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By: Richard Hansen
Back in 1976, during his first term as governor, the then 38-year-old Jerry Brown signed the Rodda Act into law, which granted K-12 and community college faculty rights similar to those under the National Labor Relations Act (NLRA) to bargain collectively with district administrators over their members’ compensation and working conditions. The present law is more commonly known as the Educational Employment Relations Act (EERA). Similar legislation followed for state workers and higher education faculty and staff. Municipal, county, and other local public employees were already covered under legislation passed in 1968. Today, all of these jurisdictions are administered under the Public Employee Relations Board (PERB).
Private sector labor unions were already in decline in the late 1970s with many large U.S. industrial enterprises closing or moving overseas and looking for ways to dodge responsibilities to their laid off workers, especially on negotiated pension agreements. In 1977, it was already clear that the public sector might be the last bastion of unionized labor in the United States, leading to a rightward tilt in national politics and mad rush toward all facets of deregulation. Without a robust unionized workforce, the private sector largely abandoned defined benefit systems with public pensions holding on to more generous benefits, but increasingly under attack by the forces of privatization.
Prior to EERA, bargaining had been conducted informally, usually under loose “meet and confer” structures involving representatives of the district administration and faculty committees formed under the auspices of the local academic senate. With passage of EERA, community college faculty had to decide how to organize a labor group divided into so many separate districts, each operating under its own elected trustee board.
Embarking on full-fledged union representation, faculty committees were formed to investigate options. Many turned to the leadership of national teacher organizations, primarily representing K-12, specifically the National Education Association and the American Federation of Teachers, but in a number of districts, faculty decided to go it alone as independent local unions. All of these options have rights under EERA reserved for recognized exclusive collective bargaining agents. In the few cases in which faculty decided to continue using an informal meet and confer process, the legal protection of EERA would not apply.
Today, every California Community College district has a PERB-recognized collective bargaining agent for its faculty. Local situations vary with respect to the exclusive agent, its affiliation, and whether full- and part-time, or credit and noncredit, faculty are in the same or separate units. Beyond the local level, the community college faculty unions have played a prominent role in state policy, advocating not just for academic employees but for our students as well.
While key provisions of EERA on union membership and dues in Article 7 (organizational security) protect the financial viability of the bargaining agent, the courts have been asked to invalidate these as unconstitutional. The question is whether the Free Speech clause of the First (and by extension, Fourteenth) Amendments allow the unions to charge a required service or “agency” fee to non-members to support collective bargaining (which benefits everyone, regardless of membership status). The work considered “chargeable” to non-members includes negotiations on compensation and working conditions, resolution of faculty grievances, and advocacy in the interest of faculty. Political endorsements and contributions to political campaigns, while often part of the collective bargaining work, are excluded from chargeability.
These distinctions recognize that union members have voting rights over decisions on all activities, from compensation to political endorsements. Non-members may be denied the right to vote in the union’s decision-making process, and therefore be responsible for only the work the union does on their behalf. Under PERB rules, local unions must make an accounting to its non-members, offering a refund of their share expended for non-chargeable activities.
The recent legal challenges to agency fee borrow from the misleadingly labeled “right to work” states where employees are granted the “right” to the benefits of union representation without paying for them. In the recent case of Friedrichs v. CTA, the lower courts affirmed the constitutionality of agency fee. This was anticipated by the plaintiffs who were eager to argue before the U.S. Supreme Court. The unexpected passing of Justice Antonin Scalia left them with a four to four deadlock and the current law unchanged. With Justice Gorsuch in place on the Supreme Court, these “right to work” strategists are pursuing three new cases to the same end: Janus v. American Federation of State, County, and Municipal Employees (AFSCME); Bain v. CTA; and Yohn v. CTA. Court watchers predict one of these will be heard, likely Janus.
Such lawsuits are clearly aimed at undermining the financial stability of organized labor. In this regard, it is important to recall the Supreme Court’s ruling in Citizens United, which recognized both corporations and unions as “people” with political rights to spend their money as they wished in the spirit of “free speech.” While some facetiously claimed the ruling created a “level playing field,” corporate resources have always outweighed unions, and the present attack on agency fee will greatly exacerbate the imbalance, to say nothing about how individually wealthy corporate leaders might spend their own money. It is also critical to note that while union expenditures are subject to the vote of its members, the same is not true for corporations.
Since the attacks on agency fees have gone from the legislative to the judicial branch of government, the legislative response, by definition, is limited. One such response occurred this past June in SB 104, a “trailer bill” accompanying passage of the 2017-18 Budget Act. As approved, the measure allows unions to have mandatory access to new public employee orientations. While anti-labor politicians squawked about giving an “unfair advantage” to unions, both sides understood that these battles have just begun. The further along we proceed into the Trump Administration, and with the possible retirement of Justice Kennedy, this fight will surely intensify.
Richard Hansen is an emeritus math instructor at De Anza College and is a former president of the Bay Area Faculty Association and FACCC.
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