Wednesday, May 19, 2010

Are You Now, Or Have You Ever Been A Member of The SCEA?

Posted By on Wed, May 19, 2010 at 6:22 AM

Im Lookin At You, Mrs. Robinson

A few weeks back, Jennifer Easton (of the News Examiner) wrote a story about the Sumner County School Board's proposal to require teachers to disclose their union membership. The proposal has stimulated quite the outcry from the Sumner County Education Association, who has, according to Easton's article, promised a lawsuit if it moves forward. However, before getting into the legality of such a proposal (were it to pass), you need some background.

The short version: Tennessee is kind of schizophrenic when it comes to unions.

The basic split in this country is between "right to work" and union states. In this case, the "right to work" descriptor is, in some sense, a misnomer in the way that "right to life" means (in large part) "anti-abortion." Here, "right to work" means "anti-union." I had always heard that Tennessee was a pretty staunch "right to work" state, and in other fields, we might well be. However, it's clear that as regards education, some states go further than others.

Take a look at this map created by the National Council on Teacher Quality. In most of the country, collective bargaining with teachers is mandatory. In some states, like Tennessee, collective bargaining is permissible, so long as the union meets certain criteria (50 percent membership). There is also a small group of Southern states (Virginia, North Carolina, South Carolina, Georgia, and Texas) where collective bargaining with teachers' unions is illegal.

In education, these are truly the "right to work" states. Tennessee is something different.

In Tennessee, we have the the "Education Professional Negotiations Act" (T.C.A. § 49-5-601 et seq.). Created in 1978, the Act allows (and encourages) the formation of teachers' unions to negotiate salary, benefits, and other policies:

It is the purpose and policy of this part, in order to protect the rights of individual employees in their relations with boards of education, and to protect the rights of the boards of education and the public in connection with employer-employee disputes affecting education, to recognize the rights of professional employees of boards of education to form, join and assist professional employee organizations to meet, confer, consult and negotiate with boards of education over matters relating to terms and conditions of professional service and other matters of mutual concern through representatives of their own choosing, to engage in other activities for the purpose of establishing, maintaining, protecting and improving educational standards and to establish procedures that will facilitate and encourage amicable settlements of disputes.

However, Tennessee doesn't require collective bargaining, as many other states do. In order to bargain on behalf of teachers, a union has to be officially recognized, the process for which is covered in § 605. Essentially, any union that wants to represent teachers must request recognition by the Board of Education, by presenting signed member cards of 30 percent or more of the professional employees in the district. After this, a secret ballot election is held, where 50 percent of the professional employees must vote to accept the union (there's also provision for a run-off is several unions are vying for the right to represent the employees). If the union gets 50 percent or more, then it becomes the negotiating body on behalf of the teachers and other employees.

Here's the crucial bit (from § 605(c)): "The initial recognition will be for twenty-four (24) months and will be automatically extended for additional twenty-four (24) month periods . . . ." Essentially, this provision puts unions in charge indefinitely once they've been initially recognized, unless they're challenged. And that's where the latter part of § 605(c) comes in:

[The recognized union keeps getting automatic extensions] . . . unless between October 1 and October 15 of the second twelve (12) months of any recognition period:

(1) The board of education challenges and substantiates that the recognized organization does not, in fact, possess a majority of the professional employees as paid members; or

(2) Another professional employees' organization files application for recognition with the board of education, together with signed petition cards that constitute a majority of the professional employees. In such event, an election between the competing organizations will be held according to subsection (b).

And there's the problem, at least for some. If, for whatever reason (general distaste for unions included), the local school board wants to remove the union as a bargaining agent, it only has a two-week window every two years to do so. As well, not only must it challenge the union on its 50 percent membership number, but it must also substantiate that claim. How else, the Sumner County School Board is probably wondering, do we find out if the union has less than 50 percent membership other than asking the employees if they're members? And that's the crux of the debate.

According to Easton's story, the Sumner County Education Association is threatening to sue of the Board pursues the policy. Indeed, in a memo that went out to union members (h/t Sumner County Public Education blog), SCEA President Mary Pappas, calling for members to rally at the May 4 study session, wrote:

Additionally, Mr. Fussell is pushing a policy concerning recognition of SCEA as the bargaining unit. He has stated that state law is not sufficient. He has been told that the proposed policy is illegal, however he insists he is right!

The question is: If a suit is filed, does the SCEA/TEA have a leg to stand on?

Maybe.

Here's the thing: The Supreme Court has a long history, mostly founded on cases dealing with anti-communist and anti-civil rights crusaders, of protecting organizational membership lists. See, e.g., N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958). However, there are more pertinent cases than the broad "membership list" cases that follow the N.A.A.C.P. line. These cases deal specifically with the First Amendment freedom of association rights of teachers.

The first, and highest, case on point is Shelton v. Tucker. 364 U.S. 479 (1960). In this case, teachers challenged an Arkansas statute that required them, as a condition of employment, to disclose the names and addresses of all of the organizations to which they belonged or contributed within the previous five years. The Supreme Court went on to strike down such a statute, but ONLY because it was not narrowly tailored to the governmental interest involved:

The question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited.

. . . In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. Shelton, 364 U.S. at 487-88 (emphasis added).

As with any other "fundamental" right in the Constitution, the government can in fact restrict your First Amendment rights of speech and association. It's just that the government must show that it has a compelling state interest, and that the means are "narrowly tailored" to the ends. As a professor of mine once explained, "You can't burn down the building to kill the rat."

In Sumner County, however, it looks like the board will (presumably) have a pretty narrowly tailored policy. The Sumner County School Board won't be inquiring into all organizations in which a teacher is involved; it simply wants to know, for policy purposes, whether teachers are union members. That kind of question doesn't even need a detailed answer. It's simply a yes or no. That seems like a pretty narrowly tailored inquiry to me, and one that would likely pass the test implicit in Shelton v. Tucker.

There's more bad news for the union, however, albeit from a case outside the 6th Circuit or Tennessee. That case is Opie v. Denver Classroom Teachers Ass'n. 701 P.2d 872 (Colo. Ct. App. 1985). There, teachers who wished not to have union dues automatically taken from their paychecks had to sign a revocation form provided by the union. Several teachers challenged the policy, at least in part on First Amendment freedom of association grounds, claiming "the exercise of the requirement that they follow the revocation procedure in order to avoid payment of the DCTA dues requires that they disclose their ideological preferences and is thus violative of their freedom of association and expression." Opie, 701 P.2d at 874. The court disagreed:

There is no allegation that plaintiffs must reveal any political or ideological affiliation or associational tie other than non-membership in the DCTA, nor that those exercising the opt-out provision are subject to harassment or reprisals. The failure of plaintiffs to allege the manner in which their associational rights are impaired by the opt-out provision of Article 31-3 distinguishes this case [from other "membership" cases]. Plaintiffs' allegations are thus insufficient to state a prima facie claim of a violation of their right of free association and expression, and dismissal of this claim was therefore proper. Opie, 701 P.2d at 875 (emphasis added).

There's the crux of the matter. Though the reasons behind the policy may offend union members, and teachers might be unhappy about disclosing their union status, the Colorado court recognized that mere disclosure of membership status is unlikely to impair any associational rights that go along with belonging (or not belonging) to a union. At the very least, this is precisely what the SCEA will have to flesh out and argue in any lawsuit that they might bring.

Finally, one case out of Nashville sheds a bit of light on the Middle District's stance on privacy rights as they relate to union membership. In International Union v. Garner, the mayor of Pulaski, TN, its police chief, and two police officers were sued for showing up outside union meetings, writing down tag numbers, researching who was there, and reporting that information to the owners of a Maremont plant that was undergoing an outside effort to unionize. (I can't help but think of the scene at the beginning of The Godfather.) 601 F. Supp. 187 (M.D. Tenn. 1985) Though the case does not touch on First Amendment issues, the court found nothing wrong with the behavior, and no violation of the law.

Why the union failed to bring claims under the First Amendment I'll never know. But the court, under Judge Wiseman, was unwilling in the end to find an invasion of privacy. Such a ruling, though not directly related to First Amendment jurisprudence, surely sheds at least some light on the position of Tennessee courts when it comes to privacy claims filed by unions.

Beyond Sumner County, the outcome of this potential battle could certainly have ramifications for Nashville. The cries of MNEA "obstructionism" are quite familiar to anyone following education matters in Nashville, as are the occasional questions as to whether the MNEA actually has its 50 percent membership among the teachers (many — most? — principals are not members). If such a policy passes and is upheld in Sumner County, you can bet that a similar policy will at least be considered for MNPS.

The authors of the Sumner County Education Blog inform me that the policy was not discussed at the May 4 board study session, as board attorney Jim Fuqua wasn't present. It was on the agenda [pdf] for yesterday's board meeting, but so far no news has been forthcoming. For those interested in the increasingly important showdown between unions and school boards, superintendents, mayors, and chancellors, both here and around the nation, this is an important one to watch.

Note: In Easton's story, the Board of Education Chair Mike Fussell was quoted as saying, “So if teachers en mass resigned from SCEA because they didn’t like their negotiated contract with the board, they’d have to wait two years for the opportunity to say they don’t want (the SCEA’s) representation." Technically, he's not right there. According to T.C.A. § 49-5-607, "When the board of education and the recognized professional employees' organization are presented with petitions bearing the signatures of a majority of the professional employees in the negotiating unit indicating they no longer desire to be represented by the recognized organization, an election committee shall be established according to § 49-5-605, and the election committee shall conduct a decertification election by secret ballot in which all professional employees in the negotiating unit will have the choice of voting either for the continuation of recognition or for decertification of the recognized professional employees' organization."

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