By Kevin Mooney | The Daily Signal
Just a few weeks before school let out last May, unexpected visitors showed up in Bethany Mendez’s classroom.
They didn’t come to discuss the nuts and bolts of education or the work the teacher was doing to assist young students with learning disabilities.
Instead, the visitors wanted to know why she was leaving the teachers union, and if she fully understood the ramifications of resigning her membership.
“This made me very angry and upset to actually have them come to my classroom during instructional time during the day,” Mendez told The Daily Signal in an interview. “I thought the meeting was regarding a student who might have to go into one of my classes. But these were union representatives who showed up in my classroom to question me as to why I was leaving the union.”
Mendez teaches elementary school students with learning disabilities in California’s Fremont Unified School District.
Since she had her own bouts with dyslexia when she was roughly the same age as her students, Mendez explains, she became motivated to become a teacher and devote herself to assisting children who require specialized instruction.
For union officials to interrupt her instructional time, Mendez thought, was inappropriate and overly intrusive.
“I struggled with dyslexia when I was little, and that was due to a vision problem,” Mendez, 35, said. “But I was able to have surgery to fix it. For a lot of these kids, it’s a brain-wiring issue and it involves how their brain interprets visual information. My goal is to help children learn and to avoid the embarrassment of not being able to read in the third and fourth grades. I’m passionate about helping kids to bridge that gap.”
“It would be fine to have a friendly conversation outside of class, but to actually have two people come to my class while I was teaching and ask these questions I thought was a little offensive,” she said. “They asked if I knew what I was doing and if I knew what I would be giving up. My answer is I think everyone should have a choice to either opt in or opt out of joining the union.”
Suit Claims Unions Circumvent High Court
Last June, in a 5-4 ruling, the U.S. Supreme Court struck down mandatory union dues and fees for public sector workers.
In their decision in Janus v. American Federation of State, County, and Municipal Employees, the justices said “agency shop” laws requiring nonunion government workers to pay union fees violate the First Amendment rights of workers who object to the political agenda of public employee unions.
In March, Mendez joined with four other teachers to file a class-action lawsuit in federal court against the California Teachers Association and several local affiliates, alleging that the teachers unions continued to deduct dues from their paychecks in violation of the Supreme Court’s Janus ruling.
The lawsuit also names the National Education Association, California Attorney General Xavier Becerra, local school districts, and local unions as defendants.
Contrary to what union officials have argued, the teachers who signed union membership cards last year did not provide the California Teachers Association or local affiliates with “affirmative consent” to deduct dues, Mariah Gondeiro, a lawyer with the Freedom Foundation who represents the suing teachers, told The Daily Signal.
“These membership forms don’t include sufficient waiver language as required under Janus,” Gondeiro said, adding:
The unions are arguing they can lock people into these contracts because they signed these forms. But they don’t tell employees that they have an option to not fund the union. They don’t tell people that they are leaving out important facts. The teachers can’t consent to something they didn’t know about, and they did not know their rights.
Frank Wells, a communications official with the California Teachers Association, responded in an email.
“This is just another lawsuit from the Freedom Foundation to continue their attack on public education and public employees,” Wells said. “Their backers have a lot of money to spend so it’s likely these and other attacks will continue. I’d follow the money. That is the real story here.”
The National Education Association did not respond to requests for comment.
The Daily Signal also sought comment on the lawsuit and specific allegations from two local unions, the Fremont Unified District Teachers Association and the Hayward Education Association, by phone and email.
Hayward union officials referred a reporter to the state union, while the Fremont local acknowledged the request for comment and said it would be forwarded to the local’s president.
The Daily Signal also asked the California Teachers Association’s Wells whether he would like to respond on behalf of the local unions. He had not commented further at publication time.
Supreme Court and ‘Affirmative Consent’
Under the high court’s Janus ruling, teachers and other public employees must offer “affirmative consent” before a union may withhold fees from their paychecks, Gondeiro said.
In his opinion for the majority, Justice Samuel Alito said automatic deduction of union fees from a nonmember’s wages without consent violates free speech rights.
Freedom Foundation, a free market think tank based in Washington state, filed an amicus brief in the Janus case asking the Supreme Court to outlaw “opt out” arrangements that put the burden on nonmembers to halt collection of union fees from their paychecks.
Public employees must make a deliberate choice to “opt in” to paying union fees, Alito said on behalf of the court majority, writing:
Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.
The Janus ruling affects about 5 million government employees in 22 states who no longer are required either to join a union or pay related fees as a condition of employment.
Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, was the lead plaintiff in the lawsuit and gave the case its name.
“The opt-in requirement is something the Freedom Foundation really advocated for before Janus was decided,” Gondeiro said, adding:
The reason why is because unions are in a powerful position, and history shows they take advantage of vulnerable workers. So we wanted to make sure that the court put the burden on these powerful entities to obtain workers’ affirmative consent. Because if we didn’t, then they would just have taken advantage of workers, which they have done in the past. What’s remarkable is that even with the burden being put on the unions, they are still trying to circumvent the law.
‘All About Janus’
“I didn’t know anything about the Janus case and didn’t know that it was a possibility,” Mendez said. “I also didn’t understand why we needed to reconfirm membership. The forms didn’t make sense to me, because the dues already came out of our paychecks. But now I see that this was all about Janus.”
Union officials eventually persuaded Mendez to sign the “membership recommitment form,” which she did on June 4, 2018, just a few days before the end of the school year and a few weeks before the high court’s Janus ruling.
She had received a text message from local union officials urging her to sign up until the last few days of school.
“I was told we needed to stand 100% together to defeat a law that would destroy unions,” Mendez said:
That’s the information I got. I’m not anti-union. I think they do some good, especially my local union. I’m pro-individual rights and pro-teacher. But what I was told was not the truth. Janus does not destroy all unions. They [union leaders] did not provide us with an opportunity for informed consent, and that’s what this case is about.
Mendez says she attempted to opt out last fall from the California Teachers Association and her local union.
But there was a catch. Because Mendez signed the membership recommitment form, union representatives informed the teacher that she was locked in until this coming June. The form contained “fine print” and “a clause” that said teachers could withdraw from membership only during a 30-day window beginning when they signed the form.
$10 Refund for Political Activity
Audrey Stewart, a fellow plaintiff who teaches in Hayward Unified School District, says she is familiar with the tactics unions use to keep dues and fees flowing in from teachers who prefer not to be members.
Stewart said she also has a hard time believing that her union spends only about $10 a year on politics.
Stewart, a teacher for 30 years, told The Daily Signal that she often has found herself in a hostile work environment because she differs with the political stance of teachers unions on a range of issues.
“I don’t want to pay for the unions’ politics,” she said. “I always said they could represent me as far as employment is concerned, but they shouldn’t have a place in my political life.”
Although unions were required to refund nonchargeable political expenditures that weren’t part of the collective bargaining process even before the Janus ruling, Stewart isn’t convinced the amount of her refunds measure up with what the unions actually spend on politics.
“They have been issuing this $5 bill to me twice a year, and I have to go down to the office of my local union and pick it up because that’s what they are claiming is the [refundable] amount spent for political purposes,” Stewart said. “So, they are saying it’s basically $10 a year they spend on politics. This is really a joke. This has been going on for 30 years, and I find it odd that it’s never increased either. It’s always a cash payment in an envelope.”
Stewart says she signed her membership recommitment form on May 9, 2018, at the behest of union officials. The form said it was necessary for her and other teachers to sign to support colleagues.
“There was no rhyme or reason to these recommitment cards,” she said. “I signed it because I was told it was to support my fellow teachers. But I later told my union representative that I found this recommitment form awfully suspicious because they front-loaded this knowing this [Janus] case was coming and it might not go in their favor, and they have locked these teachers in. I don’t even know if this recommitment form was a legal membership document.”
Gondeiro, the lawyer with Freedom Foundation, told The Daily Signal that the forms signed by teachers last year should not pass legal muster.
“What we are doing with the class-action suit is we are trying to illustrate what affirmative consent looks like,” she said, adding:
We are trying to take Janus to an extra step because apparently the unions can’t abide by the law. So, we want to put in plain text what type of notice they have to give workers, because they need all the direction they can get. We want in the contract that they have a right to not financially support the union, and [that] by signing the agreement they are waiving their First Amendment rights. If they don’t include that type of language in the contract, there is no affirmative consent.
Gondeiro also said the unions are making it difficult for teachers who have become aware of their rights to opt out, using restrictive window periods and other cumbersome requirements that involve writing letters to union representatives and payroll personnel saying they want to leave the union and stop automatic deduction of dues.
“I sent letters to the California Teachers Association and to my local telling them I was going to opt out,” Stewart said. “They wrote back to me to thank me for my inquiry. But I wasn’t inquiring, I was telling them I was leaving.”
Stewart, who teaches at both the elementary and high school levels, told The Daily Signal that “strange incidents” took place after she made it clear she wanted to leave the union.
Her elementary school classroom was “ransacked” several times after hours in February, Stewart said, and around this time she was “verbally attacked” by a union leader while walking up a path to the high school.
The lead plaintiff in the teachers’ lawsuit says she wants to make a clean break.
Mendez, who is entering her 13th year as a teacher, says she had wanted to withdraw from the California Teachers Association, but until recently was content with her local union.
“The CTA has always misrepresented me, but I was willing to stay in the local union,” she said. “But after they [the local union] withheld information, misled us, and accepted poor salary and benefits in my district, I wanted out of both the state and local union.”
The local unions and school districts named in the lawsuit include Fremont Unified District Teachers Association, Valley Center-Pauma Teachers Association, Hayward Education Association, Tustin Education Association, and the Fremont, Valley Center-Pauma, Hayward, and Tustin unified school districts.