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SP 038 353

Lieberman, MyronAgency Fees: How Fair Are "Fair Share" Fees? EPI Series onTeacher Unions.Education Policy Inst., Washington, DC.ISBN-0-9669555-0-11999-00-0054p.; For related documents, see SP 038 354-55.Education Policy Institute, 4401-A Connecticut Avenue, NW,Box 294, Washington, DC 20008: Tel: 202-244-7535; Fax:202-244-7584; e-mail: sdchar@aol.com; Web site:http://www.educationpolicy.org ($6).Reports Descriptive (141)MF01/PC03 Plus Postage.Collective Bargaining; Elementary Secondary Education; LaborRelations; Public Education; *Teacher Associations; TeacherRights; Teachers; *Unions*Agency Fees; American Federation of Teachers; NationalEducation Association; *Union Dues

This booklet is the first in a series about teacher unionissues. It notes that agency fees raise profound issues in education, laborrelations, and public policy. Chapter 1 introduces the booklet, explainingthat it is helps clarify major agency fee issues and recommend appropriateaction. Chapter 2, NEA/AFT Revenues from Agency Fees, explains the dependenceof union revenues on agency fees. Chapter 3, rhe Case Against Agency Fees,explains that not every teacher benefits from union representation,discussing objections to agency fees. Chapter 4, Challenges to ExcessiveAgency Fees, investigates how unions allocate expenditures and how and whyexcessive agency fees are challenged. Chapter 5, Conclusions andRecommendations, presents negative conclusions about agency fees, explainingthat agency fees constitute taking money from employees for purposes they donot wish to support and activities that may be against their interests. Itdiscusses what teachers subject to agency fees should do, what school boardmembers and school administrators should do to help eliminate agency fees,and how state legislators can help. Three appendixes offer an agency feearticle taken from an existing school district contract; a New York stateteachers' union notice to all nonmembers (which shows how unions extractexcessive fees by misleading notices to teachers); and a local union letterto nonmembers that illustrates how they try to persuade them to becomemembers. (Contains 9 references and 14 endnotes.) (SM)

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Agency Fees:How Fair Are

"Fair Share" Fees?

Myron LiebermanPERMISSION TO REPRODUCE ANDDISSEMINATE THIS MATERIAL HAS

BEEN GRANTED BY

M L'oe-i-nmwo

TO THE EDUCATIONAL RESOURCESINFORMATION CENTER (ERIC)

1

U.S. DEPARTMENT OF EDUCATIONOffice of Educational Research and Improvement

EDUCATIONAL RESOURCES INFORMATIONCENTER (ERIC)

O This document has been reproduced asreceived from the person or organizationoriginating it.

O Minor changes have been made toimprove reproduction quality.

o Points of view or opinions stated in thisdocument do not necessarily representofficial OERI position or policy.

EPI Series on Teacher Unions(4_V')

BEST COPY AVMLABLE

Education Policy Institute4401-A Connecticut Ave., NW, Box 294Washington, D.C. 20008Tel: 202/244-7535, Fax: 202/244-7584Email: sdchar@aol.com

Copyright 0 1999 by the Education Policy Institute

All rights reserved. No part of this publication may be reproducedor transmitted in any form or by any means, electronic ormechanical, including photocopy, recording, or any informationstorage and retrieval system, without permission in writing from thepublisher.

The views expressed or implied in this publication should not beinterpreted as official positions of the Education Policy Institute.

Printed in the United States of America.

Myron Lieberman, ChairmanCharlene K. Haar, PresidentKaren E. Loss, Director, Design and Production

Price: $6.00

ISBN: 0-9669555-0-1

3

Agency Fees: How Fair Are"Fair Share" Fees?

Table of ContentsForeword 6Chapter 1

Introduction 7Chapter 2

NEA/AFT Revenues from Agency Fees 11

Chapter 3The Case Against Agency Fees 17

Chapter 4Challenges to Excessive Agency Fees 27

Chapter 5Conclusions and Recommendations 38

Appendix AAgency Fee Article 43

Appendix BNYSUT Notice to All Nonmembers 48

Appendix CLocal Union Letter to Nonmembers 50

Endnotes 52

References 53

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ForewordThis booklet is the first in the Education Policy Insti-

tute (EPI) series about teacher union issues. As is evidentfrom the content, agency fees raise some of the most pro-found issues in education, labor relations, and public policygenerally, and EPI was especially fortunate to have Dr. MyronLieberman serve as the author of the first publication in thisseries. A life member of the NEA and a former candidate forpresident of the AFT, Dr. Lieberman has negotiated hundredsof school district labor contracts in seven states. This wealthof experience on both sides of the table is reflected in hisanalysis of agency fee issues in American education. Al-though Dr. Lieberman's analysis is formulated in the contextof public education, I am confident that it will be just as use-ful in state and local public employment generally as it willbe in public education.

The Education Policy Institute gratefully acknowledgesthe support from the John M. Olin Foundation, Inc. and TheLynde and Harry Bradley Foundation for the EPI Series onTeacher Unions.

The Education Policy Institute will normally approverequests to publish and disseminate this publication in wholeor in part, provided appropriate credit is accorded the Edu-cation Policy Institute and Dr. Lieberman. Criticisms, sug-gestions, and inquiries about it (or any other EPI publica-tion) are welcome and may be addressed to either Dr.Lieberman or myself at:

Education Policy Institute4401-A Connecticut Ave., NW, Box 294Washington, D.C. 20008Tel: 202/244-7535Fax: 202/244-7584Email: lieberman@educationpolicy.orgEmail: sdchar@aol.com

5

Charlene K. HaarPresident

EP 11 Senies: Rgencg Fees

Ehapiter 11

11Mrincluc1omn

In this report, I try to clarify the major agency fee is-sues and recommend courses of action deemed appropriatein the light of these clarifications. Although the discussionis applicable to state and local public employment generally,it is addressed to educators and formulated in terms of edu-cational employment relations.

Agency fees are the amounts that nonmembers of aunion must pay to the unions for representation services.Nonpayment ordinarily results in dismissal from employ-ment. Inasmuch as nonmembers must pay the fees or losetheir jobs, agency fees raise basic issues about individualrights and how they relate to group rights in the workplace.Agency fees also raise issues concerning the role ofemployers, who often play a key role in whetheragency fees are required, the amount of the fee, howthe fees are paid, and what procedures are availableto challenge the amount of the fee.

Agency fee issues arise in the context of col-lective bargaining by teacher unions. Such bargain-ing and the legal status of agency fees are regulatedby the states as follows:o States that have enacted collective bargaining statutes

and require payment of agency fees by state law:Hawaii, Minnesota, and New York.

o States that have enacted bargaining statutes that allowteacher unions to negotiate agency fees: Alaska, Califor-nia, Connecticut, Delaware, Illinois, Maryland (only inBaltimore and four counties), Massachusetts, Michigan,Montana, New Jersey, Ohio, Oregon, Pennsylvania,Rhode Island, Washington, Wisconsin, and the Districtof Columbia.

o States that have enacted bargaining statutes, but prohibitagency fees, at least in public education: Florida, Idaho,Indiana, Iowa, Kansas, Maine, Nebraska, Nevada, NewHampshire, New Mexico (dues deduction a mandatorysubject of bargaining), North Dakota, Oklahoma, South

Agency fees arethe amounts thatnonmembers of aunion must pay tothe unions forrepresentationservices.

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IEIPO Seo Hgencg Fees

Dakota, Tennessee, and Vermont.States that allow collective bargaining as a school boardoption, but prohibit agency fees: Alabama, Arkansas,Colorado, Kentucky, Louisiana, Missouri, and WestVirginia.States that prohibit collective bargaining in publiceducation and agency fees: Arizona, Georgia, Missis-sippi, North Carolina, South Carolina, Texas, Utah,Virginia, and Wyoming.States that prohibit agency fees are "right to work"states. In these states, employment may not be condi-tioned upon membership in or payment of any fees toteacher unions in order to work. Thus the followingdiscussion is directly applicable to the 19 states thatrequire or allow agency fees. The discussion is relevantelsewhere as a basis for considering whether or not toauthorize or require agency fees in public education.

The Case For Agency FeesThe case for agency fees arises out of exclu-

sive representation and the duty of fair representa-tion. In collective bargaining, once it is chosen by amajority of employees in an appropriate unit, theunion is the "exclusive representative." The unionmust bargain for all teachers, nonmembers as wellas union members. Neither members nor nonmem-bers can bargain on their own, either as individualsor in subgroups. Not only must the union representall the teachers; it is prohibited from negotiating

terms and conditions of employment for nonmembers thatdiffer from those negotiated for members. The nonmember,therefore, allegedly receives the benefits of union represen-tation but, in the absence of agency fees, has no obligation toshare the costs of it. The nonmembers are said to be "freeriders" in this situation. In the union view, nonmembers arecomparable to citizens who receive the benefits of govern-ment but do not pay their share of the taxes. This is whyagency fees are often referred to as "fair share fees." If sub-ject to agency fees, nonmembers must pay their "fair share"of the costs of union representation.

The union's legal obligation to represent everyone im-

The union mustbargain for allteachers, non-members aswell as unionmembers.

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EEPO Series: Elgeiricy IFees

partially is "the duty of fair representation." This duty, inconjunction with exclusive representation, constitutes the coreargument for agency fees. Knowing that whatever the unionnegotiates they will be treated the same as union members,nonmembers have a strong incentive not to join and not topay union dues. This problem arises whenever members ofa group receive benefits but are not required to share thecosts of achieving and protecting them.

In 1967, the U.S. Supreme Court upheld the constitu-tionality of public sector agency fees in Abood v. DetroitBoard of Education.' In Abood, the Supreme Court heldthat nonmembers could be required to pay their pro rata shareof the union's costs of collective bargaining, contract admin-istration, and grievance processing (hereinafter referred tosimply as "collective bargaining"). All other union expendi-tures were held to be nonchargeable to nonmembers. This,however, was not the U.S. Supreme Court's last word on thesubject. In Lehnert v. Ferris Faculty Association (1991), per-haps the most important subsequent case on chargeability,the nine member court ruled on whether union expenses arechargeable to agency fee payers as follows:

Yes: Nonmembers can be forced to pay (chargeable).

No: Nonmembers cannot be required to pay (noncharge-able).

Lobbying, unless necessary to ratify or fund the non-members' specific bargaining agreement. No: 7-1.Electoral politics, including ballot and bond issues. No:8-1

Public relations activities. No: 8-1.Litigation not specifically on behalf of the nonmembers'bargaining. No: 7-1.Bargaining and other related activities on behalf ofpersons in other bargaining units and other states. Yes:9-0, unless the extra-unit activity is wholly unrelated tothe nonmembers' bargaining unit and cannot ultimatelyinure to the benefit of the nonmembers' unit.Miscellaneous professional activities, i.e., generalteaching and education, professional development,unemployment, job opportunities, award programs, andother miscellaneous matters. Yes: 5-4.

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10

Local delegate expenses to attend conventions of thelocal's state and national affiliates. Yes: 5-4. The Courtexplicitly did "not determine whether [nonmembers]could be commanded to support all the expenses ofthese conventions."Threatening and preparing for illegal strikes. Yes: 6-3.

Although the issue was not specifically presented, theCourt also said that a union payment "in the nature of a chari-table donation would not be chargeable to nonmembers.'

As will be evident, however, union accounting prac-tices render it extremely difficult for nonmembers to chal-lenge union determinations of chargeability.

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Chapter 2NER/RFT Revenuesfrom Rgencg Fees

Union revenues are much more dependent on agencyfees than is widely realized. In 1997-98, the National Edu-cation Association (NEA) enrolled approximately 2.3 mil-lion members, of whom about 1.7 million were full-timeclassroom teachers. NEA revenues amounted to $213 mil-lion, exclusive of the NEA's PAC funds, foundations, andspecial purpose organizations. According to NEA financialstatements, 23,000 agency fee payers paid $2.4 million, 1.29percent of the NEA's $185.7 million budget in 1995-96.These figures refer only to NEA revenues. In right-to-workstates, the state and local affiliates receive no income fromagency fees; in states which authorize or mandate agencyfees, union financial statements indicate that agency fees are2 to 4 percent of state and local revenues.

NEA's figures grossly underestimate NEA revenuesfrom agency fees. In many school districts, some teachersjoin the union and pay union dues only because the differ-ence between the agency fees and dues is not worth the hassleassociated with nonmembership. For this reason, NEA fi-nancial statements that distinguish dues from agency shopincome are highly misleading; a considerable amount of duesincome is the result of agency fees.

To understand why, suppose that combined local, state,and national dues in the NEA are $500. Suppose also thatthe agency fee in District A is 85 percent of dues, but only 35percent in District B, each of which employs 100 teachers.On this basis, the results are as follows:

District A District B

Dues $500 $500

Agency fee percent 85 35

Agency fee paid to union $425 $175

Teacher saving from paying agencyfee instead of dues

$75 $325

Total number of teachers 100 100 10

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Total number of fee payers 10 15

Union revenues from agency fees $4,250 $2,625

Total union revenues $49,250 $45,125

If there were no agency fees, nonmembers in both Dis-tricts A and B would not pay anything to the union. In ourhypothetical districts, however, only 10 teachers in A decidethat the $75 saved by not joining the union isn't worth thecriticism and loss of rights to participate in union affairs. Itmay be that if teachers in A were required to pay only $175in agency fees, more would act like the 15 teachers in B,who have concluded that the $325 savings justifies nonmem-bership. Clearly, the closer the agency shop fees are to dues,the more teachers will opt for membership and payment of

full dues instead of agency fees. This is why there is

Clearly, the do- invariably an increase in union membership when

ser the agency agency fees of 60 percent or more of dues are nego-tiated.

shop fees are todues, the more Because the point at which teachers will choose

union dues over agency fees varies, we cannot sayteachers will optprecisely how much dues income is due to the exist-

for membership ence of agency fees. Strong evidence on the issue isand payment of to be found in state comparisons of "union density,"full dues- instead that is, the percent of teachers who are members ofof agency fees. the NEA or AFT. Although differences in union den-

sity cannot be attributed solely to agency fees, uniondensity is highest in the states with high mandatory agencyfees.

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Over time, the unions tend to be very successful in ne-gotiating agency fees. For example, it appears that morethan 90 percent of Michigan teachers are union members, apercentage clearly attributable to Michigan's high agency feerequirements. Within other states that allow unions to nego-tiate an agency fee, the percentage of teachers who are agencyfee payers varies considerably from district to district. Usu-ally, the highest percentages of agency fee payers are in thelarge urban districts. School boards that employ a small num-ber of teachers, especially in rural areas, are the least likelyto agree to an agency fee requirement.

One of the critical issues in agency fee litigation was

mingEllgriamcwwwilETW_Witit

IPD Sehies: Olgency Fees

whether agency fees applied to state and national as well aslocal union dues. After all, the local union is the exclusiverepresentative, whereas, state and national affiliates are not.Obviously, this was a critical issue, and in Lehnert, the U.S.Supreme Court held that state and national affiliates of localunions were also entitled to agency fees, based on the shareof their expenses spent for collective bargaining. The NEA'sargument was that state and national dues constituted a sortof resource bank which local unions could draw upon forhelp as needed. This argument prevailed in the SupremeCourt decision, which has been worth hundreds of millionsto U.S. labor unions.

NEA revenues from agency fees are from only nine-teen states, and the District of Columbia, which mandate orallow them. In these nineteen states, the fee payments maybe 4 to 5 percent of NEA revenues from the state. They arealso a substantial source of state and local association in-come.

To illustrate, in 1995, the California Teachers Associa-tion (CTA) received agency fees from 14,360 individuals.Since some worked only part-time, we reduce the numberby five percent to 13,642 full-time fee payers paying $345each for local, CTA, and NEA agency fees. On this basis,NEA, CTA, and California local education associations re-ceived more than $4.7 million from California teachers un-willing to join the NEA and its state and local affiliates. In-asmuch as this amount does not include agency fees paid tothe AFT and its affiliates, nor to other school district unions,it underscores the importance of agency fees to teacherunions. Although the $2.4 million from agency fees wasofficially only 1.29 percent of the NEA budget, agency feesare a much larger percentage of state and local associationbudgets.

The preceding discussion has focused on NEA revenuesfrom agency fees. It is safe to say, however, that the AFTand its affiliates are even more dependent on these revenuesthan is the NEA and its affiliates. In 1997-98, the agency feefor the national AFT was approximately 73 percent of dues;the agency fee for the New York State United Teachers, whichenrolls about a third of all AFT members, charged agency 12

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EIP 1 Sautes: figency Fees

14

fees that were 96 percent of dues. To put it mildly, the NYSUTallocation is difficult to accept as a financial reality, regard-less of the absence of any legal objections to it. AppendicesB and C illustrate the kinds of letters from their state andlocal union that nonmembers receive in New York state.Obviously, the nonmembers face immediate pressure fromthe union to join and pay full union dues and assessments.

The fact is, however, that union financial statementsgrossly understate union revenues from agency fees in stillanother way. Unions are much more likely to raise their duesif employees must pay either dues or agency fees. This iswhy both the highest union density and the highest dues arein states in which the agency fees are mandatory or nego-tiable.

Go back to our previous example, where the dues indistrict A were $500 and the agency fee was 85 percent ofdues, or $425. Now, suppose the dues are raised to $600 andthree times as many teachers (30 instead of 10) choose to benonmembers. This would be a relatively high total dues in-crease for any one year, but it does not affect the validity ofthe example. The union's financial picture would be as fol-lows:

District A

(Before dues (After duesincrease increaseof $100) of $100)

Number of teachers 100 100

Dues $500 $600

Agency fee % 85 85

Agency fee paid to union $425 $510

Teacher saving from membership $75 $90

Union members 90 70

Union revenues from members $45,000 $42,000(90x$500) (70x$600)

Union revenues from nonmembers $4,250 $15,300(10x$425) (30x$510)

Total union revenues 1 3 $49,250 $57,300

; ZMICAIEVCIEZE_ARINSIMEIwW,:, _

IE IN Series: Rgency Fees

In short, although nonmembership tripled from 10 to30 as a result of the dues increase, total union revenues in-creased $7,050, or 14.3 percent. High agency fees enableunions to raise the dues and not worry about financial lossesresulting from teachers opting for nonmembership in theunion.

The legal status of compulsory union membership andcompulsory union dues is widely misunderstood. It is oftenasserted that unions can require employees whom they rep-resent to be union members. As a matter of law, this asser-tion is not true. Through various means, such as agency fees,unions can pressure employees to become or remain unionmembers, but it is not accurate to say that employees can berequired to become or remain union members to get or keeptheir jobs.

Similarly, it is often said that the teacher unionscan require teachers to pay union dues. Althoughthe NEA/AFT would like school boards and teach-ers to believe this, the unions cannot legally requirethe teachers they represent to pay full union dues.In some states and school districts, the unions con-tinue to charge nonmembers the full amount of uniondues, but that happens because the nonmembers donot know their rights or are not willing to assert themfor one reason or another.

It is not accurateto say that em-ployees can berequired to-be-come or remainunion membersto get or keeptheir jobs.

The sad truth is that after several years of litigationover the issue, a recent U.S. Supreme Court decision hasupheld the right of labor unions to mislead employees onthis issue. In Marquez v. Screen Actors Guild, the contractbetween the union and a movie producer included a clausethat required "membership [in the union] on or after the thir-tieth day following the beginning of...such employment." Thecontract did not explain that as a result of U.S. Supreme Courtcases, employees could fulfill this membership requirementby paying only the employee's pro rata share of the union'scosts of collective bargaining.

The plaintiff in the case was an actress who was re-placed by the producer because she had not paid the uniondues by the day before she was to have begun to work. There-upon, the plaintiff sued, alleging that the union had violated

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its duty of fair representation because the union contract didnot point out that the union security clause could not be le-gally enforced to require payment of full union dues.'

In holding against the plaintiff on this issue, the U.S.Supreme Court pointed out that the union did have a respon-sibility to inform employees of their rights not to pay fullunion dues. The issue before the Court was whether the unionbreached its duty of fair representation by not including con-tractual language stating this right. The Court held that thiswas not required because the union could inform employeesof their rights through other means.

The Marquez case illustrates an extremely importantfact about agency fees. Employees need not pay either duesor fees in the absence of an employer's agreement to requirepayment of dues or fees to the union as a condition of em-ployment. In some contracts, the employees are required topay agency fees, but the employer has not contractuallyagreed to fire the employees who have refused to pay them.Thus, even in agency fee districts, it is not always true thatrefusal to pay agency fees leads to dismissal from employ-ment.

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LYNAVT*W.14,, -.:44WrArt-INWF:Mt SAMINIWRIERMINORP,

UPI Series: Rgency Fees

Chapter 3The Case Against

Agency FeesHaving stated the case for agency fees, let us turn to

the case against them. First of all, the contention that every-one benefits from union representation is fallacious on itsface. Some teachers are clearly worse off under union repre-sentation. For example, unions negotiate layoff proceduresbased upon seniority last hired is first fired. Teachers whoare fired under union negotiated procedures, but who wouldnot have been otherwise, hardly "benefit" from union repre-sentation. Teachers in difficult-to-staff subjects, such as math-ematics and science, would often be paid higher salaries thanthey receive under union negotiated single salary schedules.Newly employed teachers would often be paid moreif the union had not insisted on higher salaries forsenior teachers. Single teachers without dependentswould often enjoy higher salaries were it not for thefact that the union opted for family health insuranceinstead of higher salaries.

The union rebuttal to these criticisms is basedupon the fact that in the short run, it is impossible tosatisfy all the interests in the bargaining unit. Sen-ior teachers want higher maximum salaries; new teacherswant higher beginning salaries and fewer steps to reach themaximum. Teachers with advanced degrees want higher dif-ferentials for them; teachers with only a bachelor's degreewant more funding for the regular schedule. Single teacherswant single employee insurance coverage; married teacherswant spousal and family coverage, and so forth.

At any given time, it is impossible to satisfy all of theseand other conflicts to the satisfaction of all the teachers whoare affected by them. The union, in negotiations with man-agement, tries to arrange the tradeoffs that lead to a mutuallyacceptable agreement. In practice, the internal conflicts arenot necessarily resolved in the interests of the majority; how-ever, since the proposed agreement must usually be ratifiedby the members of the union (not necessarily all the teachersaffected by the proposed agreement), let us assume for the

The contentionthat everyonebenefits fromunion represen-tation is .falla-cious on its face.

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sake of discussion that the agreement is in the interests ofthe majority of unit members, that is, teachers representedby the union.

One problem is that agency fees rest on the proposi-tion that everyone in the bargaining unit benefits from unionrepresentation, but clearly everyone does not benefit. Thisconclusion is not affected by the fact that at any given time,it is impossible to satisfy all the demands of unit members.As a practical matter, some legitimate demands of subgroupswithin the bargaining unit will never be satisfied under ex-clusive representation. Let us see how and why this is so.

The duty of fair representation was laid on unions inthe 1944 Steele case involving racial discrimination.4 Es-sentially, a union of white railroad employees representedblack employees who were not allowed to join the union.When the black employees challenged their exclusion, theSupreme Court came up with "the duty of fair representa-tion" to preserve exclusive representation. As previouslynoted, under the duty of fair representation, the union mustrepresent nonmembers as well as members equally and with-out discrimination. Note that internal democracy within theunion does not necessarily prevent unfair or discriminatorytreatment of either members or nonmembers, or evennonemployees. For instance, in the Steele case, the fact thatthe internal union processes were fair and democratic had nobearing on the injustice against black nonmembers excludedby the union. Such cases arise constantly outside of the ra-cial context.

For example, mathematics teachers who could com-mand higher salaries except for union representation, maynever be able to convince the union to negotiate salary dif-ferentials for mathematics teachers. The mathematics teach-ers may have unimpeachable data showing that the demandfor their talents outside of education is much greater than thedemand for the talent required to be a history teacher. Con-sequently, unless some school districts are willing to pay morefor mathematics than history teachers, they will be forced toemploy mathematics teachers who do not have the talent re-quired to perform adequately.

The important point here is not whether the mathemat-

1EPD Series: ngencg Fees

ics teachers are right. The point is that they are representedby a union that has been, and is likely to continue to be,strongly opposed to salary differentials for mathematicsteachers. For this reason, the union is much less likely topresent the argument for differentials fairly to the schoolboard, if indeed the union presents the argument at all.

Clearly, the situation presents a union conflict of inter-est. On the one hand, the union is supposed to represent themathematics teachers fairly and impartially. On the otherhand, to do so would endanger the union interest in main-taining a single salary schedule. The union has a strong in-terest in maintaining a single salary schedule because it needsto avoid internal controveisies over what subgroups shouldget more and what subgroups should get less. Inasmuch assuch controversy would or could destroy union solidarity,the unions oppose it. Unfortunately, the harm done to teach-ers who could earn more in other employment is only part ofthe harm done to teachers represented by the union. Obvi-ously, the mathematics teachers are not the only group ofteachers who lose more than they gain from union represen-tation. Requiring such teachers to pay their "fair share" ofthe costs of union representation is a triumph of semanticsover substance.

Under union representation, mathematics teachers mustpersuade the majority of teachers to agree to the higher sala-ries for mathematics teachers. The chances that this willhappen are virtually zero. The situation presents a conflictof inierest that continues indefinitely. It differs significantlyfrom the impossibility of satisfying everyone's demands atany given time. Granted, the mathematics teachers may re-gard other benefits of unionization, such as job protection,as compensating for their low salaries as teachers, but clearlymany mathematics teachers are permanently and substan-tially disadvantaged by union representation.

The unions seek the duty of representing everyone, andwould be greatly upset if employees could negotiate theirterms and conditions of employment individually. Further-more, the unions seek exclusive representation even whereagency fees are not allowed. And even if agency fees areallowed, it does not follow that nonmembers should pay a 18

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pro rata share. For example, suppose that a bargaining unitincludes 250 teachers, of whom 249 are union members. Theunion's costs of representing all 250 may not be a pennymore than its costs of representing the 249.

Note also that every agency fee per se results in twolosses to the fee payers. They lose the option of contractingon their own and also their leverage in union affairs. In thecontext of teacher/union relations, the teacher is a consumerof representational services; the union a producer of them.In most situations, withdrawal as a client or customer is themost effective way to influence producers. Taking away theteacher's right not to buy union services is taking away theteacher's ability to influence the union, the only feasible way

for most teachers to influence union decisions. Where1 agency fees are in effect, dissident teachers often have

no leverage on the union. Persuading other teachersto take action may require teacher time and resourcesthat are not available. In contrast, if teachers neednot pay anything to the union, teachers do not haveto be politically active within the union to exert theirinfluence.

A strong and independently decisive objectionto agency fees is that fee payers are forced to subsi-dize political causes to which they are opposed. Mostobservers, including many supporters of agency fees,agree that teachers, or any employees, public or pri-vate, should not be forced to do this, regardless of

whether their jobs are at stake. The principle is not the is-sue; it is whether any NEA/AFT expenditures from dues andagency fees subsidize political causes that are opposed bysome members and agency fee payers. The NEA/AFT denythat this happens, but their argument rests upon a legal mean-ing of "political" that is unrealistic in practice. Federal lawprohibits unions from spending dues and agency fees forpolitical purposes; however, federal law defines "political"as support for candidates for public office. Thus, legally, theteacher unions cannot contribute regular union revenues tosupport or oppose candidates. At the same time, they canspend as much as they wish to support positions espoused bycandidates, that is, for "issue advertising." For example, theunions could not charge nonmembers for the election ex-

A strong and in-dependently de-cisive objectionto agency fees isthat fee payersare forced tosubsidize politi-cal causes towhich they areopposed.

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1E010 Seo les: Rgencg Fees

penses of a candidate for Congress, but they could chargefor advertisements supporting positions espoused by the can-didate. Both the Democratic and Republican parties evadethe intent of the campaign finance laws this way, but the is-sue here is the legitimacy of forced contributions to politicalcauses.

Theoretically, agency fee payers cannot be charged forunion political expenditures, but actually they are charged agreat deal for them. As previously noted, the U.S. SupremeCourt has held, by a 5 to 4 majority, that union expenses fortheir national conventions are chargeable to agency fee pay-ers. Both the NEA and the AFT have conducted several ac-tivities to support the Clinton/Gore ticket and Democraticcandidates for office at all of their national conventions from1992 to 1998. For example, candidates for national office,such as President Clinton and Vice President Gore,received awards and were featured speakers at theunion conventions, as were their surrogates such asHillary Rodham Clinton. It is ridiculous to assertthat these activities were not "political". The factthat federal legislation that treats only expendituresexplicitly supporting or opposing candidates as "po-litical" does not change the underlying fact that theNEA/AFT are utilizing agency fees (and dues aswell) to support political candidates as well as po-litical causes.

.Perhaps the most fundamental objection to agency feesis that it eliminates the fee payer's constitutional rights topetition government for redress of grievances. Like all mem-bers of the bargaining unit, the agency fee payer is repre-sented by the union, and only the union, on matters subjectto bargaining. The fee payer cannot appeal lo the schoolboard or school administration to redress any grievances thefee payer may have; that role is reserved to the union, andonly the union. Constitutionally, the fee payer can state his/her grievance, but any follow-up discussion of it with theschool administration is likely to be deemed an unfair laborpractice. As a matter of fact, the NEA tried to abolish com-pletely the right of any member of a teacher bargaining unitto state his/her objection to school board action at a schoolboard meeting, even if no negotiations were involved. Only

The NEVAFT areutilizing agencyfees (and dues aswell) to supportpolitical candi-dates as well aspolitical causes.

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a unanimous decision by the U.S. Supreme Court frustratedthe NEA's efforts to curtail the constitutional rights of teach-ers to petition government on grievances relating to termsand conditions of teacher employment.5

The Madison case arose in the following way. As thebargaining agent for the Madison, Wisconsin teachers, theMadison Education Association proposed that an agency feeprovision be included in its contract with the Madison Boardof Education. Just before the board was to vote on the nego-tiated agreement, which included the agency fee provision,a few teacher opponents of the agency fee provision appearedat a school board meeting to express their reservations aboutthe agency fee requirement. The teachers involved empha-sized that they did not claim the right to negotiate on theissue; their sole purpose was to invite the board's attentionto their concerns and to urge the board to defer a decision onthe issue until it had fully considered the matter.

Subsequently, the board approved the contract withoutthe agency fee requirement, and the association filed unfairlabor practice charges with the Wisconsin Employment Re-lations Commission (WERC) against the board for bargain-ing with an entity other than the association. The associa-tion charged that by allowing the dissident teachers to ex-press their views on the issue at an open board meeting, theschool board had violated its duty to bargain only with theassociation, the exclusive representative of the teachers inthe bargaining unit.

When the WERC upheld the charges, the board of edu-cation appealed its decision to the Wisconsin Supreme Court.When the Wisconsin Supreme Court also upheld the deci-sion, the board of education appealed the decision to the fed-eral courts, and the appeal eventually reached the U.S. Su-preme Court. In a unanimous decision, the Supreme Courtreversed, holding that the prior decisions of the WERC andWisconsin Supreme Court violated the teachers' rights to free-dom of speech and the right to petition government for re-dress of grievances.

Had the NEA's views prevailed in this case, teachers inbargaining units would have been deprived of basic consti-tutional rights enjoyed by citizens not represented by unions.

UPI) Series: Elgency Fees

Although widely regarded as the protector of teacher rights,the NEA's efforts to prevent teachers from expressing theirgrievances to their boards of education was a disturbing cur-tailment of them. To some scholars of constitutional law,there is no way to reconcile the NEA's position with the con-stitutional right to petition government for redress of griev-ances.6

Bargaining on agency feesThe foregoing discussion indicates that school boards

are performing a disservice to their teachers by imposingagency fees on nonmembers of the union. How, then, dounions persuade school boards to accept agency fees?

The union's first argument at the bargaining table isthat nonmembers should pay their "fair share" of the costs ofunion representation. In addition, the union argues thatagency fees help the school board in two ways. First, unionnegotiators are frequently reluctant to agree to board pro-posals that would antagonize teachers. If there is no agencyfee, teachers will withdraw from the union, thereby reduc-ing union revenues. If, however, the school board acceptsagency fees, the union can afford to agree to proposals thatwill be unpopular with teachers. Even dissatisfied teacherswho resign from the union will still have to pay an agencyfee that is almost equivalent to dues. In short, agency feesenable union negotiators to act as educational statesmen indifficult situations. This is the argument.

One problem with this argument is that the unions arenot more reasonable as a result of agency fees. Perhaps thereare districts in which the above scenario materialized, butthere is no systematic evidence that supports the claim. Andif one compares union contracts that include agency fees withcontracts that do not, the former tend to be more disadvanta-geous to the board. The reason is that the agency fee strength-ens the union and enables it to adopt a much more militantposition on bargaining issues. In fact, the most restrictivecontracts in the nation from a management point of view,such as in Toledo, Ohio, and Rochester, New York, are inagency fee districts. 22

A similar union argument relates to the possibility of

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competition from another union. If nonmembers must payagency fees, they are less likely to join a rival teacher union.The reason is that teachers are seldom willing to pay dues, orat least any substantial amount of dues, in addition to theiragency fee payments. Agency fees greatly reduce the possi-bility of establishing a union that can compete with the unionthat is the bargaining agent.

Presumably, the tendency to minimize the likelihoodof a competing union is a benefit to the school board. Com-peting unions typically compete on the basis of who cansqueeze the most concessions from the school board. Unionrivalry in a school district is often very disruptive and has anegative effect on teacher morale.

The question is whether school boards should depriveteachers of their ability to decertify an incumbent union. Asa practical matter, agency fees have this effect. In choosinga union, teachers do not make a permanent choice. At cer-tain times, usually the 90-day period preceding the expira-tion of the contract, teachers have the right to vote for a dif-ferent union, or, if they wish, not to be represented by anyunion. In labor union terminology, voting out an incumbentunion is "decertification." In practice, however, agency feesweaken the ability of teachers to support a rival to the in-cumbent union. Teachers are very unlikely to pay adequatedues to a rival union in addition to agency fees. Further-more, many school boards have unwisely granted incumbentunions exclusive rights to meet in the schools, use the dis-trict mail system, and address teachers at faculty meetings.When agency fees are present along with the other advan-tages of incumbency, it is extremely difficult for dissatisfiedteachers to decertify an incumbent union.

In most school districts, teachers are not likely to try todecertify the incumbent union even when most teachers aredissatisfied. In these situations, teachers are more likely totry to elect a different slate of union officers and negotiators.These efforts have the same negative effects as a representa-tion election between rival unions. In short, the agency feedoesn't necessarily prevent disruptive union conflict. Withan agency fee, teacher dissatisfaction with the union's per-formance usually emerges as intra-union conflict, hence the

; z.,'?";:A ; 'f'4.4t ZIP111:11,431,14-14;ilgt,,w7;3-tworprigi

IEPO Series: FOgency Fees

school board gains little if anything by requiring teachers topay substantial amounts to unions they do not wish to sup-port.

Despite these considerations, school boards and schooladministrators are frequently unable to resist the temptationto impose agency fees on their teachers. The temptation arisesfrom the fact that the uniong are usually willing, even eager,to offer significant concessions on other matters as a quidpro quo for agency fees. The fact that the agency fee comesout of the pockets of the teachers, not the school district bud-get, greatly enhances its appeal to school boards.

On many occasions, school boards have refused to agreeto an agency fee for several years. Sooner or later, however,negotiations take place at a time when the schoolboard can offer little or nothing in its economic pack-age. The union then tries to negotiate critical non-

The fact that the

economic concessions from the board; agency fees agency fee comes

are the highest union priority in districts that have out of the pocketsnot already agreed to it. Unfortunately, once a school of the teachers,board has agreed to an agency fee, it is extremely not the schooldifficult to remove the fee in subsequent contracts. district budget,Practically speaking, the union needs only to win reatly enhancesthe concession once to institutionalize it in future

g

contracts. As more and more districts in an area its appeal to

agree to agency fees, it becomes more and more dif- school boards.ficult for the remaining districts to hold out againstthem.

Another common scenario relates to the impact ofagency fees upon veteran teachers who object to paying thefees, or to desirable prospective teachers who object to them.If the district employs veteran teachers who object to agencyfees, it seems unconscionable to fire them for refusal to paythe fees. The union may offer to apply the fee requirementonly to currently emplojfed teachers who do not object to thefees and new teachers. The requirements to be exemptedfrom having to pay the fee vary widely but the unions seekto limit their applicability as much as possible.

At the table, board negotiators sometimes object toagency fees on the grounds that desirable new teachers mayrefuse to be employed by the district because of the agency 24

25

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26

fee requirement. Although such cases happen, this is prob-ably a weak argument in most cases because few schoolboards can document a significant number of refusals to ac-cept employment for this reason. A much stronger boardobjection to agency fees is that it will not bargain away teacherrights to effectively oppose union actions or to petition gov-ernment for redress of grievances. The validity of these ar-guments against agency fees is not affected by the numberof relevant cases from year to year.

Finally, we cannot overlook the fact that many schoolboard members owe their election to the union or fear itsopposition if they oppose agency fees. Some board mem-bers accept the union argument and others feel that their ob-jections are futile because so many boards have agreed toagency fees. When candidates for school board face the op-tion of teacher union support or opposition, depending onthe candidate's position on agency fee issues, they tend tofind more merit in agency fees. Significantly, the U.S. Courtof Appeals for the 6th Circuit (Michigan, Ohio, Kentucky,and Tennessee) has held that public employers have a dutyto protect the constitutional rights of their employees; theunion's agreement to reimburse public employers for anyexcessive fees does not fulfill this duty.' Perhaps the threatof penalties against school board members will induce themto be more sensitive to the constitutional rights of the teach-ers they employ.

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EPIl Seri les: Ellgency Fees

Chapter 4Challenges to

Excessiue Agency Fees

The NEA asserts that about 63 percent of its expen-ditures are for collective bargaining. Its affiliated stateassociations generally set the agency fees as 65 to 80percent of regular dues. Surprisingly enough, the NEAdoes not claim the same percentage for itself in everystate, but the differences need not concern us here. TheAFT asserts that 67 percent of its national dues are forbargaining, and that as much as 94 perC,ent of its staterevenues are chargeable. The chargeable expenses forlocal affiliates varies, but 70 percent of regular dueswould be close enough for most local teacher unions.

The NEA and AFT claim that the fact that relativelyfew teachers challenge the fees shows that most teachersbelieve that the fees are fairly computed. The facts re-lating to challenges to agency fees support a contrary con-clusion.

Assume the dues (local, state, and national) are $600and the union asserts that 75 percent ($450) of local state,and national dues are chargeable, that is, are for collec-tive bargaining. If the union's chargeable expenses arereally only 50 percent of dues, the challenger stands togain $150. Note, however, what the teacher must do toget his/her $150 from the union. The teacher must re-sign from the union and submit a request in proper legalform for the union's allocations of chargeable and non-chargeable expenses. These allocations will be basedupon the union's expenditures for the prior year. If theteacher does not accept the union's determination of theagency fee for the prior year, the teacher must sue theunion to recover the excess charges.

Practically speaking, individual teachers cannotscrutinize the expenditures of the state and nationalunions to determine whether the union's allocations arecorrect. Indeed, even at the local level, it is practically

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EH Series: Rgency Fees

impossible for an individual teacher to do so withoutexpert legal assistance. Inasmuch as the most the teachercan accomplish is the return of any excessive paymentwith interest, the enormous legal costs to recover a smallamount are daunting obstacles to a challenge, no matterhow justified.

To appreciate the difficulty of challenging exces-sive agency fees, we must consider how the unions allo-cate their expenditures. An example may suffice to il-lustrate the problems. "UniServ directors" are the NEA'sfull-time union business agents. Most are employed bya state association but negotiate for a local associationor a group of local associations, usually referred to as a"UniServ Council." A substantial percentage of unionexpenses that are charged to nonmembers is based on

UniServ time. If UniServ directors devote 85A substantial percent of their time to collective bargaining, 85percentage of percent of their support costs (secretaries, sup-union expenses plies, equipment, etc.) are also allocated to col-

that are charged lective bargaining. To support union claims of

to nonmembers chargeability, UniServ directors prepare time_ sheets, often on a weekly basis. The sheets are

is based on Uniused solely for the purpose of supporting union

Serv time. claims of chargeability, if and when such claimsare challenged.

How much UniServ time is devoted to chargeableactivities? Obviously the answer to this question dependson several factors. If multiyear contracts are negotiated,no time thereafter may be required for bargaining for twoor three years, when it becomes necessary to negotiate anew contract. Poorly drafted contracts may lead to moregrievances and more time devoted to contract adminis-tration; quite often grievances require more time than ne-gotiating contracts. Personal factors often play a sig-nificant role; intransigent local association leaders orschool board members may drag out negotiations for sev-eral months. The time devoted to impasse procedures isoften affected by the availability and attitudes of media-tors and fact-finders. In short, it is impossible to predicthow, union staff will utilize their time; reconstructing their

28

EN Series: Figencg Fees

utilization of it can be extremely difficult, even if an ef-fort is made to maintain contemporaneous records.

Needless to say, the union enjoys an enormous ad-vantage in litigation over whether staff time was devotedto chargeable or nonchargeable activities. Suppose theUniServ director attends a UniServ council meeting atwhich the agenda includes:

Bargaining strategy in the districts;Union endorsed candidates for the state legislature;Endorsements of candidates in the school boardelection;PAC deductions in the contracts;Health insurance in school district contracts com-pared to benefits in proposed health care legislation;Pending state legislation on state aid to education.

Suppose also the meeting lasts four hours. TheUniServ directors are fully aware of the financial impli-cations of their time records. Legal confusion and faultymemory aside, the timesheets inevitably exaggerate thechargeable time. Precise allocations of chargeable timewould require mountains of records and render it diffi-cult for staff to concentrate on the business at hand. Atthe same time, lump sum allocations are inevitably tiltedtoward chargeable expenses. Furthermore, the procedureunderscores the enormous difficulties in impeachingUniServ time sheets years later, if and when the alloca-tions of time are being challenged by nonmembers. Allof the participants in the UniServ council meetings willbe association leaders and negotiators who have a stronginterest in maximizing chargeability. The teachers whowere not present at the meetings face enormous difficul-ties in discrediting the allocations a year or more afterthe meetings.

According to NEA publications, the UniServ direc-tors:

Manage all political activities within their unit;Coordinate their activities with union political actioncommittees (PACs);Train union PAC representatives and distribute 28

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IEIP Seoles: Elgency Fees

materials;Collect and transmit PAC contributions to the statePAC official within three (3) days.'

In conjunction with their other political responsi-bilities, UniServ directors obviously devote considerabletime to political activities. What counts is how UniServdirectors categorize their time; how their time is actuallydivided is practically irrelevant. The nonmember (andyou must be a nonmember to challenge the allocations)is not present when the allocations are made. In prac-tice, the allocations are based on the prior year's expen-ditures. Thus, even if a nonmember recognized an ex-cessive allocation to chargeable time in 1998-99, thatwould have no bearing on the agency fee that had to bepaid during that year.

In any case, teachers who are in the class-: In conjunction room all day cannot monitor the time of unionwith their other staff in order to challenge the agency fee the fol-political responsi- lowing year. The simple truth is that teachers typi-bilities, UniServ cally cannot protect their rights relating to agencydirectors obvi- fees without legal assistance. In the past, theously devote con- unions tried to require teachers to utilize unionsiderable time to controlled procedures to challenge excessive fees,

political activities, but such requirements have been rejected by thecourts. The issue was resolved in Miller v. ALPA.9In this case, the issue was "whether an objector

must exhaust a union-provided arbitration process beforebringing an agency-fee challenge in federal court." TheU.S. Supreme Court held that "unless they agree to theprocedure, agency fee objectors may not be required toexhaust an arbitration remedy before bringing their claimsin federal court."

The AFT is just as likely as the NEA to require ex-cessive agency fees. In taking credit for the Clinton-Gorevictory in 1992, the American Teacher pointed out:

AFT staffers were assigned to help coor-dinate activities in Illinois, Michigan, Ohio,New York, Pennsylvania, Georgia, Missouri,Louisiana, Connecticut, Oregon, and Minne-

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EP° Series: Rgencg IFees

sota. Others helped write material for distri-bution to members. The union also boostedits retiree staff to help organize AFT's seniors,and two health care staffers were assigned towork with the Clinton/Gore Healthcare ActionTeam.

The agency fees in the AFT were not adjusted down-ward to reflect these nonchargeable activities; the per-centage of dues charged to agency fee payers did notchange as a result of these political activities. One inter-esting bit of evidence on the issue is how the AFT cat-egorized its expenditures before the Supreme Court de-cisions on agency fee issues. In 1995-96, AFT dues were$108.40, and the AFT charged 74.82 percent of thisamount ($81.25) as the national office share of agencyfees. This is more than twice as much as the 35.5 per-cent spent for "collective bargaining and organization"in the 1972 AFT budget, when the revenue implicationsof this budget item were not an issue.

The most persuasive evidence on NEA/AFT over-

'charging agency fee payers is the litigation record. Ac-

, cording to the National Right to' Work Legal DefenseFoundation (NRTWLDF), it litigated 668 cases againstthe teacher unions from 1968 to July 1996. Of these,365 were still open and 303 were closed as of July 1,1996. Of the closed cases, 270 90 percent resulted inan agency fee reduction. As of April 1996, NRTWLDFhad litigated 587 agency fee cases for public employeeswho challenged one or more aspects of the fee. The ma-jority of these cases have been against the NEA and itsaffiliates. NRTWLDF attorneys achieved a reduction offees in 460 of these cases. Some involved procedures,but procedures are often critical. For example,NRTWLDF attorneys litigated the cases that overturnedthe union's right to control the rebate procedure frombeginning to end, even to selecting the "impartial arbi-trator."

NRTWLDF cases arose in every state that requiredor allowed agency fees. Perhaps the most compelling 3 0

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31

fact about the cases is that they were not litigated be-cause they were the most egregious cases of union over-reaching. Even if they were, they would constitute astrong argument that the NEA and the AFT are engagedin questionable accounting practices in order to maxi-mize revenue streams, but the case for this conclusion ismuch stronger.

The cases that are litigated are only a small part ofthe picture. Bear in mind that NRTWLDF is a charitablefoundation with limited resources. Furthermore,NRTWLDF provides legal assistance only if asked to doso. The vast majority of agency fee payers do not ask forlegal assistance. In fact, the majority pay full union duesor very close to that amount. Many do not know thathelp may be available or that their rights are being vio-lated. Many who know that help is available prefer toavoid the publicity and pressure of a lawsuit.

The stakes in the agency fee cases, and the stagger-ing costs involved in litigating them fully, are illustratedby Belhumeur et al v. Massachusetts Teachers Associa-tion (MTA).1° The case was initiated in 1989 and wasstill in the Massachusetts courts in 1998. The plaintiffswere more than 100 K-12 teachers and university pro-fessors. The main issue was whether the MTA had metits burden of proof in setting the agency fee over a five-year period.

After lengthy pretrial discovery, the trial began inFebruary 1993. The trial required 53 days, leading to atranscript of 7,920 pages of testimony. More than 11,000exhibits, many of them long documents, were introduced.The database eventually included 56,373 records, andrequired extensive computer services in order to crossindex and compare various documents, such as the timesheets of UniServ directors. During the trial, the MTAunsuccessfully sought a ruling that the legal expenses ofthe trial were wholly chargeable to nonmembers. TheMTA was also unsuccessful in its effort to retry each itemon which it had failed to meet its burden of proof. Atone point, the trial days had to be rescheduled because

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EPII Seriles: Flgency Fees

the union's lawyers were on strike against the MTA. Inthe course of the litigation, NRTWLDF attorneys discov-ered that the MTA had helped to organize a boycott ofFolger's coffee which was contrary to U.S. policy, andopposed by the State Department, the U.S. Catholic Bish-ops, and labor unions in El Salvador. It was also discov-ered that the MTA vice-president had met with Cubantrade union officials, traveled to Costa Rica to meet withEl Salvadorian unionists, and traveled to Canada to studyits "single payer" health care system. The MTA had cat-egorized all of these activities as chargeable to agencyfee payers.

The union position is that no illegality is in-volved even if the contract specifies paymentequal to union dues and assessments. Under U.S.Supreme Court decisions, the nonmembers mustobject to the fee. If they do not object, they mustpay the agency fee, whatever the amount; if theyobject, they get a refund of the nonchargeable ex-penses. The union position is that illegality wouldcome into play only if a nonmember objected anddid not receive due process and/or the appropri-ate reduction. The NEA/AFT also oppose anylegal obligation on their part to inform teachersof their rights concerning agency fees. Union de-termination to take advantage of teachers' lackof information about teacher rights is hardly con-sistent with the ideal of a union or professional(organization devoted to protecting them.

Union determi-nation to takeadvantage ofteachers' lack ofinformationabout teacherrights is hardlyconsistent withthe ideal of aunion or profes-sional organiza-tion devoted toprotecting them.

Because of the huge litigation costs involved inagency fee cases, the cases that are litigated reflect onlya small fraction of the requests for legal assistance; therequests for legal assistance come from only a small frac-tion of the districts in which legally excessive fees arecollected from nonmembers. As previously noted, theNEA/AFT contend that the small number of challengesdemonstrates widespread teacher acceptance of full duesor agency fees ranging from 60 to 90 percent of dues.The insincerity of their position is evident from the factthat the unions do not notify unit members of their agency

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fee rights unless required to do so by court order or thethreat of one.

Sometimes NEA/AFT leaders inadvertently inviteattention to their lack of candor on agency fee issues.For example, in urging merger with the AFT, NEA presi-dent Keith Geiger asserted that "the local affiliates werejust tired of spending tons of money fighting each other....They came to the conclusion that spending all that timeand money isn't improving education and isn't improv-ing the plight of their members:" AFT statements onmerger asserted the same conclusion.12 Competing forrepresentation rights against a rival union is not a charge-able expense to agency fee payers. Inasmuch as theunions now concede that such expenditures aren't help-ing teachers, it would be interesting to see whether the

The unions do "tons of money" spent this way were illegallycharged to agency fee payers, or who among their

not notify unit current leaders were responsible for wastingmembers of their "tons of money" this way.agency fee rights

The obstacles facing teachers who challengeunless required agency fees must be considered in the context ofto do so by court the union stake in the outcome. When a teacherorder or the challenges an excessive agency fee, the union hasthreat of one. to consider the impact of the challenge on other

teachers who might be affected by the outcome.Suppose there are 1,000 agency fee payers in the state,and the teacher alleges that the chargeable amount forthe state association should be only $300 instead of $450.The state association faces a loss of $150,000(1,000x$150) if the challenge is upheld, but that wouldbe only part of its loss if the teacher wins the lawsuit.The lower agency fee may lead many teachers to resigntheir membership, which could result in even greater fi-nancial losses to the union. Losing the lawsuit wouldencourage more teachers to scrutinize the agency feeamounts, and the union would have to reveal more aboutits internal operations than it would like to do. Further-more, any loss of membership would weaken the union

3 3 politically, especially if other teacher organizations poseda threat to union membership. In short, while the indi-

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IEIPEI Startles: Rgencg IFees

vidual teacher has only the possibility of a small mon-etary gain, the unions have a huge stake in crushing anychallenge to agency fees. Understandably, the unions de-vote huge resources to agency fee cases. As theBelhumeur case illustrates, it is not unusual for these casesto last for several years and require millions in legal andancillary expenses. Needless to say, individual teacherscannot absorb the expenses of defending their rights inagency fee cases, regardless of the merits of their claims.In some states, teachers can get redress from their statelabor boards, but most of these boards tend to have a pro-union orientation on agency fee issues.

The huge costs of agency fee litigation are not theonly reason why there are relatively few challenges toexcessive agency fees. The fact is that relatively fewteachers know their rights relating to agency fees. Sadto say, school boards often don't know very much aboutagency fee issues, or don't care enough about them toprotect teacher rights on this issue. Board memberselected as a result of union support are not likely to raisethe issue, and neither are many board members whouncritically accept the union position on the issue.

In addition to substantially increasing union rev-enues, agency fees generate substantial savings in unionexpenditures. Teachers paying $300 to $500 in agencyfees are not likely to invest a comparable amount in arival organization. In the absence of agency fees, theNEA/AFT would have to devote much more resources torecruiting members and fighting off rival organizations.

In Hawaii, Minnesota, and New York, state statutesrequire all public schbol teachers to pay agency fees fromthe first day of employment. These statutes provide hugebenefits for the teacher unions. If they were required tonegotiate on the subject, some school boards would refuseto agree to agency fees, and others might delete the feesin future negotiations. Furthermore, if the unions wererequired to negotiate for agency fees, school boards couldinsist upon important union concessions in return. In con-3

4trast, when agency fees are mandated by statute, the

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LEPD Series: iligericy Fees

unions need not make any concessions to get the benefit.Even when required to bargain over agency fees, how-ever, the unions are usually successful in achieving it overseveral years of bargaining.

Religious objections to agencyfees

Some teachers object to agency fees on religiousgrounds. That is, the teachers believe that their religiousbeliefs preclude contribution to a teacher union. Appen-dix A sets forth an agency fee article that has a religiousexemption. In Appendix A, teachers seeking a religiousexemption must still pay an amount equivalent to dues

Teachers mustreaffirm their re-ligious objec-tions every year.In contrast, the

teacher commit-ments to theunion continuewithout annualaffirmation.

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3 5

to a charitable organization. As a practical mat-ter, the charitable organizations are designated bythe union, since the school district has no par-ticular interest in the matter. The teachers maywish to contribute to other charities, but they arelimited to the ones designated in the contract.Note that the teachers must reaffirm their reli-gious objections every year. In contrast, theteacher commitments to the union continue with-out annual affirmation. The unions make it es-pecially difficult to claim a religious objectionbecause the unions do not get any revenue fromteachers claiming the exemption.

The penalty issueIn many states, the agency fees are the same as union

dues, initiation fees, and general assessments paid bymembers. How can this continue to be if the agency feeis constitutionally limited to the employees pro rata shareof the costs of collective bargaining? The reason is thatthe courts have not usually inflicted penalties on theunions and school boards that require excessive agencyfees. All the courts have typically done, even after pro-tracted expensive litigation, is to order the unions to re-turn the nonchargeable amounts with interest.

As long as the courts do not penalize excessiveagency fees, the unions will set the fees as the full amount

F-4411,_.mar.mhergysiT2r4sm.,_,94-9..x. wo_4,2122witvis

EF9 Series: Elgencg Fees

of regular dues and assessment of union members. Ifteachers do not challenge the assessment, the unions getevery penny they could possibly receive. If teachers chal-lenge the assessment, the worst that can happen is thatthe union will be ordered to return the excess amountwith interest. Unquestionably, the failure of the courtsto inflict any costly penalties on the unions for excessiveagency fees, even in the most egregious cases, is a majorreason why excessive agency fees are the rule instead ofthe exception in agency fee states.

3 6

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Chapter 5Conclusions and

RecommendationsThe foregoing analysis has led to several negative con-

clusions about agency fees. Such fees:

Infringe on individual rights that should not be subject tounion/school board contracts or by state legislativeenactments.Are usually much higher than are legally allowed by U.S.Supreme Court opinions and guidelines on the subject.Are promoted for reasons that are hardly more thanslogans and cannot withstand critical scrutiny.Avoid legal challenge only because teachers are notaware of their rights, or lack the resources to protect theirrights.Lead to higher union dues and revenues while weakeningteacher ability to influence union actions of any kind.Weaken teacher opportunities to choose an alternative tothe incumbent union.Are subject to widespread accounting abuse at every stepof the procedures utilized to compute the agency fees.

Even on the mostbenign view ofthe matter, agencyfees constitutetaking moneyfrom employeesfor purposes theydo not wish tosupport, and foractivities thatmay be againsttheir interests.

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Some of these criticisms are more importantthan others and theoretically, some could be cor-rected by the teacher unions, although this is notlikely to happen. But even on the most benign viewof the matter, agency fees constitute taking moneyfrom employees for purposes they do not wish tosupport, and for activities that may be against theirinterests. The unions should no more be entitled totake money this way than someone who installs atelevision set in your house against your wishes andthen insists that you pay for the "benefits". The factthat the other home owners on the block voted toapprove the installation would be irrelevant.

Interestingly enough, union security varies inother industrial nations. Only a few require union

membership before employment. The most frequent issue iswhether it can be required after employment. In some na-

IEPD Seoies: Rgencg Fees

tions, the issue is left to agreements between employers andunions. In a few, employees must join a union, but have thefreedom to choose the union. Note, however, that the Euro-pean Community Charter on Fundamental Social Rights in-cludes an explicit prohibition of agency fees; the charter lan-guage is as follows:

Employers and employees within the Eu-ropean Community have the right to associatefreely for the purpose of forming professionalassociations or trade unions of their choice, forthe defense of their economic and social inter-ests. Every employer and every employee hasthe right to join these organizations, and is not tobe subjected to any personal or work related pen-alty for doing so."

The above quotation demonstrates that agency fees arenot an inherent feature of labor relations in a democratic so-ciety that is hospitable to labor unions. The contrary is true,just as it is in many states in the United States that prohibitagency fees. In the United States, the most active opponentof agency fees is the National Right to Work Committee.The NRTWC is a national organization devoted to protect-ing union members against forced membership or forced em-ployee contributions to unions. Its major objective is a na-tional right to work law that would effectively end agencyfees in the private sector. Needless to say, unions display anextremely hostile attitude toward the NRTWC, and its sup-porters are subject to extremely disparaging union attacks.

Teachers subject to agency feesTeachers subject to agency fees should write or call

the National Right to Work Legal Defense Foundation(NRTWLDF) for assistance. The NRTWLDF provides as-sistance at no charge to teachers seeking redress in agencyfee and other cases of union violations of employee rights.It frequently happens that the teacher unions insist upon im-proper procedures in informing teachers of their rights or incalculating the fees that are charged to nonmembers. TheNRTWLDF employs a team of lawyers" who specialize inagency fee issues. The organization has won several impor-

38

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IEIPO Senies: Rgencg Fees

40

tant cases on agency fee issues before the U.S. Supreme Courtand is unquestionably the most effective organization de-voted to protecting teacher rights in agency fee cases. TheNRTWLDF can be reached at:

National Right to Work Legal Defense Foundation8001 Braddock RoadSpringfield, VA 22160Tel: 800/336-3600Email: legal@nrtw.orgWebsite: hap://www.nrtw.org"

As pointed out previously, teachers must be nonmem-bers of the union in order to challenge an agency fee. Unionmembers opposed to agency fees, however, can help to re-duce or eliminate them. By pointing out their unfairness andviolation of individual rights, union members may be able tochange the contracts that require agency fees.

Both union members and nonmembers should take cog-nizance of nonchargeable expenses likely to be charged toagency fee payers. For example, if the union assigns staffmembers to work on election campaigns, members and non-members should note the dates and names of the staff mem-bers so assigned. Both should request to see the time sheetsof union staff within a week or two after the time sheets arecompleted. This would enable the requesting parties to moni-tor the allocations of chargeable time more effectively. Theunion may reject these requests but doing so would weakenits political and legal position; what valid reason can the unionhave in hiding its allocations of chargeable time from its ownmembers as well as nonmembers who have an important stakein the accuracy of the reports? Furthermore, union refusal toallow union members and agency fee payers to review theallocations in timely fashion will help to build a persuasivecase for legislation on the subject.

School board members andschool administrators

School board members and school administratorsshould seek to eliminate agency fees as a violation of theindividual rights of their employees. They should recognize

3 9IMENEMONSIMMENW,F_,A7 -t,l'igirg":,! ow.

IEIPD Seoles: IFIlgeirocgi Fees

that a teacher's choice of representative is an extremely im-portant right. Agency fees are tantamount to requiring some-one to be represented by an attorney whom the client doesnot want as his/her representative.

If unable to eliminate agency fees, board members andschool administrators should make every effort to ensure thatfee payers can monitor the chargeable expenses. For ex-ample, a board member may be serving on a school boardthat votes 5 to 4 to require agency fees. One of the fiveboard members who support agency fees might agree thatagency fees should be conditional upon access to union allo-cations of chargeable time no later than 14 days after anytime is charged to fee payers. This condition should alsoapply to state and national teacher unions. That is, unlessteachers have access to state and national charges within areasonable time, the unions should not be entitled to agencyfees. To protect the rights of their teachers, even board mem-

.bers who support agency fees should be willing toinsist upon procedural protections like these for theirteachers subject to agency fees.

The point here is to avoid oversimplified as-sumptions about agency fee supporters. Board mem-bers may support agency fees but be willing to con-sider conditions that enhance their fairness. Quiteoften, the only way to test this possibility is to propose theseconditions to the school board and see what happens.

State legislatorsshould repealthe statutes-ihatrequire or allowagency fees.

State legislators

State legislators should repeal the statutes that requireor allow agency fees. If unable to achieve outright repeal,legislators should support teacher "Right to Know" statutes.These statutes should ensure that union members and non-members alike have the right to know how the unions allo-cate their expenses as chargeable or nonchargeable within adefinite period of time, such as two weeks, after the expensesare incurred.

These recommendations are based upon an importantbut widely overlooked anomaly in our labor laws. Unionsof state and local public employees are not regulated by fed-

4041

EPO Series: Elgerocg Fees

42

eral labor law, which applies only to unions of private sectoremployees involved in interstate commerce. State and localpublic sector unions are governed by state statutes, most ofwhich were enacted in the 1960s, 1970s, and 1980s. Thesestate statutes were enacted at the behest of unions of stateand local public employees; union attorneys and lobbyistsdrafted most of this legislation. In doing so, these unionrepresentatives deleted the provisions in federal labor lawthat protect union members from the unions. As a result,teacher protections against their unions simply do not existin most states.

The fact of the matter is that teachers have much lessprotection against malfeasance by teacher union officials thanprivate sector employees have with respect to their unionofficials. For example, under the National Labor RelationsAct, union officials must declare any financial transactionswith the union. Such a requirement is necessary to preventunion officers and staff from enriching themselves throughfinancial transactions with the union. Unfortunately, statelabor laws do not provide comparable protection forunions of state and local public employees. Teacher "RightTo Know" statutes would be a helpful alternative where it isnot possible to abolish agency fees altogether.

41

IEPi Series: nejerucg Fees

FippendNAgency Fee tarticlle

The following agency fee article has been taken froman existing school district contract, with a few editorialchanges to avoid identification. The article can be consid-ered a strong pro-union one, because it includes a number ofprovisions that make it difficult for teachers to avoid pay-ment of full union dues and assessments.

Inasmuch as most of the issues have already been dis-cussed, only a few additional points need be noted here. The"Optional Procedure" illustrates the minimal concern forteacher rights on issues pertaining to dues. A relatively smallgroup of teachers has religious objections to paying dues orservice fees to the union. Such bona fide objections do notrelease the teachers from an obligation to pay; they serveonly to release the teacher from an obligation to pay the union.So the teacher has to pay, but to whom? The designated listof charities is extremely narrow, but cannot be expanded with-out union approval (section (2)1b). In some contracts, thedesignated list of charities includes only union foundationsor scholarship funds; the nonmember who does not wish tocontribute indirectly to the union can look forward to an end-less stream of litigation by union lawyers.

Finally, to safeguard against the possibility that teach-ers might drop their religious objections but continue to avoidpayment, section (2)1c requires that the Optional Procedurebe repeated every year, or the teacher pays the union. Paren-thetically, one reason the unions are so adamant about re-stricting the religious objections to agency fees is that theunion receives no income from the religious objector. Un-like the teachers who object on religious grounds, objectorson other grounds must still pay the agency fee to the union.

The union's emphasis on dues and service fees is fur-ther illustrated by Paragraph 7, which ensures that there willbe no float accruing to the district, and that the union will beable to identify non-payers immediately. Paragraph 9 en-sures that there will be no payroll deduction for any plans orprograms opposed by the union.

4 243

EPO Series: Figency Fees

44

4 3

(1) Organizational Security and Payroll Deductions

I. Any employee who is a member of the Associationwho signs and delivers to the District an assignmentauthorizing deduction of unified membership dues,initiation fees and general assessments of the Asso-ciation, or service fee (representation fee), shall havesuch authorization continue in effect from year toyear unless revoked in writing between June 1 andSeptember 1 of a given year. Any such revocationshould be effective for the next school year. Pursuantto such authorization, the District shall deduct suchdues, fees or assessments (or service fee) from theregular salary check, in ten (10) equal installmentseach year, for the duration of this Agreement.

2. The District will provide bargaining unit employeesnew to the District with a copy of the CollectiveBargaining Agreement and the employee will sign aform, a copy of which will be forwarded to theAssociation within ten (10) days of the employeereporting to work.

3. Any employee who is a member of the Unit, who isnot a member of the Association in good standing, orwho does not make application for membershipwithin thirty (30) days from the first day of activeemployment (except as provided hereafter in theOptional Procedure), shall pay a service fee to theAssociation: an amount equivalent to the UnitedMembership dues, initiation fee and general assess-ments uniformly required to be paid by members ofthe Association.

4. In the event an employee fails to comply_with thisArticle, at the request of the Association, the Superin-tendent or his designee shall notify the employeewithin (10) days that he/she is not complying withhis/her contractual obligation to the Association andthe District. A copy of such notice shall be sent tothe Association.

5. The District shall deduct service fees from the salaryor wage order of the employee who is not a member

EPII Series: Hgevicy Fees

of the Association, or has not complied with theOptional Procedure.

Any employee may pay service fees directly to theAssociation in lieu of having such service feesdeducted from the salary or wage order.

In the event that a unit member shall not pay such feedirectly to the Association or authorize paymentthrough payroll deduction as provided in paragraph1, the Association shall so inform the District and theDistrict shall immediately begin automatic payrolldeduction in the same manner as set forth in para-graph 1 of this Article.

Any payment to a charity must be made on an annualbasis.

6. The parties further agree the obligation of this Articleshall be grounded in the individual contract foremployees, which shall state "this contract issubject to a collective bargaining agreement hereto-fore or hereafter negotiated by the District and theexclusive bargaining representative of employeesemployed by the District. The terms of such collec-tive bargaining agreement are incorporated herein,and by accepting this contract, you agree to be boundby all such terms, including Organizational Securityand Payroll Deductions provisions thereof."

7. The District agrees promptly to remit such monies tothe Association accompanied by an alphabetical listof employees for whom such deductions have beenmade.

8. The Association agrees to furnish any informationneeded by the District to fulfill the provisions of thisArticle.

9. Upon appropriate written authorization from theemployee, the District shall deduct from the salary ofany employee and make appropriate remittance forannuities, credit union, and savings bonds. Deduc-tions for any other plans or programs shall be jointlyapproved by the Association and the district. 44

45

PI Series: ngency Fees

46

4 5

10. Dues Checkoff Authorization in effect on date ofthe signing of this Agreement shall remain in effectbut shall be subject to the conditions set forth in thisArticle.

11. The Association agrees to indemnify and hold thedistrict harmless from any and all claims arising froma bargaining unit member represented by the Asso-ciation concerning the implementation of this article,provided such implementation is done by the districtin good faith and in a non-negligent manner. In suchcase, the Association shall have the exclusive right todefend such suits and to determine which mattersshall be compromised, resisted, tried, or appealed.

12. The district agrees to deduct dues or service feespursuant to the schedule submitted by the Associa-tion for employees who execute a form currently inuse or any mutually agreed upon form. The Associa-tion is to submit the schedule each year by Septem-ber 7. The schedule may be amended once eachschool year with thirty (30) days notice.

Optional Procedure(2) Religious Objection

1. Any employee of this unit who has bona fide reli-gious beliefs which prohibit him/her from joining orfinancially supporting employee organizations shallnot be required to join or financially support theAssociation or its affiliates. However, that employeeshall utilize the following Optional Procedure:

a. Submit a notarized statement to the Associationwith a copy to the employer by the end of the firstmonth (September) of each school year. Thestatement shall state that the person does notdesire to join or contribute to the Associationbecause of religious beliefs that prevent him/herfrom joining or contributing.

b. Make payment equal to unified membership duesto a nonreligious, non-labor organization ex-

4 tf t Cgt'

EPO Seoies: 0:Ogeneg Fees

empted under Section 501(c)(3) of Title 26 of theInternal Revenue Code. The list of designatedcharitable organizations is: Heart Fund, CancerFund, Cystic Fibrosis Foundation or othersapproved by the Association.

c. Proof of such payment (i.e., payment to one of thecharities on the list of designated charities) shallbe submitted to the Association with a copy to theDistrict by the end of the first month of eachschool year (September).

This procedure is applicable only to employees whohave elected to not join in financial support of the Associa-tion and/or its affiliates based on personal beliefs and whoannually continue to exercise that option.

2. Any employee who is a member of a religious bodywhose traditional tenets or teachings include objec-tions to joining or financially supporting employeeorganizations shall not be required to join, maintaihmembership in, or financially support the Associationas a condition of employment, however, suchemployee shall be required to pay sums equal to theservice fee to one of the following charitable fundsexempt from taxation under Section 501(c)(3) ofTitle 26 of the Internal Revenue Code:

a. American Cancer Societyb. American Heart Associationc. Children's Memorial Hospitald. School District Educational Foundation

3. Any employee claiming the religious exemptionshall, as a condition of continued exemption, providethe Association with copies of receipts from thecharity selected as proof that such payment has beenmade, or shall authorize payroll deduction of suchpayments.

4 6

47

EPi Series: Ingency Fees

48

47

lippendix BNYSUT Notice to Ril

Nonmembers

Rgency Fee Refund Proceduresfor the 1997-98 Fiscal Year

Appendix B shows how the unions continue to extractexcessive fees, in this case, full union dues from teachers bymisleading notices to teachers. New York is a state in whichall teachers are required to pay agency fees by state law. Theunion does not have to bargain for it on a district by districtbasis. As pointed out in Chapter 2, this results in extremelyhigh agency fees.

In this notice, teachers are first told that the deductionswill be equivalent to union dues. The second paragraph ismisleading in two ways. It gives the impression that theteacher's right to object is grounded in state law and sets fortha gubstantially inaccurate standard for determiningchargeability. The constitutional standard is whether the ac-tivities are germane to collective bargaining, contract admin-istration, or grievance processing, which is much more re-strictive than the criteria in the notice. Furthermore, the no-tice states that the teacher can appeal to an arbitrator appointedby the union; needless to say, if any arbitrator selected by theunion ever rendered a decision that was inimical to unioninterests, that arbitrator would not be selected again by theunion. In fact, the appeal procedures in this notice have beenruled unconstitutional by the U.S. Supreme Court in ChicagoTeachers Union v. Hudson, 475 U.S. 292 (1986).

Notice to NonmembersNew York State Civil Service Law, Chapter 606, L. 1992

was amended to provide for mandatory agency shop fee de-ductions. In accordance with the amendment, your local willbe making agency fee deductions in an amount equivalent tounion dues as follows.

Pursuant to Chapter 677, Laws of 1977, as amended byChapter 678, Laws of 1977 and Chapter 122, laws of 1978,

IE IP 11 Series: IFIlgencg Fees

you have the right to object to the expenditure of any part ofthe fee which represents expenditures by the Union or its af-filiates (hereinafter "Union") in aid of activities or causes ofa political or ideological nature only incidentally related toterms and conditions of employment.

For the 1997-98 fiscal year, your objections shall bemade, if at all, by individually notifying the Union Presidentby mail during the period between May 15 and June 15,1997.No deduction will be made until after the objection periodhas closed.

Should you object, your fee will be reduced for the 1997-98 school year by the approximate proportion of the agencyfees spent by the Union for such political and ideologicalpurposes, based on the latest fiscal year for which there is acompleted and available audited financial statement. You willbe provided at the beginning of the new school year with anadvance payment equal to the amount of the reductions, to-gether with an explanation as to how such advance reductionwas calculated.

If you are dissatisfied with the amount or appropriate-ness of the reduced fee, you may appeal that determination inwriting and send it to the Union President by mail withinthirty (30) days following receipt of the advance reduction.At such time, you must indicate to the Union President thepercent of agency fees which you believe are reasonably indispute. The question of appropriateness of the advance re-duction will thereafter be submitted by the Union to a neutralparty appointed by the American Arbitration Association forexpeditious hearing and resolution in accordance with its rulesfor agency fee determinations. The costs for any appeal to aneutral party shall be borne by the Union.

The Union, at its option, may consolidate all appealsand have them resolved at one hearing held for such purpose.You may present your appeal in person.

At the close of the Union's fiscal year, as soon as avail-able, the Union will provide you with a copy of the auditedfinancial statements, including the final refund determinationcovering the fiscal year for which your objection was made.

4 8

49

EPO Series: Flgeing Fees

50

lippendiK CLocal Union

Letter to NonmembersAppendix C illustrates the kind of notice sent by local

unions to nonmembers in order to persuade them to becomemembers. Although not as coercive as the state notice, thenotice sets forth an erroneous legal standard for determiningchargeability. Again, the standard is not the teacher's "fairshare of the cost of . . . representation." It is the teacher'spro rata share of costs germane to collective bargaining, griev-ance processing, and contract administration.

4 9

EPO Series: illgency Fees

August 15, 1997

Dear Nonmember,

You are receiving this packet of materials because ourrecords indicate that you are not a voting member of theEducation Association. We would like to have you join us as anactive participating member.

As you know, the United States Supreme Court has ruledthat employees who are not union members but who are repre-sented exclusively by a union may be compelled to contributetheir fair share of the cost of that representation. This payment iscalled an agency fee.

As an agency fee payer, you have certain rights which areexplained in these materials. As a nonmember, you have pre-cluded your involvement in the organizational life of the unionand are unable to have a voice in establishing policies or electingleadership at local, state, and national levels.

I urge you to join your colleagues in membership. As aunion in which individuals elect its leaders and establishes its poli-cies, we can only be as good and effective as our members makeus. While the desire for increased compensation is a given, thiscannot be our only goal. Some of our goals for this year are toreactivate our committees, have more members become activelyinvolved, and work toward changes and improvements with anopen and positive approach.

If you are newly employed in our district, take the time toseek out elected leadership to learn more about us. If you feelthere is an ideological or philosophical reason for you not to joinus, please, come and talk to us about it.

If you wish to change your agency fee status to that of avoting member, please contact me for a membership enrollmentform.

We need you to help make the Education Associa-tion the best it can be. However, if you still wish to retain youragency fee status and receive your refund, you must inform me inwriting by October 1, 1997.

Sincerely,

John SmithUnion President -50

51

IEIP Series: Rgency Fees

52

EndnotesAbood v. Detroit Board of Education, 431 U.S.209 (1977).

2 Lehnert v. Ferris Faculty Association, Ill S. Ct. 1950 (1991).

3 Marquez v. Screen Actors Guild, No. 97-1056, U.S. SupremeCourt, decided November 3, 1998.

4 Steele v. Louisville and N.R. 323 U.S. 192 (1944).

5 City of Madison Joint School District No. 8 v. Wisconsin PublicEmployment Relations Commission, 429 U.S. 167 (1976).

6 See the articles by Edwin Vierira, Jr., in the references.

' Wecn4r v. University of Cincinnati, 970 Fed. 2d 1523 (CA 6th),1992.

8 The NEA Series on Practical Politics is the source; probably onereason the series is no longer available to others.

9 Miller v. ALPA, 118 S. Ct. 1961 (1998).

10 Belhumeur v. Massachusetts Teachers Association AgencyService Fee - 2143, decision rendered April 23, 1997. This casewas still active in the Massachusetts courts as of November1998.

11

12

13

New York Times, June 23, 1993, p. 18.

Ibid.

Article 11, Charter Draft of November 1989. Some members ofthe European Community allow union security provisions thatviolate Article 11. Cited in Sheldon Leader, Freedom ofAssociation (New Haven, CT: Yale University Press), p. 290.

14 The NRTWC and NRTWLDF did not contribute and were notasked to contribute to the content, publication, or disseminationof this report.

51

,

EPg Serties: flgencg Fees

ReferencesBaird, Charles W., "The Permissible Use of Forced Union

Dues from Hanson to Beck," Government UnionReview, Vol. 13, No. 3, Summer 1992.

Basic Patterns in Union Contracts, 13th edition (Washing-ton, DC: Bureau of National Affairs 1992). A goodsummary of how various issues are treated in privatesector labor contracts.

Edwards, Harry T., R. Theodore Clark, Jr., and Charles B.Cramer, Labor Relations Law in the Public Sector, 4thed., (Charlottesville, VA: Michie Company, 1991). Thebest analysis of the legal issues growing out of publicsector bargaining.

Geisert, Gene, and Myron Lieberman, Teacher UnionBargaining (Chicago: Precept Press, June 1994). Ananalysis of the most important issues that must be facedin collective bargaining with teacher unions.

Lieberman, Myron, Public Education: An Autopsy (Cam-bridge, MA: Harvard University Press, 1993). Thisbook argues the case for a competitive educationindustry, and why it will materialize.

Lieberman, Myron, The Teacher Unions (New York: FreePress, 1997). The most comprehensive analysis of theNEA and AFT their policies, revenues, membership,bargaining objectives, political operations, influence,and much more.

Vierira, Jr., Edwin, "From the Oracles of the Temple ofJanus: Chicago Teachers Union v. Hudson," Govern-ment Union Review, Vol. 7, No. 3, Summer 1986.

Vierira, Jr., Edwin, "Communications Workers of Americav. Beck: A victory for Nonunion Employees AlreadyUnder Attack," Government Union Review, Vol. 11, No.2, Spring 1990.

Vierira, Jr., Edwin, "Lehnert v. Ferris Faculty Association:The U.S. Supreme Court Hands Out Another StoneInstead of a Fish," Government Union Review, Vol. 14,No. 1, Winter 1993.

52

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