DENVER — Five Colorado school districts are being warned by the Public Trust Institute (PTI), a non-profit public interest law firm, to make changes to parts of their collective bargaining agreements (CBA) with teachers’ unions that violate a 2018 U.S. Supreme Court ruling.
In a May 24 press release PTI says it “found the problematic contract provisions in union agreements in the following school districts: Adams 12 Five Star, Alamosa, Thompson, Pueblo 60 (Pueblo City Schools) and Pueblo 70 (Pueblo County Schools). PTI uncovered provisions at five Colorado school districts that automatically enroll school employees in the unions and/or withhold union dues or fees from their paychecks despite employees refusing to join the union or resigning from the union.”
The release continues that leaving the offending provisions in a CBA “opens the door to expensive – and likely successful – litigation against the districts.”
The Janus case
Prior to the 2018 Supreme Court ruling, Janus V. American Federation Of State, County, And Municipal Employees, unions were allowed to collect “agency fees” from non-union workers under a 1977 Supreme Court ruling from Illinois that held because non-union workers benefit as a result of collective bargaining, they should be required to pay their fair share of the costs of the bargaining process.
But in 2018 the Supreme Court overturned its previous ruling.
Justice Samuel Alito, writing for the majority, said, “Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
Public Trust Institute Director Dan Burrows, in an interview with Complete Colorado Wednesday, says having the offending language in the CBA, even if it’s not enforced and no agency fees are subtracted from the non-union employee’s paycheck, is both unconstitutional and “inherently coercive.”
“The courts refer to it as chilling people’s free speech,” said Burrows. “If people see the rule, people are inclined to just presume that the rule is enforced. So, when these teachers get their handbook and they see the CBA they say ‘well if I don’t join, I have to essentially pay dues anyway, so I might as well join right now.’ A teacher is not an attorney. They don’t spend time reading Supreme Court case law to know whether that’s allowed or not.”
And it’s not, which begs the question of why these five districts, out of the hundreds of school districts in Colorado, have failed or refused to amend their CBAs in the years since the Janus ruling.
Alamosa out of compliance
“To keep representation fee language in a school district collective bargaining agreement is not only sloppy legal work but is disrespectful to district employees who have chosen not to join the union,” said Pam Benigno, director of the Independence Institute’s Education Policy Center in a statement to Complete Colorado. “In Alamosa, neither the school district nor the union informed employees that they no longer were required to submit the annual ‘representation fee drop form’ to avoid the payroll deduction of nearly $850. In 2018 and 2019, both the district and union continued accepting the forms. In 2020, non-union employees remained in the dark until I informed them of the Janus ruling.”
The Alamosa School District CBA says that those who are “not a regular member of the Association (union)” must complete a “revocation form available through the Association representatives between September 10 and September 20.”
In the past, the handful of school districts with such provisions in their CBAs, including the Alamosa district, strictly enforced this ten-day window, even if missing the deadline was caused by unforeseen circumstances, including medical emergencies.
The result was that non-union members who didn’t want to financially support the union were often stuck paying the fees until the next opt-out window if they miss the deadline by even a day.
“I’m not a member, but if 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, which is part of the Mackinac Center, a free market think tank in Michigan. “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.”
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