Teachers, Unions and Professional Alternatives:
A question of choice.
A word of warning
The discussions in recent years of a merger between the National Education Association and the American Federation of Teachers, AFL-CIO have generated new interest among teachers in the question of whether they should be a member of a labor union. This is not really a new issue. Ever since the National Education Association underwent a self-imposed transformation from a professional association to a labor union, many teachers have questioned whether or not they should be union members.
The following information is provided to inform teachers about their right not to be a union member and professional alternatives to unionism. It begins with a discussion of some of the very legitimate reasons why a teacher might not want to join a union.
Teacher unions are well aware of these reasons. For political reasons they strive to give the impression that the union represents all teachers. This is clearly not the case. Evidence of this is available from the fact that so many teachers are seeking professional alternatives to unionism. That will be discussed in more detail later.
Teachers and Union Membership:
There was a time, not too long ago, when union membership wasn't a big issue for teachers. Almost every teacher belonged to a local classroom teachers association but membership in the state and national teacher associations was voluntary and not very widespread.
Then, in the late 1950s, states began enacting laws granting unions in public education the privilege of being the exclusive representative of all teachers in a school district in their employment relationship. At the same time, some state affiliates of the National Education Association adopted a policy called "unified dues." Under unified dues, a teacher who wished to belong to a local classroom teachers association affiliated with the state association, had to become a member of both the state and national organization.
During the 1960s the National Education Association underwent a transformation from a broad based, professional association to a labor union. That transformation was complete by the early 1970s at which time the NEA adopted a policy requiring all state affiliates to enforce unified dues.
The convergence of the laws giving teacher unions monopoly representation powers and the adoption of unified dues brought many teachers into a situation where they were members of local, state and national unions without really having given it much consideration and, in many instances, without much choice in the matter.
Why wouldn't a teacher want to be a union member?
The reasons a teacher might not want to join or support a union are as different as people are different. The scope of this information doesn't allow a thorough discussion of all of them, but it's important to deal with at least some of the factors.
A great deal of discussion about teachers objecting to unionism has focused on the positions national and state teacher unions have taken on controversial political and social issues having little, if anything, to do with education. If a teacher has conservative political views or deeply held moral or religious beliefs contrary to the positions taken by unions, they have a very legitimate reason not to want to do anything to support the union.
In some states with laws sanctioning contracts under which a teacher who isn't a union member can be forced to pay a fee to a union as a condition of employment, teachers who have religious objections to supporting a union are permitted to pay an amount equivalent to union dues to charity.
That practice, however, concedes to the union the idea that union representation is a benefit to all teachers and that they should be required to pay for it. Unions, and unfortunately the courts, have adopted the idea that teachers who don't want to pay for union representation are so-called "free riders." What this argument overlooks is that many nonmembers may not consider union representation to be a benefit at all and rather than being "free riders" they are in fact "captive passengers."
Allowing religious objections has also allowed the unions to characterize and isolate teachers who don't want to support a union by labeling them as the "religious right."
Many fair-minded teachers who agree with union positions on political and ideological issues realize that it is wrong to force their colleagues who disagree to support a union. In addition, just as some teachers who disagree with union political positions agree with union positions on employment issues, so do some teachers agree with union political positions but oppose unionism on employment issues.
Indeed, there are many other very practical, work place related issues that might cause teachers to question whether union membership is in their best interest.
Teacher unions perform several different functions in representing their members.
The first and most important of these is political. In fact, some public sector union officials have admitted that their unions are essentially political organizations. It is political activity that has raised the most concern about compulsory fee payments to public sector unions.
Teacher unions also negotiate and enforce contracts. As mentioned below, the Supreme Court regards this function as the only legitimate use of compulsory union fees. A careful analysis of these activities, however, raises questions about whether they are legitimate.
Since public employers often face constraints on the total amount of money that can be allocated to personnel costs, unions do not always achieve higher benefits for their members at the expense of the employer. Frequently, higher benefits for one group of union members are achieved at the expense of another group of employees, sometimes even at the expense of employees within the same bargaining unit.
For example, teachers with more seniority may be more concerned with extra steps on the salary schedule based on seniority while newer teachers may be concerned about increasing entry level pay. In a bargaining unit where the union's bargaining position is dominated by a majority of teachers who have long job tenure, the extra steps in the seniority ladder may be achieved at the expense of increases in entry level pay.
This is a particular problem for teachers because unions tend to insist that most new money available for compensation be devoted to the top end of the pay scale. This has made it increasingly difficult for many districts to offer entry level pay sufficient to attract well qualified new teachers.
Some teachers would prefer that their compensation be based on their own merits and productivity rather than on subjecting it to a group decision. Teacher unions have historically resisted efforts to base teacher pay on performance. To these teachers, union representation may be perceived not as a benefit, but as an insult.
Unions, of course, deal with matters other than compensation. They also represent teachers in grievances. In this area, the invalidity of the "free rider" argument is even more obvious.
Unions represent teachers in job related grievances. These are usually portrayed as disputes between management and labor, but they are quite frequently really problems between teachers. For example, if a grievance is about being passed over for promotion or transfer, it may appear to be a dispute regarding management's decision about the promotion or transfer, but it may in reality be a dispute between the teacher who was not promoted or transferred and the one that was.
Unions also spend quite a bit of time defending individual teachers in "adverse actions" regarding their own employment. These issues often involve absenteeism, misconduct, poor evaluations, etc.
Typically, only a few teachers require such representation and their need for it is chronic. All the other teachers suffer from the few teachers who are constant problems. They may be required to do the work of those who are absent in addition to their own work or find that they are frequently asked to perform certain less desirable tasks because of reluctance to give such assignments to teachers who will "raise a stink" about them.
Teachers who have had union representation imposed on them and who are not union members may have decided not to join the union because they resent the union's role in defending the small minority of teachers who are incompetents and chronic malcontents. For these teachers, union representation may be the exact opposite of a "benefit." Requiring them to pay for it would be a classic case of rubbing salt in a wound.
The Legal Situation:
All public employment is exempt from the provisions of the National Labor Relations Act. Policies dealing with unionism and collective bargaining in public employment are governed by state law. As a result, the situation teachers find themselves in will depend on the laws in the state where they teach, whether the district for which they work has a contract with a union and the terms of that contract.
In some states the law giving teacher unions monopoly representation power also sanctions contracts under which teachers who are not union members can be forced to pay a fee to a union as a condition of continued employment. These laws have been the subject of several U.S. Supreme Court decisions related to a teacher's right to refuse to support a union. Even though state laws only permit compulsory union fees for teachers in 19 states, because these states are the more populous ones, they impact the majority of all teachers.
States where it is legal to force teachers to support a union.
1 In Maryland the sanction for compulsory agency fees is done by the state legislature on a county by county basis. At the present time teachers can be compelled to support a union in only a few highly populous counties.
2 In New York the law provides that agency fees are automatic and mandatory. As a result they are not subject to contract negotiations.
In 1977, in the Abood case, the U.S. Supreme Court has ruled that forcing teachers to support a union political and ideological activity violates their First Amendment. It did, however, allow unions to force teachers, who are not union members and who object to unionism, to pay for the cost of representation. Unfortunately, they left the union in virtually complete control of determining the amount objecting teachers could be forced to pay.
In 1986, in the Hudson decision the Supreme Court gave teachers who objected to being forced to support a union due process rights in the determination of the amount of the fee. This requires the union to provide fairly detailed, audited financial information about their expenses before they can deduct a compulsory fee and gives teachers who object to the amount the right to have their objections heard.
Despite this these legal protections, unions still attempted to include in the chargeable expenses items that were clearly not for contract negotiations and enforcement. The Supreme Court revisited the issue again in 1991 in the Lehnert case where it set forth some clear guidelines on what union expenses a teacher who wasn't a union member could be forced to pay.
The Supreme Court's restrictions on what union expenses were chargeable in union representation fees go far beyond political and ideological expenses. So far as the Court is concerned, the only legitimate expenses for which a union can charge a nonmember are for contract negotiations and enforcement.
Most agency fees are assessed at the same rate as union dues. The Supreme Court decisions only give teachers the right to object to paying the full amount and to have the assessment reduced to the actual cost of union representation.
While unions charging non members agency shop fees are required to provide financial information about their expenses, the information provided by many teacher unions in these so-called "Hudson notices" is generally couched in terms that obscure the fact that a teacher has the right to object and to have the fee reduced to the actual cost of representation.
As a result, many teachers who are not union members and who object to union activity are paying the same amount as their union member counterparts.
In other states with monopoly bargaining laws, but without sanctions for compulsory union fees, teachers are free to decide for themselves whether or not to join or support a union.
States with laws giving teacher unions monopoly representation
privileges, but without a sanction for compulsory agency fees.
In these states, however, unions are granted monopoly bargaining privileges so even though a teacher is free from being forced to join or support a union they are still compelled to accept union representation. The only escape from unionism for teachers in those circumstances is to decertify a union as their representative.
Many other states have no law giving teacher unions monopoly bargaining privileges so union membership would appear to be entirely a matter of individual choice.
States without laws giving teacher unions
monopoly representation privileges.
|Colorado||New Mexico||West Virginia|
While teachers can't be forced to join or support a union in states without sanctions for compulsory agency fees or without union representation laws, they can't afford to be complacent about their right to resign from a union, if they should choose to do so. Even in states without mandatory bargaining laws some school districts have negotiated contracts with teacher unions.
Many teacher union contracts contain very narrow '' escape clauses" - very brief windows of time during which a teacher who is a union member may resign. These windows are frequently set during a time, like the middle of summer vacation, when union membership is the furthest thing from a teacher's mind. Thus, teachers who decide to resign their union membership may need to check the language of their union contract before resigning.
Such contract provisions are almost certainly illegal, but teacher unions faced with a lawsuit on this issue have decided to allow individual members to resign in order to avoid the establishment of a legal precedent that would be of value to all teachers. As a result, teachers attempt to resign from a union and are told that the contract requires them to wait a year or two for the right time. If they don't know about the law and don't have the resources for a lawsuit, they may be discouraged and let the matter drop.
Fortunately, there is a source of free legal assistance for teachers faced with such difficulties. Any teacher who believes that their rights to not be a union member or to object to being forced to finance union political activity are being violated may contact the National Right to Work Legal Defense foundation for free expert legal advice and, if necessary, representation. The Right to Work Foundation is responsible for all of the U.S. Supreme Court victories against compulsory union fees mentioned above. It has a toll free number, 1-800-336-3600 and a web page "www.nrtw.org" teachers can contact for further information.
Professional Alternatives to Unionism:
The advent of monopoly union bargaining and unified dues sparked resistance among many teachers. Some of them chose to form what they called "professional educator" organizations.
These organizations generally rejected the union ideas of exclusivity, in that they did not seek to impose themselves on any one who didn't voluntarily associate with them and they didn't ostracize educators in administrative positions. They also rejected the union's adversarial and confrontational approach to employer-employee relations, seeking instead a more cooperative relationship. They adamantly oppose strikes against public education and any form of compulsory union dues or fees.
The professional educator groups also do not take positions on political and ideological issues not directly related to education and generally avoid political activity in the form of endorsement of candidates and the establishment of political action committees.
One of the reasons some teachers who are opposed to unionism give for maintaining their membership in a labor union is that it is through their union membership that they obtain professional liability insurance. This is unfortunate because the actual cost of this insurance is a small fraction of the typical cost of local, state and national union dues. Many teachers are paying more than $500 a year in union dues to obtain an insurance policy that costs $25 or less. The professional education associations also provide professional liability insurance comparable in every way to that provided by the labor unions and their dues average about $120 a year.
Progress for the professional educator groups was slow at first but in recent years they have become an increasingly significant factor. In several states membership in the professional educator group exceeds that of the organizations affiliated with the National Education Association or the American Federation of Teachers, AFL-CIO.
Most of the professional education associations are state based. It should not be surprising that they have been more successful in states without laws granting teacher union the powers of monopoly and compulsion. This is further evidence that when teachers are free to make a choice many do not choose monopoly unionism.
States with professional education associations.
Because of the harm national unionism has done to teachers and to education, most of the state based professional associations are very jealous in protecting their prerogatives and independence. Despite these reservations, several of the organizations have formed a loose alliance in the form of the Coalition of Independent Education Associations.
A more recent development is the establishment of a national organization, the Association of American Educators (AAE). AAE offers teachers in states where no viable independent, professional association exists, or who are not attracted to membership in the existing professional association in their state, an opportunity for participation in a professional alternative to unionism. The fact that the AAE is a member of the Coalition and that several of the state professional associations are affiliated with AAE, but do not require their individual members to join AAE, demonstrates the degree to which these organizations adhere to the principles of independence and voluntarism.
There is truly a worthwhile distinction between the labor union model for teachers and a professional association. Teachers interested in investigating these professional alternatives may contact them as follows:
Coalition of Independent Education Associations
c/o Palmetto State Teachers Association
2010 Gadsden Street
Columbia, SC 29201-2033
Association of American Educators
26012 Marguerite Parkway, #333
Mission Viejo, CA 92692
There are also options available to teachers who are disenchanted with involvement with state and national organizations, but who aren't comfortable with the idea of abandoning a collectively negotiated contract all together. In several districts teachers have found that they could avoid most of the difficulties associated with unionism by forming an independent, local organization for the purpose of contract negotiations. This may be accomplished in a variety of ways. The details of this process differ from state to state. Teachers interested in learning more about this may contact the Public Service Research Foundation for additional information.
A word of warning:
While teacher unions portray themselves as defenders of the rights of teachers, when it comes to teachers exercising their right to not be a union member or to rid themselves of a union, all thoughts of justice and fairness go out the window. The stories of teacher union abuse of teachers who don't toe the union line are legend.
Some might think that this is another reason so many teachers are union members, but on the other side of that coin is the idea that many teachers don't want to associate with any organization that would even dream of subjecting a fellow teacher to such abuse.
(For more information on teacher union tactics see the interview in the October 1985 "Insider's Report" with former NEA union official John Lloyd who discusses union tactics.)