The United States Supreme Court recently ruled in Janus v. AFSCME that government employees cannot be forced to pay fees to labor unions that they choose not to join. In response, the Bristol-Warren Education Association (BWEA) — the local of the National Education Association of Rhode Island (NEARI) representing teachers in that regional school district — has sent out a letter to teachers claiming that they will not only lose some benefits of teacher membership if they don’t remain members, but also that they could face additional costs if they seek to assert their rights under the contract.
The language of the teachers’ contract, however, belies the claims of the letter and could, itself, indicate that the letter is a contract violation. Government employees receiving such letters from their labor unions should use the resources available to them through MyPayMySayRI.com to learn about their rights and, if they choose, to exercise their right to leave the union.
The broadest way in which the BWEA’s letter is arguably deceptive comes with the contract’s Article 1, Section F, which bars both the school district and the union from “discrimination, interference, restraint, or coercion, against any member of the Association, or any individual not a member of the Association either on the account of such membership or on the account of the rights of members of the teaching staff to refrain from membership.” Section G covers the more-usual understanding of discrimination based on identity groups, meaning that Section F is specifically about membership in the union.
As such, the union cannot treat these teachers differently when it comes to membership rights under the contract. One membership right that non-members should retain is voting on contracts, which the letter states that non-members cannot do. Another membership right is access to services from the union without having to pay additional fees.
This reading is reinforced by the fact that the contract requires non-member teachers to pay “a representative benefit fee” that is equal to dues. Additionally, Article 3, Section D, allows these fees in order to cover the expenses of “negotiation and administration” of the agreement (emphasis added). The most straightforward interpretation is that the people who drafted and approved the contract understood that non-member teachers would receive all of the benefits that members receive for the same amount of money. The fact that the Supreme Court has declared these fees to be unconstitutional does not mean that the union can unilaterally rebuild them à la carte by, for example, charging teachers for representation in grievance proceedings, which the BWEA’s letter claims it will do.
It is true that Janus allows that “individual nonmembers could be required to pay for” grievance representation (page 17). However, this contract does not allow such a fee. The contract states only that “all grievances at Level Two and above will be handled by the Association.” This isn’t a restriction on the teachers. Rather, in any case in which a teacher can’t work out his or her disagreement with the school administration on his or her own, the union is obligated to represent the teacher.
This obligation is also in the union’s interests. As the Supreme Court notes, “unions do not undertake [grievance representation] solely for the benefit of nonmembers” (page 16). Whatever decision arises from a grievance proceeding will affect all of a union’s members. For this reason, the court points out, Illinois explicitly allows “a public-sector union the right to send a representative to such proceedings even if the employee declines union representation.”
In Bristol-Warren, the contract is the gateway between the union and those teachers who are not members of the union, and there is no mention of a fee for grievance services. The union can only impose restrictions on non-member teachers through the school administration. As it stands until this contract expires on August 31, 2020, the union must represent all teachers, and it cannot collect additional fees. State law also appears to forbid the union from simply refusing to allow teachers access to the grievance process.
In short, the BWEA will have to negotiate any new fees for non-members into its next contract, which would appropriately include a thorough reworking and articulation of non-members’ rights and relationship with the union. If the Bristol-Warren school committee is doing its duty representing taxpayers and students, it should require concessions in other areas in order to give the union these new powers. At the very least, it should insist that non-member teachers have a right to vote on their own contracts and can access a sick-leave bank into which they are obligated to pay.
(That non-member teachers cannot use the sick leave bank is another specious claim of the BWEA’s letter. Even if local courts determined that the union is correctly interpreting the contract, the Supreme Court repeatedly states in Janus that government agencies cannot conspire with labor unions to discriminate against non-members.)
To the consternation of parents, taxpayers, and education reformers alike, Rhode Island’s teacher unions have made the sanctity of contracts the cornerstone of their defenses. When they aren’t getting their way, for instance, they sometimes “work to rule,” which means they’ll provide no services to students that are not explicitly described in the contract. The fact that the Supreme Court has found one of their sources of revenue to be unconstitutional does not mean that unions all of a sudden get to impose new (discriminatory) restrictions that also aren’t in the contract.