Fayette County School Board Ponders "Reverse Dues"

Fayette County Superintendent Tom Shelton recently agreed to have the Board of Education consider "reverse dues" for FCPS employees.

"There has just been a request from KEA for us to look into reverse dues or opt out rather than opt in on dues. Several districts already do this. We are looking into it but have made no decision."

The discussion drew a strong response from one KSN&C source who seemed to think it was already a done deal. Citing KRS 337.060 and 337.990 our source claimed that "...it is unlawful and can carry an extensive penalty to the District to withhold wages without getting EXPRESS AUTHORIZATION to do so." (Emphasis in original) Our source also claims that Jefferson County's collective bargaining agreement was fiscally unsound (a point we do not understand), and that no one in the district supports such a decision (a point we recognize as hyperbole).

As a newly hired teacher if I see any type of dues taken out of my check, [W]age & [Hour will be the first to hear about it. I should NOT have to be forced to "opt out" when I NEVER gave permission to "opt in."

KSN&C asked FCEA President Jessica Hiler to give us her "best rationale" for districts going to this procedure. She responded,

We are very fortunate in that the Fayette County Public Schools and the Fayette County Education Association have a very good working relationship and mutual respect. Reverse dues check-off is a policy that allows every NEW employee (certified and classified) to be assumed a member of the Kentucky Education Association. The employee would have association dues deducted from his/her paycheck unless they sign a waiver stating they do not wish to be a member. Employees would need only to contact the FCEA office to request the waiver form.

It is our hope that we can put this process into place for the 2013-2014 school year. We believe that this policy is just a natural extension of the collaboration between FCPS and FCEA. At FCEA we believe that it is important for all parties to work together to create the highest quality school district for both students and employees.

KEA offers teachers and support professionals with benefits such as professional development, legal representation, money saving benefits and a network of colleagues that helps to build capacity for professional growth and leadership skills.

 So, it sounds like no decision has been made, our source would be "grandfathered," and that, if adopted, any employee would be able to opt out.

In related news, I noticed some recent Supreme Court (SCOTUS) activity on union-funded political activities.

Public employee unions took a hit last month when the Supreme Court ruled 7-2 that unions must give workers a chance to opt out of unexpected fee increases or special assessments that all workers are required to pay in agency-shop situations.

KNOX ET AL. v. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000 involved a $12 million 'special assessment' the union wanted for political campaigning. A number of employees at SEIU Local 1000 decided to object to the fee, which was assessed without any notice. California's 9th Circuit sided with the union, but the Supreme Court reversed in a 7-2 decision written by Justice Alito. California law permits public-sector employees in a bargaining unit to decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union. Even employees who do not join the union must pay an annual fee for “chargeable expenses,” i.e., the cost of nonpolitical union services related to collective bargaining. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, a public-sector union can bill nonmembers for chargeable expenses but may not require them to fund its political or ideological projects. Teachers v. Hudson, 475 U. S. 292, 302–311, sets out requirements that a union must meet in order to collect regular feesfrom nonmembers without violating their rights.
"When a public-sector union imposes a special assessment or dues increase, the union must provide a fresh ... notice and may not exact any funds from nonmembers without their affirmative consent," Alito said.

This decision impacts the right of public employee unions to collect money for political activities without giving members an opportunity to "opt out."While the case is not perfectly aligned with the collection of dues, SCOTUS does seem to be signalling their view on opt out provisions.

SCOTUS continues,

Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent. Pp. 8−23.

(a) A close connection exists between this Nation’s commitment to self-government and the rights protected by the First Amendment, see, e.g., Brown v. Hartlage, 456 U. S. 45, 52−53, which creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference, New York State Bd. of Elections v. Lopez Torres, 552 U. S 196, 202. The government may not prohibit the dissemination of ideas it disfavors, nor compel the endorsement of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 382. And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed.See, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 623.

Closely related to compelled speech and compelled association is compelled funding of the speech of private speakers or groups. Compulsory subsidies for private speech are thus subject to exacting First Amendment scrutiny and cannot be sustained unless, first, there is a comprehensive regulatory scheme involving a “mandated association”among those who are required to pay the subsidy, United States v. United Foods, Inc., 533 U. S. 405, and, second, compulsory fees are levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association,” ibid. Pp. 8−10.

(b) When a State establishes an “agency shop” that exacts compulsory union fees as a condition of public employment, “[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis v. Railway Clerks, 466 U. S. 435, 455. This form of compelled speech and association imposes a “significant impingement on First Amendment rights.” Ibid. The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues―rather than exempting them unless they opt in―represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree. Thus, Hudson, far from calling for a balancing of rights or interests, made it clear that any procedure for exacting fees from unwilling contributors must be “carefully tailored to minimize the infringement” of free speech rights, 475 U. S. 302−303, and it cited cases holding that measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest. (emphasis added)