California Teachers' Unions Sue Over Mailbox Electioneering

The Contra Costa Times is carrying this report (hat tip: Mike Antonucci) about a California case that could have far reaching implications for union sponsored political activity in the workplace.

The legal battle stems from the actions of a couple of school districts in California refusing to allow unions to disseminate political material and endorsements via the schoo provided mailboxes for teachers. Under state law, the schools must allow the unions to distribute messages about contract negotiations and grievances via the teachers' mailboxes, but some unions also use the mailboxes to spread candidate/ballot measure endorsement messages and other political messages. What is really at stake here? This sums it up pretty well:

If union lawyers successfully reshape the reading of the law surrounding teacher mailboxes, the CTA could gain significant political advantage by creating a legal way to influence its 340,000 members where they work.

Laywers for teh school boards question whether such political messages belong in these employer provided mail services and the unions couch it as a free speech concern, arguing that the prohibition is content based discrimination, generally probhibited by free speech clauses.

Make no mistake about it, the ban on political messages in teacher mail boxes is content based discrimination and the schools rightly question whether the use of school provided mail boxes should be used to promote a political agenda. The lower court decision:

In May 2006, Judge Winifred Smith ruled in favor of the union, citing the California Constitution.

"Barring speech simply because it is political is prohibited as a content-based restriction," Smith wrote.

According to Smith, the labor board and school districts have misread the Education Code governing public funds and campaigning. The statute was designed to prevent school districts from using public money on endorsements, Smith argued. If unions produce and distribute partisan fliers on their own time, little to no public money has been spent.

"Here, the 'use' of public funds is nominal, at best," Smith writes. "The mailboxes exist. There is no cost or use of public resources over and above the normal costs of the mailboxes which is incurred by the District on account of SLTA's use of the mailboxes."

Whether you accept Judge Smith's ruling or not, the question remains, should the school board be obligated to allow unions to spread their political message via school mailboxes?

But this case is not simply about a dispute between the California Teachers Association and local school boards, but has much broader implications for the ability of unions to use employer/corproate resources to spread the union's political message.

For example, under FEC rules a corporation may only solicit union members who are hourly employees twice a year. Furthermore, if a corporation uses methods to collect funds from its employees, such as payroll deductions, must also make such methods available to a union that represents a group of employees. Upon written request, those facilities of the corporation must be made available to the union and the union must reimburse the employer for the use of those facilities. See, FEC Campaign Guide for Corporations and Labor Organizations, p. 26. See also, 11 CFR 114.5(b) and 114.5(l).

But the exception to the rule is that if the employer does not have a PAC, under 11 CFR 114.5(k), that employer is not required to provide a mechanism for the union to solicit contributions to the Union PAC.

Other FEC rules permit a corporation or labor union to dessiminate political messages to their respective soliticable classes at any time. See, generally the FEC Guide for Corporations and Labor Unions, Ch. 3. For the corproation, the restricted class is usually management and professional employees like lawyers or accountants, but not employees represented by a union. For a union, the solicitible class is the members of the union. Usually, in a corporation that employs union personnel, the two classes won't mix.

But public employee unions are different in that their employer--i.e. the government, does not have a PAC nor can they, like in California's case, expend public monies for political purposes. Can the use of already provided mailboxes, even though the cost for the use of the boxes by the union is neglible, it is a non-zero amount. Under the aforementioned FEC rules, an employer may not waive reimbursement by the union for the use of corporate resources or else the services would be considered an illegal contribution.

Assuming for a moment that the California appeals court sides with the unions again, ruling that the schools must permit unions to distribute partisan political material via school mailboxes, what if anything should be the limits to that legal obligation? It is just mailbox distribution? What about email? What about the use of school facilities for union sponsored political activity, not simply meetings of union members?

The most likely balance that will be struck by the court is that the school board must allow the union to use the school provided mail boxes, but the union must reimburse the school for boxes' use at some reasonable rate.

Corporations have little to fear. Unions could sue to force private employers to allow the use of corproate resources to disseminate their own political message? But, since private entities are generally exempt from free speech rules, it is unlikely that such a suit would be successful

But when the largest and most rapidly growing union membership is in the public sector unions, could the California decision force taxpayers to subsidize, even minimally, the political activity of unions? This is the broader question that goes beyond the dispute in California.