Is fair share fair?

March 7, 2018

Alan Scott, an Illinois teacher and union representative, provides a lesson in Fair Share 101, explaining the stakes in the Janus v. AFSCME case based on his experience.

LET'S IMAGINE that you're a newly hired teacher in a public school in Illinois.

As it turns out, the certified staff, clerical and other workers are covered by a union in your district. In this example of a suburban Chicago school, the national organization is the American Federation of Teachers (AFT); at the state level, it's the Illinois Federation of Teachers (IFT); there's a local covering a large number of districts in your area; and finally, there's a council for your specific school district.

On the last day of your teacher orientation--in my district, it was three days long--the council president, flanked by building representatives (or union stewards), comes into the room. After a short pitch on why it's important to join the union, the building reps fan out to collect union membership cards.

Inevitably, someone asks, "Do I have to join?"

It's at this point that most teachers will hear the words "fair share" for the first time.

"No, but you'll still have to pay dues."

Huh? It doesn't seem to make sense. You can choose not to join, but you'll still have to pay dues?

Union activists attend the Working People's Day of Action in New York City

"It's called fair share. But if you don't join, you can't vote, and you won't have a voice in things like your contract."

You end up scribbling your name down on the card. Most people do the same.

So is this fair?


THIS IS what's at stake in the Janus v. AFSCME Council 31 case, which is being deliberated by the U.S. Supreme Court.

Fair share fees were made law by the Supreme Court in 1977 in its ruling in Abood v. Detroit Board of Education, which determined that unions could charge fees from employees who didn't join the union if their working conditions are covered by a collective bargaining agreement--as long as those fees aren't used for political purposes.

Fair share fees are mandated in 24 states, including Illinois, but if Supreme Court decides against labor in Janus, these fees would be banned.

What's the rationale for fair share fees?

In a word: Piggybacking.

In the school districts in Illinois where teachers are unionized, for example, people are covered by a union-negotiated contract. Voted on and approved by the rank and file, this contract determines your pay, benefits, various procedures and processes, and evaluation methods--at least in conjunction with labor law, board rules and the Illinois state statues.

In addition to this, each building has a union leadership (the size determined by the number of members in your building) who you can talk to if you want clarification on the contract or if you want representation during discipline meetings--or any meeting with the administration that you reasonably infer may impact your working conditions.

Many members talk to their building representatives to get advice on all kinds of matters, sometimes even asking them to mediate interpersonal disputes between workers themselves.

In each school, our reps meet with the administration every month for a union-principal meeting, where concerns related to the contract, culture and climate, whether procedural or informational, are discussed. The minutes of each meeting are shared with the entire staff. There's also a union report-back and discussion at each building's monthly faculty meeting.

Where I work, these are the most immediate ways you're likely to feel the union's presence in the school. Other unions have a greater presence on the job, especially when rank-and-file members organize to come together, whether it is around a workplace issue or some question of social justice.

Piggybacking is the term for those who would pay no dues and not participate in any union-related activities, but would still be covered by the union-negotiated contract. Everything in the contract applies just as much to them as to dues-paying union members. They reap the benefits of having a union presence in their workplace, without paying a dime.

Fair-share fees are a recognition that there are benefits to working in a union environment, and that no one should be able to take advantage of those benefits--which others have poured sweat and resources into creating for everyone--without paying back.


SCHOOL EMPLOYEES gain something from the union at their building, but there's also a lot going on behind the scenes that new employees probably aren't immediately aware of.

Union officials and staff attend and frequently speak out at school board meetings, participate in union-superintendent meetings, and serve on joint committees to debate and make decisions related to all kinds of issues, such as discipline, calendars, evaluations and so on.

There's also the larger organization beyond the union at the school level--in the case of our thought experiment, the IFT and AFT. It's to these bodies that most of the dues money flows--about nine-tenths of it, in fact.

What happens at the state and national level can feel more remote and, in many cases, invisible. As a building representative, it was five years before I saw our local's field rep, and that was to hear about the Janus case.

Our primary connection to the larger organization comes in the form of a monthly bulletin that appears in our school mailbox. It includes a column from the IFT's president, in addition to updates about what's happening with other locals, pictures and some national news. I'm pretty sure most people throw them away without a look.

That said, irregardless of the relatively decentralized nature of the locals and councils, the IFT/AFT organization, despite their flaws and limitations, are doing things of importance that affect the working conditions of the rank and file.

They maintain a staff of part-time and full-time employees, as well as field offices and union halls scattered around the country. There are conferences of various types, including an annual conference, where delegates vote on proposals.

The IFT/AFT organization offers training opportunities, discounts and deals with various businesses, liability insurance--and attorneys in the event you get sued in the workplace. Many members are surprised to find out that they aren't necessarily protected by the district in such circumstances.

But what most immediately comes to mind in regard to the main function of the larger organization is that it fights state and national policy fights, lobbying and seeking to influence politicians, for what that's worth. It's here that anti-union forces have targeted their legal attack on fair share.


THE FIRST Amendment protects against compelled speech. Fair share opponents argue that money is a form of speech, as Citizens United determined, and therefore, fair share fees, since nonunion members have to pay them even though they haven't joined the union, are a form of forced speech.

"The union is not my voice," Mark Janus, the plaintiff in the Janus case and a child support worker for the Illinois Department of Healthcare and Family Services, wrote in the Chicago Tribune.

Conservatives are waging an attack on fair share with claims that members' money is being used to support the Democratic Party, but the fact is that unions have little direct influence on elections or the behavior of Democratic candidates.

As Kim Moody points out in his book On New Terrain: How Capital is Reshaping the Battleground of Class War, in 2014, Democrats spent $734 million on congressional campaigns. Of that, 28 percent came from political action committees--and of that fraction, less than a quarter came from unions. Businesses account for two-and-a-half times as much spending on elections.

What the anti-union haters really hate is that unions give workers a voice--the fair share lawsuit is a convenient cover for trying to undermine union power.

The case began with multimillionaire Illinois Gov. Bruce Rauner, who--along with a network of anti-union special interest groups such as the National Right to Work Legal Defense Foundation and the Illinois Policy Institute--found Mark Janus, a public employee willing to attach his name to the case to move it forward.

If you ask my union about the use of dues for political purposes, they'll tell you that none of the dues gets used for political purposes. They'd say that money going to candidates and campaigns is provided through a separate fund called COPE (Committee on Political Education).

Money going into this fund comes from authorized payroll deductions or voluntary contributions. A small portion goes to the IFT, which is legally permitted to use this money for political purposes, but fair share members can petition for reimbursement.

In my opinion, this isn't the most compelling argument, especially if you don't limit your definition of "political" to giving money to candidate--as opposed to, say, organizing member mobilizations in the community, etc.


SO WHAT will be the consequences if the justices rule against labor?

If over 50 percent of members in a district decide to leave the union, the district no longer has to recognize that union.

A call to strike would already be divided between members and nonmembers, not to mention all mobilizations and mass campaigns that would be similarly impacted.

Union leadership will still have to represent nonmembers in discipline meetings and grievance proceedings, since non-dues-paying members would still be covered by the contract.

Large unions will probably lose many of their full- and part-time employees, and their ability to fight over state and national policy would be severely affected.

When I first heard of the Janus case, I was immediately reminded of the two-faced Roman god who looks to the past and the future, and is connected to beginnings, transitions and endings.

I wasn't the only one to have made this connection. Some have made much of the fact that the advocates of the case are "two-faced," claiming to support teachers and staff when in fact they are in opposition to them.

What Janus reminds me of instead is the dialectic. In the dance of the dialectic, the second step is that of dialectical reason, in which you analyze a situation from a vantage point opposite to that of the first. Janus' face, looking in opposite directions, seems to beg for this to take place.

How do unions come out of this stronger, whether against further attacks like Janus or in realizing their potential as vehicles for the expression of working-class power?

Unions will have to work harder at engaging, activating and mobilizing their rank and file and making their advantages clear and obvious to all. This means every member having a role and being brought into motion, communicating and responding better, connecting to the community, fighting and winning real fights, and becoming truly member-driven.

In short, it means creating the conditions in which a newly hired teacher in a public school in Illinois, when asked to join a union, grabs that card and signs it without hesitation.

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