ALAMOSA, COLORADO — The Alamosa Education Association collective bargaining agreement with Alamosa School District RE-11J is being criticized as running afoul of a U.S. Supreme Court ruling last year saying unions cannot automatically take money out of the paychecks of non-union members.
The Alamosa agreement says that the District must withhold union “dues and fees” from all teachers.
It further states that union members must submit a written request that the District deduct annual union dues but does not provide any clear definition of who is and is not a union member. It appears that submitting the form authorizing deduction makes one a union member, but this doesn’t clearly address the question of those teachers who choose not to make the request. The assumption seems to be that merely being employed in the district imposes a requirement to affirmatively opt out of union fee assessments.
The agreement says that those who are “not a regular member of the Association” must complete a “revocation form available through the Association representatives between September 10 and September 20.”
In the past, some Colorado school districts with collective bargaining agreements strictly enforced this ten-day window even if missing the deadline was caused by unforeseen circumstances, including medical emergencies. The result is that non-union members who don’t want to financially support the union can be stuck paying until the next opt-out window if they miss the deadline by even a day.
This seems to remain the case with the current agreement between the Alamosa Education Association and the District.
The U.S. Supreme Court, however, says it is unconstitutional to deduct union fees from a non-member’s paycheck without affirmative consent.
In Janus v. American Federation of State, County, and Municipal Employees, decided June 27, 2018, the high court reviewed the common practice of public employee unions receiving money directly from non-union employee paychecks under a theory known as “agency fees” or “fair share agreements.”
Justice Samuel Alito, who authored the 5-4 decision, wrote, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
“I’m not a member but I don’t fill out my paperwork for Alamosa for the year. They’re going to charge me the equivalent of dues where under the Supreme Court case law I can pay zero,” said Patrick Wright, Director of the Mackinac Center Legal Foundation. “I think Alamosa has flipped it. They have put an annual requirement on non-members to get out of the fees, and I believe it’s unconstitutional.”
The Mackinac Center Legal Foundation, which is part of the Mackinac Center, a free market think tank in Michigan, provides “free legal care to people where a lawsuit will enhance liberty and freedom,” said Wright.
Prior to Janus the Supreme Court said that state laws requiring non-union members who benefit from collective bargaining agreements negotiated by unions should pay something towards the efforts of the unions were constitutional.
In 1977 the Supreme Court ruled unanimously that public employee unions are constitutional and that non-union members can be required to pay “agency fees,” a percentage of full union dues to reimburse the union for “collective bargaining, contract administration, and grievance adjustment purposes.”
That case, Abood v. Detroit Board of Education, allowed public sector unions to assess such fees nationwide, until last year.
Explicitly overturning Abood in the Janus ruling, Justice Alito wrote, “Abood was wrongly decided and is now overruled” because taking money directly out of employees paychecks without express consent to do so “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
Wright told Complete Colorado in an interview Saturday that constitutionally, non-union public employees in what are called “bargaining units,” in this case a school district where a majority of teachers have voted to create a union, are bound by union collective bargaining agreements and cannot negotiate their own employment contracts.
There is a split in the U.S. Circuit Courts on the issue of whether non-members can opt out once and not have the fees assessed in the future, or whether they must opt out every single year. In Alamosa’s case, it’s every year during the restrictive 10-day window in September.
Asked if this Circuit Court split sets the issue up for Supreme Court review Wright said, “No. We haven’t had anybody bold enough to say, ‘you have to sign out of the union every single year.’ That’s what makes Alamosa so interesting. They appear to be the first school district that’s saying, ‘The Supreme Court didn’t say that we couldn’t make you opt out every single year, so we’re going to make you do that.’”
“The individual doesn’t have a say in it, they only get a say through their union,” said Wright. “What’s left for people who aren’t members who think that this is illegal is that they have to file a lawsuit.”