Public employee unions worried about a potential hemorrhage of dues-paying members are getting help from Gov. Jerry Brown.
The governor and Democratic leaders in the Legislature agreed to include language in the 2017-18 state budget that will require school districts, cities and other government agencies to give their employee unions regular opportunities to meet and sign up new workers.
The Democrat-controlled Legislature is expected to pass the language, which is included in Senate Bill 204 and Assembly Bill 119, two of the budget “trailer” bills, on Thursday (see Section 2, starting 3555). It would require government agencies to negotiate the details of when, where and how unions could have access to recruit new employees; and to provide job titles and contact information for all employees at least every 120 days.
Public unions see the new requirement as one strategy they’ll need to stave off a decline in members if, as anticipated, the U.S. Supreme Court rules that public workers don’t have to pay the unions’ cost of negotiating contracts on employees’ behalf and representing them on issues related to working conditions, wages and benefits.
A majority of the Supreme Court was poised to take that action last year in Friedrichs v. the California Teachers Association, a lawsuit filed by 10 California teachers who challenged the constitutionality of mandatory “agency” or “fair share” fees. But the court split 4-4 after Justice Antonin Scalia died in early 2016, leaving the case up in the air.
Now, a similar case out of Illinois, Janus v. American Federation of State, County and Municipal Employees, has filed an appeal to the Supreme Court, which could decide to hear it as early as next fall. Unions are all but resigned that President Donald Trump’s first appointee to the court, Neil Gorsuch, will be the fifth vote to reverse the court’s earlier decision allowing agency fees. In that 1977 ruling, the court said agency fees were permissible in order to avoid “free riders” – union members who benefit from contracts without sharing the costs of negotiating them.
The impact of switching to a system in which dues are totally voluntary instead of automatically collected could be a big hit on unions’ finances and political clout, with predictions of a loss in dues ranging from 20 to 40 percent.
Currently, about 10 percent of California teachers opt out of paying the CTA’s full membership dues, approximately $1,000 per year. Instead, they pay only the mandatory agency fees, about $600 per year. They don’t pay the cost of union politicking – supporting candidates and lobbying for issues – and they don’t get some benefits that come with membership.
If agency fees become voluntary with a ruling in Janus, “our world will change dramatically; having time to talk about what we do, who we are, why we are stronger if folks agree to be members will become doubly important,” said Joshua Pechthalt, president of the California Federation of Teachers. “Anything to mitigate a loss of membership would be helpful.” The CFT, the smaller of two statewide teachers unions, represents about 120,000 teachers and college faculty and staff.
Last year, unions were unsuccessful in persuading the Legislature to pass Assembly Bill 2835, co-authored by Assembly Speaker Anthony Rendon, D-Lakewood, and Senate President Kevin de Léon, D-Los Angeles. It would have required all public employers to hold face-to-face orientation meetings for new employees, starting with a half-hour pitch by unions on union representation, and to provide contact information on new employees within 30 days of being hired. The latter provision is in the new agreement.
With school districts and other public agencies opposing the bill as too prescriptive and potentially costly, the Brown administration negotiated a compromise. The Department of Finance calls it “practical middle ground,” providing “meaningful access” while recognizing public agencies vary in size and operation. It leaves it up to unions and employers to negotiate basic details, such as orientation frequency, form, location and whether there will be in-person meetings for unions. If negotiations fail, unions can immediately seek binding arbitration on this issue, a process that districts say generally favors unions.
Giving districts flexibility to negotiate the details of union access is an improvement, said Edgar Zazueta, senior director of governmental relations and policy for the Association of California School Administrators. “A requirement for a face-to-face meeting would have been a deal breaker for us,” since training in particularly small and rural districts often occurs online, he said.
Zazueta said that many districts already set aside time for union representatives to speak at teachers orientations at the start of the school year. The new requirement to give unions a 10-day notice of orientations is potentially problematic for classified workers, like clerks and bus drivers, who are regularly hired throughout the year, often in response to an emergency, he said.
Zazueta and Dennis Meyers, assistant executive director for government relations for the California School Boards Association, listed concerns about the agreement, including the potential costs of binding arbitration, in a June 14 letter to Brown and legislators. It calls for eliminating the 10-day advance orientation notification and protecting employers from liability from employees who don’t show up for orientation meetings.
But Pechthalt complained that the new agreement creates a lot of “wiggle room” for employers to stall negotiating access to workers, particularly in places where unions are not strong.
Although overall only 11 percent of employees represented by the California Federation of Teachers pay agency fees instead of full union dues, he projects that as many as 30 to 40 percent of adjunct community college teachers – underpaid “freeway fliers” who teach at multiple campuses – might stop paying anything to the union if a ruling in Janus v. AFSCME eliminates mandatory fees. And some who currently pay only agency fees assume they’re union members when they’re not – which is why outreach is critical, he said.
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