Viewpoint: To Thrive after Janus, Deeper Changes Are Needed

In April the New York State Legislature passed, and Governor Cuomo signed, a change in the state’s public-employee labor relations laws regarding the legal Duty of Fair Representation. Public sector unions are no longer required to represent non-members in grievances, investigations, hearings regarding allegations or charges, or appeals of ratings.

This is very important, because New York is the state with the highest union density and the greatest absolute number of union members. Over half those members belong to public employee unions.

Should New York unions negotiate to incorporate these changes into contract language? I will consider some examples from my own union, the United Federation of Teachers. It’s the largest public employee local in New York state (if not the world) with more than 100,000 active (non-retiree) members.

UFT General Counsel Adam Ross told the labor newspaper The Chief, “We’re not going to provide you services that we are not required to.”

PROS AND CONS

One argument for denying services to non-members is to keep the union’s books balanced by cutting costs in response to the lack of dues income from free riders. Members may resent paying for what others get for free, and be tempted to drop membership themselves. And the change could motivate more people to retain membership in order to maintain these protections.

On the other hand, an argument for voluntarily keeping the existing rules for representation is that if non-members cannot effectively enforce their contractual rights, it erodes working conditions for everyone, members and non-members alike.

If non-union teachers cannot protect themselves from oversized classes, teaching a longer day, or more classes than the contract allows, it affects the entire staff, including union members. It could undermine instruction and put pressure on union teachers’ conditions as well.

Finally, having two categories of protection for teachers incentivizes administrators to favor non-union teachers in hiring and in ratings, since they can get more “productivity” out of them.

MEMBERS ARE CONCERNED

I expected the rank-and-file activists in my large Brooklyn high school to support the change in DFR when I shared with them an earlier piece I wrote arguing in favor of it. To my surprise, none who read it agreed with me. Here is some of their written feedback:

“[The change] would create an unfair division of worker representation—favors the boss/principal and would produce different working conditions… ‘Union and non-union workers developing adversarial attitudes and behavior towards one another.’ I see this happening for sure...”

—16-year teacher, member of the volunteer school “Janus Committee” charged with signing people up to continue union membership after Janus.

“Separating out who can and can’t be represented in a grievance seems to me worse in every respect.”

—15-year teacher, UFT Delegate

“Would create tiers of teachers within a school… more people infighting.”

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—12-year teacher, member of the school-based UFT Committee and of the school “Janus Committee”

“I worry about what administrators might be able to get away with… Put 40 students in a non-member’s class, and if there are enough non-members in a building, why wouldn’t they feel they could do the same with union members?”

—20+ year teacher

FLORIDA MEMBER NUMBERS ARE WEAK

Would creating this cost to non-members motivate them to join the union? We have a test case in “right-to-work” Florida. In 1979 it passed a very similar amendment to its state labor law. Almost 40 years later, what has been the effect on membership retention?

Jeffrey S. Solochek in the Tampa Bay Times reports that in some of the state’s larger school districts, including Miami-Dade, fewer than half the represented teachers are union members.

So although the Florida arrangement may help unions to balance their books in the short run, it may allow a hemorrhaging of membership and a weaker union in the long run.

UFT HAS BIGGER PROBLEMS

As far as the UFT is concerned, withdrawing representation in grievances is unlikely to give teachers enough reasons to be members because contractual workplace protections are incomplete, and the UFT has not consistently enforced existing provisions. My experience is that this situation is not unique but common to many public employee unions.

While withholding full representation from non-members could further weaken protections for all, already there are wide swaths of the UFT bargaining unit in which the contract is simply ignored, and many more in which it is observed very unevenly. For decades, the UFT’s interest or ability to protect teachers from administrators or supervisors through the grievance process has been declining.

The 2003 (passed in 2005) contract gave up the right to grieve “inaccurate or unfair material” in a teacher’s personnel file. Almost all grievances are lost at Steps 1 and 2, where the decision is rendered by the employer, and only a small fraction are taken to the next step, arbitration. At Step 2, union representatives don’t always contact the grievant beforehand, and often seem confused over the facts of the grievance, and sometimes even the contract itself.

In disciplinary hearings, the UFT trains Chapter Leaders (the equivalent of the schools’ shop stewards) that their role is to “protect the contract, not the member.”

Harassment cannot be grieved, and its ostensible contractual remedy cannot be initiated by the victim, only by union officials, which they almost never do, regardless of the evidence.

Thus, the UFT does not provide enough support for protection against employer attacks, so giving up union representation in hearings could seem a very small “cost” to the member considering whether to stay in or to a new hire deciding whether to join the union.

THE TRANSFORMATION WE NEED

To make union membership attractive, the UFT cannot simply cut out protections for non-members. It would need to transform its culture so that a non-member would be missing out on a robust grievance fight.

The UFT also needs to change in order to recruit the growing number of new teachers. New hires face, at minimum, a four-year probation, during which many union rights either do not apply or cannot be enforced. And in many schools there is no elected union officer to connect with them. UFT’s transformation would require a campaign to make sure every school had active, elected school-based union reps to meet and recruit all new hires.

The UFT should also be looking at the other side of the equation—reducing the literal cost of union membership. It should consider reducing union dues, especially for new, probationary teachers. Starting pay can be as low as $54,000, and union dues are relatively high, more than $100 a month.

The dues could be lowered by reducing union staff and staff salaries. This too would require a cultural transformation of the union, which currently relies on patronage jobs to assure recruitment and loyalty to the leadership caucus.

RELYING ON THE BOSS IS DANGEROUS

A final argument against taking advantage of the legal change in DFR is that it can only been done as long as allowed by the government, which is also the employer. This reliance on the employer could make union leaders even less likely to stand up to the boss, in order to safeguard that cooperation.

Yet even if unions avoid conflict, employer cooperation is unreliable. Again, let’s look at Florida, where the state changed DFR in 1979. This spring Florida’s legislature passed new rules requiring a local union to prove that it represents a majority of teachers in its district, by showing that at least half the eligible employees were actually paying dues. As a result, many districts are facing decertification.

The change in DFR may have made these unions complacent as membership sagged. New York unions should take this as a cautionary tale and avoid these pitfalls altogether.

Equally representing all workers in the bargaining unit provides motivation for the union to recruit all workers as dues-paying members. Relying on changes to the DFR not only makes the union dependent on the cooperation of “friendly politicians,” but it also has not, in real life, been an effective way to retain a good level of union membership.

To thrive after Janus, public-employee unions like the UFT must undergo a more radical transformation.

Marian Swerdlow is a member of the United Federation of Teachers who has recently retired from teaching high school.