teachers who want money back for the fees they’ve paid in years past.

During the conference, NEA leaders spoke of strategies for both keeping members in the union and attracting educators. They brainstormed ways to gird the union against the financial blow of the Supreme Court decision. Speakers and delegates mentioned a “post- Janus world” so often that attendees joked on Twitter that it should be part of a drinking game, or at least a slot on a bingo card.

“We knew this was coming,” said NEA President Lily Eskelsen García in an interview. “Since Friedrichs [the 2016 Supreme Court case on the same issue that deadlocked 4-4 after the death of Justice Antonin Scalia], we’ve been doing membership drives of a very different nature all over the country, in all of our affiliates—person-to-person, human contact, ‘Here’s why I belong to the union; here’s why I’m proud of what we’re doing.’”

Those personal relationships, she said, will be key to curbing the anticipated loss of some 340,000 members out of 3 million. Before the Supreme Court decision, the NEA also had about 88,000 agency-fee payers this past year, about a third of whom were full-time equivalents.

The agency fees were used by unions to cover the cost of collective bargaining. Now, the union still must represent all teachers in a bargaining unit, regardless of whether they are members. Teachers now have the choice between paying hundreds of dollars for an annual membership or paying nothing at all, and still reaping many of the same benefits.

“A lot of those fee-payers, we’re not taking it for granted that they won’t be our future members,” Eskelsen García said. “We’re actually sitting down, one fee-payer at a time, going, ‘On this day, you stopped paying fees. … What would it take to have you be a member? Because other people are paying for that [collective bargaining] service, and we need you to be a member not just to pay for that service, but to be a part of that greater voice.’”

‘A Challenge and an Opportunity’

During the conference, speakers both warned educators of the threats to come and relayed a defiant message of solidarity.

“We’re up against something pretty scary. Janus is the latest attack on our unions, but this ain’t our first rodeo,” Eskelsen García told delegates. “We’ve been under attack before. … We don’t get scared, we get ready.”

Part of the NEA’s strategy, she said, is to team up with the three other major public-sector unions: the American Federation of Teachers, the American Federation of State, County, and Municipal Employees, and the Service Employees International Union. The four unions will combine resources to organize and engage their members, she said.

As a signal of that partnership, AFT President Randi Weingarten and AFSCME President Lee Saunders both addressed the NEA delegates. (Eskelsen García and the other union heads will also be at AFT’s biennial convention this weekend.)

“Together, we can accomplish what is impossible for people to accomplish alone,” Weingarten said, adding that the unions are “really big targets because the right wing and their allies want us gone. They know we are the only organized force that will challenge their power in politics and the economy. … Janus is both a challenge and an opportunity. As Lily just said, it has made us stick together like never before.”

The conference was also happening in the aftermath of six statewide teacher strikes, walkouts, and large-scale demonstrations that took place this spring. That teacher activism, which was spurred on by low wages and cuts to school funding, energized the crowd. Many delegates sported buttons and T-shirts with the slogan “Red for Ed,” which had become a rallying cry for protesting educators in all of those states.

The NEA delegates voted on several proposals that sought to strengthen the union and support future activism. The most controversial measure was a proposal by NEA leaders to create a category of membership for community allies, or friends of public education. This would have allowed non-educators to donate to the NEA’s political action committee, which only members are allowed to do. The union would have also been able to communicate directly with those allies about political advocacy. While about 60 percent of delegates voted for the proposal, it fell short of the two-thirds majority vote needed to pass. NEA leaders have already resubmitted the proposal for next year’s representative assembly.

More Litigation to Come

As the conference was in its second day, seven teachers in California filed a class-action lawsuit seeking repayment of fees previously paid to their union. This case is the ninth lawsuit asking for back-fees that is pending against an NEA state affiliate. Maryland, Jersey, and Oklahoma are among the other state affiliates facing these suits.

“This lawsuit is rooted in correcting a significant injustice,” John Bursch, the counsel to the California plaintiffs, said in a statement. “Not only were teachers deprived of their First Amendment rights under the unconstitutional agency-fee arrangement, but thousands of dollars were taken from these teachers’ paychecks. This lawsuit seeks to recover the fees these hardworking teachers were forced to pay against their will.”

The day before the suit was filed, Alice O’Brien, the general counsel for the NEA, told delegates they had to be careful about the nomination of the next Supreme Court justice, because that person could be on a court that decides whether unions must repay agency fees that were collected before the Janus decision.

In an interview at the conference, she said she didn’t think the cases had any merit, since the union is in complete compliance with the Janus decision.

“We are confident the court ultimately will reject claims that people can go back in time,” O’Brien said. “I think there’s going to be a lot of litigation around it. Our opponents ... will continue to push these issues up to the Supreme Court.”

A version of this article appeared in the July 18, 2018 edition of Education Week as After Janus, Defiant Union Looks Ahead


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