Many school board members and other citizens mistakenly believe that union membership is required for all teachers working under a collective bargaining agreement. The truth is that there is no statute that requires teachers to either become union members or pay union dues in the absence of a contractual agreement between a school district and union called the "union security clause."
The union security clause, if included in a collective bargaining agreement, is what forces school employees to pay union dues. School boards who agree to such a clause become union financial enforcers, often by agreeing to fire any employee who fails to pay dues money. This arrangement allows the two major teacher unions, the NEA/MEA and the AFT/MFT, to take over $800 million per year from the country's teachers without their voluntary consent.77
Union security clauses undermine union accountability by forcing teachers to financially support the union whether it has earned their support or not. Employees working under a collective bargaining agreement with a union security clause fit into one of two categories: full union members or "agency fee payers." Agency fee payers are those employees who decline to join the union but are required to pay a "service fee" (or "agency shop fee") to the union for the costs of collective bargaining representation services.
The statute governing union security agreements expressly affirms that dues or service fee payment is not a mandatory condition of employment, but it does not preclude school boards from negotiating a dues or service fee provision if they choose.78 In practice, most school districts require their employees to pay dues or a service fee and provide that the money be involuntarily deducted from the paycheck of any employee who fails to pay.
Dues and service fees in most districts presently average two percent of the negotiated base minimum of each teacher's salary: A teacher with a $30,000 base salary must therefore pay $600 annually in local, state, and national union affiliate dues.
Compulsory unionism for public school employees brought about by union security clauses has had profoundly negative effects on school districts. It has lowered teacher morale and professionalism79 which in turn has hurt student achievement in the classroom. A 1996 study conducted by Harvard professor Caroline Hoxby found that, "Teachers unions increase school inputs but reduce productivity sufficiently to have a negative overall effect on student performance.80" Hoxby also discovered that in addition to having lower student achievement, unionized districts also suffer from higher student dropout rates.81
Currently, every teacher contract in Michigan includes a union security clause whereby the school district agrees to act as the collection agent for union dues. Most districts additionally act as union recordkeepers by transmitting payments to the local union and often separately to state and national affiliates.82 Standard language in over 500 current contracts further provides that
In the event there is a change in the status of the law, so that mandatory deduction from wages pursuant to the paragraph above is prohibited, the employer, at the request of the Association, shall terminate employment of a bargaining unit member that refuses to authorize deduction of the representation benefit fee…. The parties expressly agree that failure of any bargaining unit member to comply with the provisions of this Article is just cause for discharge from employment.
In other words, even if involuntary dues deduction is prohibited by a change in law after the contract is bargained, the school board still agrees to fire any employees failing to pay union dues.
However, dues-paying teachers have constitutionally protected rights to
pay only those costs directly attributable to collective bargaining and negotiations which provide a direct benefit to them;83
object to the amount of agency shop or service fee required; and
have that amount reviewed by an impartial decision maker.84
School districts have an independent responsibility to inform their employees about their rights, but a significant number of current contracts do not mention these rights. More than twenty collective bargaining agreements do not even inform teachers of their right to refrain from becoming full dues-paying union members by choosing instead to pay only an agency shop or service fee.
With few exceptions, those contracts that do advise teachers of the right to object limit teachers' means of protecting those rights. Over 150 collective bargaining agreements contain a standard notification clause as follows:
Pursuant to Chicago Teachers' Union v Hudson, 106 S. Ct. 1066 (1986), the Association has established a "Policy Regarding Objections to Political-Ideological Expenditures-Administrative Procedures." Those administrative procedures (including the timetable for payment) apply only to non-Association bargaining unit members. The remedies set forth in those procedures shall be exclusive and, unless and until such procedures (including any administrative or judicial review thereof) shall have been availed of and exhausted, no dispute, claim, or complaint by an objecting bargaining unit member concerning the application and interpretation of this article shall be subject to the grievance procedure set forth in this Agreement.
This notification clause requires agency fee payers with dues disputes to exhaust internal union-controlled procedures-procedures established by the very union they are opposing-before the matter can be heard in other administrative or judicial forums. Only a small number of the collective bargaining agreements reviewed even provide the terms of the "Policy Regarding Objections to Political-Ideological Expenditures."
The May 1998 U. S. Supreme Court decision, Air Line Pilots Association v Miller85, has established that nonunion agency fee payers have the right to settle their dues disputes in the forum of their choosing, regardless of whether or not they have exhausted the internal union-controlled procedures. The Court held that when a union attempts to bind an agency fee payer to a dispute procedure not of his choosing, it frustrates his ability to exercise his constitutional rights and he is therefore free to pursue an impartial decision maker.
The Miller case may have legal implications concerning the validity of teacher contracts that compel exhaustion of a union-controlled dues dispute process. Please see Section 2 on page 42 for a discussion of the Miller decision. Unions also frequently specify narrow time periods during which employees may resign their membership. If an employee were to challenge this practice in court, it would likely be ruled unconstitutional.
Some current collective bargaining agreements mandate that the amount of the service fee paid by agency fee payers be the same as full membership dues. This is in direct violation of U. S. Supreme Court decisions which provide that objecting employees can be forced to pay only those charges directly attributable to collective bargaining.
Unions often negotiate contract provisions that require new (probationary) employees to immediately apply for full union membership-usually within thirty days of their start date-despite the fact that probationary employees receive only limited representation protection. The agreement in at least one district requires this application to be made within the first week of employment. No contracts, however, specify that the application is required at the time the employee ceases to be on probation.
Unions also frequently specify narrow time periods during which employees may resign their membership in favor of becoming agency shop or service fee payers. Unions may also limit the times when they will accept payment of service fees. If an employee were to challenge these practices in court, they would likely be ruled unconstitutional.
Almost every collective bargaining agreement stipulates that dues will be automatically deducted from employees' paychecks from year to year, while those who object to this deduction must renew their objection annually. These provisions have the effect of limiting the number of objectors by making the act of objecting more burdensome.
Although PA 117 of 1994 requires unions to obtain annual consent from individual employees for the deduction of political action committee contributions, unions are unwilling to allow members that same latitude of choice over the dues themselves. Teachers must expressly agree each year to every other payroll deduction, but they are denied that right when it comes to union dues. Conversely, employees must annually notify the union in writing when they wish to be agency shop or service fee payers.
1. School boards should negotiate union security clauses out of their collective bargaining agreements.
The coercive and unfair nature of such clauses negatively affects school employees' morale, productivity, and professionalism and, ultimately, student achievement. Eliminating them would ameliorate these problems and return more money to the paychecks of hardworking teachers. Unions that excel in representing their members will have no difficulty attracting and keeping the voluntary support of those members.
Teachers themselves should explore all their options for representation. Members of unaffiliated independent teacher unions pay dues as low as $40 per year while enjoying the same rates of pay and benefits as those who are required to support state and national affiliates through higher fees. These independent teacher unions typically have the resources to provide the same membership services as the affiliated unions, including liability, legal representation, and professional negotiating.
2. If the school board chooses not to eliminate the union security clause, it should change the agreement to reflect the board's refusal to serve as union collection agent and recordkeeper.
The school funds spent on these functions could be better directed toward education. Districts themselves can also be held liable under the Weaver v University of Cincinnati court decision (discussed in further detail in Section 2 below) for the amount of any dues illegally collected from employees. Some districts' contracts wisely provide that the school board will not be a party to whatever collection action the union may pursue to collect either dues or service fees.86
School boards should uphold the rights of employees and protect themselves from liability by inserting language that protects from termination teachers who fail to pay union fees. Language that accomplishes this is found in a few existing agreements and specifies that "the payment of the service fee is a condition of employment: provided, that the non-payment of the service fee shall not cause the discharge of any teacher.87"
3. If the school board chooses not to eliminate the union security clause, it should ensure that any negotiated contract language affords the maximum constitutional protections to agency fee payers, including not binding them to an unfair, union-dominated dues dispute procedure.
Agency fee payers (nonunion employees) who object to the amount of the service fee they are compelled to pay are entitled to have their objections heard before an impartial decision maker. School boards should protect the rights of agency fee payers by inserting language into the appropriate area of the union security clause as follows:
Pursuant to Chicago Teachers' Union v Hudson, 106 S. Ct. 1066 (1986), public employees who object to the payment of union dues have a right to pay for only direct collective bargaining costs through the payment of an agency or service fee. Objecting fee payers have the right to have their objections heard by an impartial decision maker and to have their fees held in escrow until such dispute is resolved.
The Hudson decision is discussed in Section 2.
4. If the school board chooses not to eliminate the union security clause, it should avoid bargaining contract provisions that needlessly limit or restrict employees' freedom to resign from the union.
The "just cause" standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time-consuming process for districts that wish to remove ineffective, unproductive, or even criminal teachers from the classroom. Provisions that restrict employee resignation from the union to a limited time period, such as one month out of the year, are constitutionally suspect and susceptible to legal challenge. The MEA represents to its membership that withdrawal of membership and designation for payment of the agency fee can only occur during a narrow window period annually each August. This restriction has not been found to be constitutionally valid.
5. If the school board chooses not to eliminate the union security clause, it should avoid negotiating any language that requires the service fee paid by objecting nonunion employees to be the same as the amount of full union dues.
Such requirements are in direct violation of U. S. Supreme Court decisions that hold that agency fee payers who object can be compelled to pay only those charges directly attributable to collective bargaining representation.