Friday, June 26, 2015

Compelling Teacher's Conscience in Pennsylvania School

Sometimes you'll bother watching tennis, or table tennis (don't dare offend real players by using the belittling "pin-pong"). But if you do, and if you take the approach of closely watching the ball, rather than leaning back and taking in the entire field of play, you get that neck pain from the back and forth, back and forth.

Coerced payments to unions can cause a mental version of that neck pain. After all, as Thomas Jefferson said, in his proposed and adopted Virginia Statute for Religious Freedom,  "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical." Yet, when a worker is compelled by a constellation of factors, including state laws permitting closed shops and National Labor Relations Board recognition of particular unions as the authorized collective bargaining agent for workers, she will, in fact, be compelled "to furnish funds for the propagation of ideas [s]he disbelieves and abhors...."

Here's an example of what unions do with dues that falls entirely outside the scope of collective bargaining:  "AFL-CIO Files Supreme Court Amicus Briefs to Support Marriage Equality." That's the headline of a page on the AFL-CIO webpage. Now, suppose you are coerced to pay union dues. You might wonder, if you disagree with the position taken by the AFL-CIO on the question of same-sex marriage equality, why it is okay to compel you to furnish funds for the propagation of ideas you disbelieve and abhor.

In Pennsylvania, in a school district with a closed shop, a teacher with more than three decades teaching foreign languages is currently asking that very question. Lisa Misja teaches in Armstrong County, Pennsylvania's Apollo-Ridge High School. She objects to paying union dues on religious grounds. The Pennsylvania State Education Association does not dispute the validity of her religious objection. Because of a state law, Misja is required to pay the equivalent of union dues amount, which are collected by the PSEA and are, by state law, supposed to be paid over to a charity chosen by Misja and agreed to by the PSEA. For three years, the PSEA has refused to send her contributing amount to the Pennsylvania Coalition for the Unborn Child or the National Rifle Association. The Fairness Center has now brought suit against the PSEA on Misja's behalf to force the union to make the payments.

To better understand the problem with what the PSEA is doing, consider the following:

Public schools in Pennsylvania are GOVERNMENT schools. Their employees are GOVERNMENT employees. When a school district agrees to enter into a closed shop agreement with the union that is recognized by the NLRB to represent GOVERNMENT employees, it does not transform the employee into a non-GOVERNMENT employee, it does not transform the job into a NON-GOVERNMENT job.

So here it is. The School District compels teachers to be members of the Union.

Past decisions of the Supreme Court have construed the First Amendment to protect a right to freedom of association. That "freedom of association" expresses itself in at least two polar ways: those with whom we just to associate, and those with whom we chose not to associate. As a consequence, while employees may be compelled to pay the equivalent of the cost of union dues, they cannot be coerced actually to join and be a member of a union.

Past decisions of the Supreme Court have also construed the First Amendment as guaranteeing union objectors to be protected from being coerced to contribute to the union in amounts over and above the cost of negotiation and representation costs. You may not have realized it, but as I noted above, many unions collect more in union dues than the cost of representation in collective bargaining. The amounts over and above representation can be used for a variety of things. One thing that unions have done, though, is engage in broad programs of social advocacy. And, with respect to the use of YOUR MONEY THAT YOU EARNED THROUGH YOUR LABOR, the Supreme Court has held that the Freedom of Association protects conscientious objectors from having those "over and above" costs used by the Union for political advocacy.

So, while the Court has held that individuals can be compelled to pay the costs of collective bargaining (but not the over and above advocacy costs), in Pennsylvania, the law provides that, where a collective bargaining agreement requires it, an objecting non-union member must pay the equivalent of the union dues as a Fair Share Charitable Contribution. Pennsylvania requires that such fees MUST be contributed to a CHARITABLE CAUSE AGREED TO BY THE UNION AND THE NON-MEMBER. (As an aside, I should mention the law requires that the contribution be made to a NON-RELIGIOUS charitable cause.)

This case, then, comes from the fact that the Pennsylvania State Education Association and the teacher HAVE NOT AGREED ON the charity chosen by the teacher. Misja's choices -- the Pennsylvania Coalition for the Unborn Child and the National Rifle Association -- have not been approved by the PSEA. For that reason, the PSEA has withheld her contributions in an interest-bearing escrow account.

The lawsuit will bring into sharp focus, if it is allowed to proceed, this culturally odd solution, potentially unconstitutional in nature, offered by the Commonwealth of Pennsylvania when it permits the creation of closed shops in GOVERNMENT employment but seeks to assuage conscientious objectors AND THE CONSTITUTION by creating what is now proving to be an unworkable system of COERCED CHARITY.