Teachers, Teacher Unions and Compulsory Union Fees
School Board Member's Rights and Responsibilities
By David Y. Denholm

This paper was adapted from a presentation made by the author at a Table Talk at the California School Boards Association Convention in December 1994.

Introduction

The ideas expressed in this paper are for school board members who want to take a pro-active role in recapturing control of public schools from teacher unions.

I am not an attorney. Even though I will discuss quite a few court decisions, this is not legal advice. My experience is that attorneys can give you any advice you want. If you get legal advice on this and the attorney tells you not to do it or that it can't be done, get a different attorney.

Recapturing control of public education will not take place so long as the teacher union is strong. The first task is to sufficiently weaken the union. One of the best and easiest ways to accomplish this is to alienate some portion of the teachers in your district from the union. The agency fee is an excellent tool with which to begin this work.

It is a fundamental law of economics that the more something costs the less people buy of it. The same should be true of union dues and fees. The greater the difference between full union dues and agency fees, the more likely it is that teachers will opt to become fee payers rather than lull union members.

This paper will cover the major U.S. Supreme Court decisions dealing with the agency shop in public employment, the question of indemnification clauses in agency shop contracts, how the amount of the agency shop fee is determined, and what a school board member might do to have an influence on this. 

The U.S. Supreme Court and the Legality of Agency Fees in Public Employment

When laws were first enacted sanctioning contracts between school boards and unions under which nonmembers could be required to pay a fee to the union as a condition of employment, many thought that they were unconstitutional because of the political nature of public sector unions and the public sector decision making process.

The first challenge to their constitutionality to reach the U.S. Supreme Court came in Abood v. Detroit Board of Education in 1977. In this case, the Court upheld the constitutionality of agency shop fees citing the governments interest in labor peace and in preventing so-called "free riders." The decision did offer a ray of hope, however, by finding that such fees violated employees First Amendment rig an ruling that the fee charged could only be for the union's actual cost of representation and must not include union expenses for political, ideological and other non representation purposes.

For most of the unions this decision was a yawner. They readily agreed that somewhere between 1 and 5 percent fell into these categories. They continued to insist that the agency fee be 100% of the amount of union dues and set up elaborate, time consuming processes for nonmembers to request a rebate of the nonrepresentation cost, if they wanted it. One public sector union, a Communications Workers of America Local in New Jersey, decided that the rebatable amount was $.01 (one cent) and insisted that the request for the rebate be sent to the union by Certified Mail. For most public employees the small amount of money simply was not worth the time, trouble and harassment.

Then, in 1986, the Supreme Court, in Chicago Teachers Union v. Hudson ruled that public employees had due process rights in the determination of the size of the fee. This meant that nonmembers had to be provided advance notice of the amount of the fee and sufficient audited financial information about union expenses to determine whether they believed the fee to be appropriate. If the teacher objected to the size of the fee, the objection had to be resolved by a neutral arbitrator.

Compliance with the Hudson decision was spotty and sloppy. Many arbitrators and local courts, perhaps for political reasons, were reluctant to provide teachers with full protection of their due process rights. The most egregious difficulty for nonmembers was that man unions insisted on continuing to include in representation costs expenses which were clearly not within the Supreme Courts decisions.

In 1991, in Lehnert v. Ferris Faculty Association, the U.S. Supreme Court established a three-part standard for determining whether a union can charge nonmembers for an expense without impinging upon the nonmembers' first amendment rights:

  1. Union expenses must be "germane" to collective bargaining;
  2. The expenses must be for activities that are justified by the government's vital policy interest in labor peace and avoiding "free riders"; and
  3. The expenses must be for activities that do not significantly add to the burdening of free speech that is inherent in allowing an agency shop or union shop.

The importance of this cannot be underestimated. In 1992 an Indiana State Court of Appeals reversed itself on a decision in Albro v. Indiana Education Association about what was chargeable based on the Lehnert decision and disallowed teacher union charges for lobbying, political and charitable contributions, public relations, extra-unit litigation, "offensive or "defensive" organizing, members only benefits and state and national affiliate expenses which do not meet the Lehnert test.

After this decision, some experts estimated that the union would only be able to collect about 20 percent of union dues from fee payers. In Indiana, even after Lehnert and Albro decisions, the union, with an arbitrators blessing, lowered the agency fee from about 89 percent to about 86.5 percent. Since the Indiana statute does not explicitly provide for agency fees, the union must sue individual teachers for nonpayment, which it is routinely doing in every district, except for the one in which this decision is effective in order to avoid any further erosion of its position.

(None of the above court decisions would have been achieved without the National Right to Work Legal Defense Foundation's litigation program, which has been re presenting teachers in their efforts to defend their Constitutional rights against the National Education Association for more than twenty-five years.) 

School Board Member Liability and Union Indemnification

Let me from the outset establish that I think a school board member has a legitimate role in determining the amount of the agency fee assessed to employees of the district. Public employees have Constitutional "due process" rights in the determination of the amount of the fee. Any school board member who agrees to using the power of the public agency to collect an improperly determined agency fee is a party to violating the Constitutional rights of the employee.

Most union contracts have clauses indemnifying the school board from damages from the enforcement of agency fee contracts. Typically they say something like,

Board member and the School District, including every officer, appointee and/or employee of the district, harmless against any and all claims, demands, costs, suits or other forms of liability of any nature, including back pay , and all court and/or administrative agency costs; reasonable counsel fees and all other legal costs and expenses that may arise out of or by reason of action by or action not taken by the Board or District for the purpose of complying with this provision and/or this Agreement.

When it comes to the determination of the amount of the agency fee, because such determination is protected by Constitutional "due process, such clauses are literally not worth the paper they are printed on.

The U.S. Court of Appeals for the 6th Circuit in Cramer v. Matish, ruled that a clause in an agency shop agreement...

indemnifying the state for constitutional violations is void because it is against public policy for the state to shirk its responsibilities. Under Hudson, the public employer, not the union, has the primary duty to ensure that the plan is constitutionally valid. Indemnification clauses in collective bargaining agreements which purport to relieve public employers from liability for violations of federal constitutional and civil rights are void as against public policy. Without such a role, public employers would have no incentive to fulfill their constitutional duties.

It is true that the 9th Circuit in Mitchell v. Los Angeles Unified School District ruled that...

The mere existence of an indemnity clause whereby (a union] agrees to hold harmless (a public employer] for adverse actions arising from the union's enforcement of the agency fee arrangement is not facially or, as applied to the facts in the case, unconstitutional.

But, please note that this deals only with the "existence" of the clause and does not address the question of its validity.

In Mitchell, the court also said,

Under Hudson, a public employer, as well as the public employees' union, has a responsibility to see to it that ad equate procedures are provided which minimize the impingement of the non-members' constitutional rights.

And, further that,

It is the public employer's involvement in the agreement authorizing the seizure of the agency fees that gives rise to a claim by plaintiffs for deprivation of federally secured constitutional rights. And the public employer is the one that deducts the fee from its employees' paychecks. In short, dispense with the public employer and there would be no cause of action.

It is also my understanding that some Public Employee Relations Boards (PERB) have determined that the existence of an indemnification clause is not an Unfair Labor Practice. But the fact that something is not an Unfair Labor Practice does not in any way protect a school board member from being named individually in a suit in federal court.

The above is not intended as a definitive legal determination of the legal liabilities of individual school board members who participate in the approval of an agreement requiring the payment of unconstitutionally determined agency shop fees. That will undoubtedly eventually be determined by the U.S. Supreme Court. Its purpose is to demonstrate a convincing rationale or justification for the school board member who wants to take a more active role in these matters to do so.

The Union Benefit Theory

The unions contend that all employees who are represented by a union should be required to pay the cost of such representation on the theory that they benefit from the union's representation and failure to pay for it gives the nonmember a "free ride" at the expense of the dues paying members.

As noted above, the U.S. Supreme Court subscribed to this argument in finding that the government's interest in avoiding "free riders" was sufficient to warrant violating the First Amendment rights of public employees. What this argument overlooks is that many teachers who are not union members may not consider union representation to be a benefit at all and rather than being "free riders" they are "captive passengers."

Public sector unions perform three distinct functions in representing their members. The first and most important of these is political. In fact, some public sector union officials have admitted that these unions are essentially political organizations. It is political activity that has raised the most concern about compulsory fee payments to public sector unions. I have already discussed the fact that many teachers do not agree with union positions on political issues.

A careful analysis of the other union activities, however, raises questions about whether they too are legitimate.

Since public employers face constraints on the total amount of money that can be allocated to personnel costs, unions do not always achieve higher benefits at the expense of the employer. Frequently, higher benefits for one group of employees is achieved at the expense of another group of employees within the same bargaining unit.

For example, more senior workers may be more concerned with extra steps on the pay scale based on seniority while less senior employees may be concerned about increasing entry level pay. In a bargaining unit where the union's bargaining position is dominated by a majority of employees who have long job tenure, the extra steps in the seniority ladder may be achieved at the expense of increases in entry level pay.

Some employees are more security conscious than others. They may prefer increased retirement benefits to increased pay. If a union adopts this position, the increased retirement benefits may come at the expense of employees who would prefer an immediate increase in their take home pay.

Some employees are simply more individualistic than others and would prefer that their compensation be based on their own merits rather than on subjecting it to a group decision. To these employees, union representation may be perceived not as a benefit, but as an insult.

On the question of pursuing grievances the invalidity of the "free rider" argument is even more obvious. Unions represent employees in job related grievances. These are usually portrayed as disputes between management and labor, but they are in reality quite frequently problems between employees.

For example, if a grievance is about being passed over for promotion or transferred, it may appear to be a dispute regarding management's decision about the promotion or transfer, but it is in reality a dispute between the employee who was not promoted or transferred and the one that was.

Unions also spend quite a bit of time defending individual employees in "adverse actions" regarding their own employment. These issues often involve absenteeism, insubordination, poor evaluations, etc.

Typically, only a few employees in a bargaining unit require such representation and their need for it is chronic. All the other employees in the bargaining unit suffer from the few employees 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 tasks because of management's reluctance to give less desirable assignments to employees who they know will "raise a stink" about them.

Employees who are bargaining unit members 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 employees who are incompetents and chronic malcontents. For these employees, 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.

Teachers' Opinions

Many teachers, perhaps even most teachers, are not union zealots. Many, in fact, do not agree with the teacher unions on a great many things.

There is not very much information available about the opinion of teachers on politics and public policy issues. There are, however, several indications of the nature and depth of these differences of opinion.

In the late 1970s the National Education Association did an annual survey of the opinion of its members. The reports issued by the NEA on these surveys did not include the hard data and were worded very carefully. Even at that they raised quite a few questions about why the NEA was taking the positions it did on candidates and issues.

In 1982, I received - over the transom -- a copy of the hard data on two NEA surveys of the opinion of its members conducted in 1980 before and after the election of Ronald Reagan. The results were very revealing.

For example, the NEA found that as many of its members voted for Ronald Reagan (44%) as did for Jimmy Carter (44%); that more NEA members identified themselves as conservatives (26.7%) than liberals (20.8%); that fewer NEA members "trust" (25.2%) than "not trust" (42.8%) the AFL-CIO and that, while a majority (57.3%) of NEA members "trust" the NEA, a substantial minority (28.7%) did "not trust" it.

I do not know if these surveys are still conducted. If they are, I suspect that the reports on the results are very closely held. I have not seen one in many years.

In 1985, the National Council for Better Education commissioned a survey on teacher opinion, the results of which were published in the Dolan report. The results of this survey tended to confirm the data from the NEA's own survey.

The fact that in several states where teachers cannot be forced to support the NEA as a condition of employment there are large viable alternative organizations challenging the NEA, is another indication that the NEA does not enjoy the support of at least a substantial minority of teachers. These alternative organizations, by the way, are a growing phenomenon so much so that at its 1993 National Convention the NEA revealed a plan to attack them.

How Much Should Agency Fees Be?

The NEA's dues are constant in all areas of the country. In the 1994-1995 school year they are $102 whether you teach in Connecticut or Mississippi.

The dues of NEA state affiliates vary widely from $99 in North Carolina to $450 in Alaska.

There is a chart at the back of this paper which provides information about NEA chargeable percentages and state affiliate dues and chargeable percentages. This chart does not include the amount of local union dues because the amounts differ greatly. It does indicate, where available, a percent of chargeable local dues primarily for the purpose of indicating the states in which local union presumption is still in effect and where it is not. It must be noted that even in the states where local union presumption, which is discussed below, is not valid, some of the larger locals are auditing their books in order to collect a percent of the dues.

It should also be noted that in a few states the NEA is charging a separate dues structure for UNISERV Districts which is not included in the national, state or local dues amounts. In Wisconsin, for example, a UNISERV District dues assessment is charged and the union contends that the amount chargeable to nonmember/fee payers is 90 percent.

Because of these variations, which could not be incorporated in a chart of this nature, the amount of dues actually paid by teachers in some states may be as much as $250 more than the combined national and state dues and the difference in dues and fees may be substantially more than indicated.

This is all background for addressing the question of teacher union agency fees and how they might be used to indicate to teachers who are not already union sympathizers that a board member had an active interest in protecting their rights concerning the determination of the amount of this fee.

There are several factors which must be considered.

First is the question of "local union presumption," the practice of assessing local dues at the same percentage as state dues on the assumption that the local spends at least as high a percentage of its dues on representation as the state.

Local Union Presumption Is Clearly Not Legal!

In Hudson, the Court said that all union expenditures had to be audited and did not allow presumption of AFT fees based on an audit of local union fees.

In Lehnert, the trial court refused to allow local union presumption.

Two cases challenging presumption have been brought to the U.S. Court of Appeals for the Sixth Circuit, one from Michigan and the other from Ohio.

The best example of this comes from the Sixth Circuit's opinion in Lowary v. Lexington Local Board of Education in 1990. In this decision the court ruled that,

The most frequently cited rationale in favor of upholding the local union presumption stems from language in Abood in which the Supreme Court noted that [absolute precision in the calculation of [the fair share fee] is not.. .to be expected or required." Defendants argue that because the state union spends a greater percentage on nonchargeable expenditures than do the local associations, any error in the precision of the presumption actually operates in favor of the nonmember payors. As the District Court noted, however, the defendants failed to provide any empirical evidence which would support the underlying premise of the local union presumption - that the state union spends a greater percentage on nonchargeable expenditures than the local unions.
We agree with the reasoning of the court in Lehnert v. Ferris Faculty Association --MEA -- NEA, that such a local union presum p tion is unconstitutional under Hudson and Tierney. Specifically, the court rejected the argument that the local union presumption is constitutional merely because it is rebuttable upon an objection to the impartial decision maker. Holding the presumption to be unconstitutional, the court noted that "the use of the local presumption increases the risk that the reduced fee collection from the objector would be in excess of what is appropriate." The presumption "impermissibly shifts the burden of persuasion in the arbitration. 'The non-member's burden is simply to make his objection known.' The Sixth Circuit has stated that "the burden of showing entitlement to those funds remains with the union, even during arbitration. (Citations omitted.)

In both Ohio and Michigan, where these decisions are in effect, the local unions charge nothing rather than audit local union finances in order to be able to provide fee payers with the information required by the court in Hudson.

In many states none of the local figures are audited. I have been informed that in some states the state affiliate provides the local a form to fill out and the local just fills in the blanks.

It is likely that, if these figures were audited, the amount charged would be more than the presumed amount. That does not matter. The issue is whether the figures are correct and they clearly are not. As was pointed out above, the union may decide to not assess dues rather than have the local's expenditures audited.

Yet, some states are openly using the local union presumption as the basis of determining the amount to be paid by agency fee payers. Here is an example of this from a letter sent to fee payers by the California Teachers Association.

If you do not receive, concurrent with this letter, a contrary notification from the local CTA chapter, your chapter will be adopting CTA's chargeable agency fee figure as its own for 1994-95. This is based on the presumption that the local's percentage of expenditures for representational purposes is at least as great, if not much greater, than the corresponding CTA percentage.

It should not surprise you that the California Public Employee Relations Board has approved the concept of local union presumption but, just as is the case in the question of indemnification where the Board has ruled that indemnification is not an unfair labor practice, this has nothing at all to do with what is challengeable in the federal courts.

The unions may want to tell you that other U.S. District Courts have approved local union presumption. In fact, in these cases, where presumption has existed, it has not been one of the issues brought to the court for decision and no other U.S. Court of Appeals has approved local union presumption.

It is safe, at least for the time and until proven otherwise, to assume that local union presumption would not meet Constitutional muster, if it were presented to another U.S. Court of Appeals, even in Circuits like the Ninth, which notoriously bends over backwards to accommodate union concerns in this area.

The second issue is t he way the NEA determines the percent it charges. It is difficult to determine just how the NEA decides the amount of dues to be charged to fee payers.

In the period before the Hudson decision almost every public sector union, including the NEA and its state affiliates, contended that the chargeable amount was about 95 percent of dues and made little or no distinction between local, state and national assessments. I have been informed that the NEA's method of making this determination has changed several times since theHudson decision.

At one point they apparently decided to apply one single percentage in every state in the union and based that percent on the least it could justify in any of the states.

It seems as if they then realized that applying this least amount figure in all the states was costing them too much money and decided to make the determination on a state by state basis, even though they had previously argued in Court that this was impossible to accomplish.

To the best of my knowledge, the NEA's figures are now based on figures they obtain from the states, and because of delays in processing the information, changes in the NEA's percentage may lag a year or two behind changes in the state's percentage.

For example, the NEA's percentage of chargeable expenses in 1994-95 will be based on figures on chargeable expenses provided to them by their state affiliate for 1993-94 or even for 1992-93. As a
result of this method, there are differences in the percentage of dues charged by the NEA in different states.

Here are a few examples of the NEA's chargeable percentage for the 1994-95 school year. 
 

Washington 65.00%
Hawaii 77.58%
New Jersey 85.00%

There are even greater differences in the percentages charged by the state affiliates, and because state dues vary widely these differences are both in percentages and absolute amounts.

Here are some examples of state affiliate dues percentages and amounts for the 1994-95 school year. 

Percent of State Dues Amount of State Dues Actual Amount Agency Fee
Wisconsin 50.00% $205 $102.50
California 65.90% $376 $247.78
Alaska 78.40% $463 $362.99
Pennsylvania 82.00% $313 $256.66
New York 92.76% $239 $221.70


The above figures are the amounts which unions present in their Hudson notices. Where there have been challenges and litigation these amounts have been driven considerably lower. But because of the nature of the legal system the lower amounts achieved by teachers who object the fee are not applicable to those who do not make a challenge of the same amount in the same state during the same time frame.

Where significant challenges have lowered the chargeable percentage in one year the unions have tended to lower the amount assessed by the union in future years.

The point of these comparisons is to show that the percent of dues charged is not set in clay and that the union's internal methods of determining what is chargeable and what is not is subject to change.

There is considerable fluctuation and a clear downward trend in the percentage of union dues assessed as agency fees. In California, for example, in 1990-91 the CTA's chargeable percent of dues was 79.20, in 1992-93 it was 73.00 and in 1994-95 it is just 65.90. This is true not just in California but in the other states and not just in education unionism but in other areas of the public sector.

Since the trend is downward and the NEA's percentage seems to be based on the CTA's percentage from previous years the amount assessed will always be higher than it ought to be.

Assuming that the amount of the difference between full union dues and chargeable fees continues to increase, it will provide greater incentive for more teachers to avail themselves of their rights to become fee payers. The unions, in order to maintain their level of non representation activities will be forced to increase union dues. This will further increase the difference between dues and fees and increase the financial incentive to become a fee payer. It is difficult to predict when this downward spiral might bottom out, but it has the potential to decimate the union.

What Can A School Board Member Do?

It is not safe to presume that even though the nonmember teachers receive a notice about their rights from the union that they understand these rights.

It is important to realize that any nonmember who does not request that the agency fee be reduced by the nonchargeable amount pays the full amount of union dues.

There is no doubt that teachers who are not union members are under a certain amount of peer group pressure not to request the reduction. In the absence of any indication from the school board that there is a question about this, they might assume that the board endorses the payment of the full amount. A notice about their rights from the school board would help to dispel this impression.

Clearly, board members should stay abreast of developments in other states and in the federal courts on this issue. Keeping teachers well informed about the percentages and amounts charged by the NEA and its state affiliates in other states may help to raise questions in the minds of the nonunion teachers about the accuracy and legitimacy of the fees they are being charged.

One approach would be for the board member to propose that a notice of employee rights in regard to union membership and agency fees be posted in each school building.

This is akin to the notices President Bush required federal contractors, who had union shop agreements, to post in the work place informing employees of their right not to be a member of a union and to pay a reduced fee.

It must be recognized that in addition to peer pressure the unions have erected obstacles to teachers resigning their union membership. A typical obstacle is a very narrow window of time during which the union will accept resignations, either at the end of a contract or at the end of a school year. Such obstacles are unconstitutional in private employment but the courts have not yet confronted the same situation in public employment.

Some unions have simply chosen to ignore resignation unless they are done properly. "Properly" may be determined by contract language or the unions by-laws.

It is important that when a teacher decides to resign his or her union membership they do so in the proper way. The National Right to Work Legal Defense Foundation has an excellent little pamphlet called "Teachers: It's Your Money!" which explains teacher's legal rights in terms of resigning union membership and gives specific instructions for resignation letters. This can be obtained by calling 1-800-336-3600.

It is also not safe to presume that school board members fully understand the rights of teachers regarding union membership and the payment of union agency shop fees. I have spoken with some board members who were astounded to learn that any teachers were not union members. When the union told them that it represented the teachers, they assumed that all teachers supported the union.

School board members should make sure that their fellow members are aware of this issue and urge their state and national associations to develop educational programs to keep school board members abreast of developments.

The most important thing to do is to raise constant objections. The law and the process are loaded in favor of the presumption of the legitimacy of the union fees. In California particularly, the arbitrators and the State Board have gone out of their way to defend the union's interests in these matters.

Most teachers who are fighting for their rights against the union and state bureaucracy have good reason to feel very lonely and isolated. The more a school board member questions these practices the more teachers will feel encouraged to pursue the matter as well.

It is reasonable for any school board member to constantly question whether this is being properly done and to not presume the validity of any assurance from the union or the state.

A good example of this is the question of local union presumption addressed above.

There is no doubt that it is common practice and there is little doubt that it is illegal.

Questioning and objecting to this practice will force a reexamination of it.

In the final analysis there is no pat answer as to what a board member ought to do or might do. It is important to try any approach which might work and then share information about successes and failures with board members in other districts who share this concern.

Conclusion:

It is clear from the history of public sector agency fees that the more pressure that is put on the unions to document their expenditures and to prove their chargeability, the lower their percentages become.

Therefore, a school board member, by asserting his or her legitimate interest in these matters and making them an issue, will help in creating this pressure for the downward trend in assessments.

The lower the percent chargeable, the more likely it is that teachers who are not union sympathizers will make the decision to become a nonmember/fee payer rather than a full fledged union member.

Reducing teacher union power is a key component to restoring quality to public education in America Encouraging teachers to pay a fee rather than union dues and exerting constant pressure to insure that the fee is just as low as possible will reduce the financial resources on which teacher union power is based. 

For chart showing Chargeable Union Agency Shop Fees for Teachers, 1994-1995, click here.

David Denholm is the president of the Public Service Research Foundation, a research and education foundation concerned about the impact of unionism in government on government and union influence on public policy. Other papers by Mr. Denholm include:

Beyond Public Sector Unionism: A Better Way

Confronting Teacher Union Power

The Impact of Unionism on the Quality of Public Education

Teacher Union Collective Bargaining and Education Reform

To request copies or more information, please contact: David Denholm, President at info@psrf.org, or send a written request to:

Public Service Research Foundation
320-D Maple Avenue East
Vienna, Virginia 22180
Phone (703) 242-3575
Fax (703) 242-3579