Elise Gregg | Editor-in-Chief
In the midst of a slew of state legislation impacting higher education, the Florida Education Association and United Faculty of Florida have filed a federal suit against several commissioners of the Public Employees Relations Commission in response to the latest bill from Tallahassee.
Gov. Ron DeSantis signed SB 256 on Tuesday, May 9, placing new restrictions on public sector unions. It’s a bill that has sounded alarm bells among many, particularly educators, for its new requirements on union membership numbers and due collection, as well as other issues.
The very next day, FEA-UFF held a press conference announcing the federal lawsuit they had filed on May 9 in the Northern District Court of Florida.
“We maintain that this law is unconstitutional on its face, irrespective of any bad motive on the part of the governor,” said Andrew Spar, president of the FEA. “However, we do believe there are bad motives: the governor is using this legislation to retaliate against his critics.”
Some of the notable regulations in SB 256 include removing the ability of certain employee organizations to have their dues deducted from their salary, forcing unions to create a new system to collect dues. However, the bill makes exceptions for law, correction and probation officers as well as firefighters – all unions who have historically supported the Republican party.
That requirement goes beyond just payroll inconvenience – members who don’t transition to a different system would no longer count as due-paying members. This would decrease the number of legitimate members in the union, which could lead to decertification.
When decertification happens, faculty no longer have a collective bargaining agreement and union protection.
“Without my collective bargaining agreement I cannot offer my students the same level of education and training and experience as my peers and colleagues up north,” said Paul Ortiz, a history professor at the University of Florida, during the press conference.
“Without the security of collective bargaining, without the security of an independent trade union which is independent of interference by the state, we’re not going to be able to offer our students those types of opportunities.”
FIU’s union president, philosophy professor Eric Scarffe, echoed those sentiments in an interview with PantherNOW.
“Remember that faculty working conditions are student’s learning conditions: what happens in this fight right now to faculty is going to trickle down to FIU students’ experience of their classroom and of their campus.”
In their complaint, the plaintiffs assert that SB 256 violates union members’ First and 14th Amendment rights, as well as Article I, Section 10 of the U.S. Constitution.
“The Act violates the Plaintiffs’ fundamental right to freedom of speech and association, their right to equal protection of the laws, and their right to be free from legislative impairments of
their contractual rights,” states the complaint.
While the 14th Amendment rights are those of equal protection (and apply to all alleged First Amendment violations through equal protection), the heart of the suit lies in plaintiffs’ First Amendment rights of freedom of speech and association. The suit outlines a few sections of SB 256 that breach the rights of union members.
First is the required “right-to-work” affirmation: the bill requires the unions to include this in membership authorization forms to be signed by prospective members. The complaint calls the message “unnecessary and inaccurate”.
“Compelling those public employees who desire to become members of disfavored unions to sign that affirmation, violates the rights to freedom of speech and freedom of association protected by the First Amendment,” the complaint states.
Further, plaintiffs argue that the requirement for unions to report the disbursements to the five highest-paid officers and employees of each union in the above forms also constitutes a First Amendment violation.
In fact, because Section One of SB 256 mandates that “ PERC prescribe the entire form and content of those membership applications,” the suit asserts that this, along with the other alleged violations, is another First and 14th Amendment violation.
Beyond those violations, UFF and Alachua County Education Association have contracts with the UF and Alachua County Public Schools “under which Plaintiffs UFF and ACEA bargained for and secured the employers’ agreement to collect voluntary membership dues via payroll deduction.”
The payroll deduction ban would, plaintiffs argue, impair their contractual rights and violate “Article I, Section 10, Clause 1 of the United States Constitution.”
The lawsuit, finally, also points out the possible First and 14th Amendment violations that occur because “favored” unions (law, correction and probation officers and firefighters) can use payroll deductions as a means for members to pay dues.
“Section 3 of SB 256’s payroll deduction ban distinguishes among different speakers with different viewpoints, facilitating speech by some but not other speakers, as a means of curtailing, or diluting the relative reach of the advocacy of the viewpoints of the disfavored unions,” the complaint states.
“Plaintiffs will suffer certainly impending, continuing, irreparable harm as a result of this constitutional violation.”
What the unions are looking to get out of the case is a judgment that SB 256 does violate their rights, a prohibition of implementing or enforcing the act, coverage for the cost of attorneys, as well as any other relief the court finds appropriate.
The Impact of SB 256
The bulk of controversy springs from removing payroll deductions as well as the exceptions for “favored” unions.
“His latest overreached [is to] outlaw payroll deduction as a way for educators to pay their unions – a method that is the safest and most secure way for educators to pay their unions,” Noel Candelaria, secretary-treasurer of the National Education Association, said during the Wednesday press conference.
Additionally, SB 256 would require “the employee organization to be recertified as the bargaining agent if the number of employees paying dues to the employee organization during the last registration period is less than 60 percent of the number of employees eligible for representation in the bargaining unit.”
The threat of losing job security plays directly into the impact of other bills, like SB 266, creating an environment that many educators feel is stifling.
“This is clearly a coordinated effort by the governor…in which he is going after professors, going after teachers, going after staff, throughout the state of Florida,” said Spar in response to questions from PantherNOW. “I will add: we have seen a significant increase in membership in Florida over the last month.
“Those of us who want to stay here and help our communities, help our students, a lot of us are afraid of what is going on. I think more than ever, people want to come together to make sure they have a voice and a way to stand up to tyranny.”
Further, the bill will impose new challenges to annual registration renewal with the PERC, including expanding the information required for renewal and calling for audits on annual financial reports.
The bill also authorizes “the public employer or an employee who is eligible for representation in the bargaining unit to challenge the application for registration renewal” and expands prohibited activities by “certain employee organizations and its representatives.”
However, public employers may petition the PERC, in certain situations, to waive the prohibition on dues deductions by public employers, the requirement for an employee organization to petition for recertification, and the revocation of certification of an employee organization as a certified bargaining agent.
Though the bill was signed last week, it’s an issue that UFF-FIU has been organizing in preparation for some time now. According to their president, Eric Scarffe, UFF-FIU worked with FEA over the past 18 months to set up a way to pay dues outside of payroll.
They’ve partnered with Plaid, a third-party program that is a backend to other programs – like Venmo. According to Scarffe, it doesn’t save members’ info and automatically transfers dues after each paycheck.
Though the system is set up and the union has reached the necessary 60% density, the bill leaves further work to do.
“This bill requires we maintain that with due paying members. As of July 1, those with payroll deductions no longer count,” said Scarffe, adding that unless everyone transitions to eDues, they’ll be way behind their needed member count.
For UFF-FIU, this bill and others like it have detracted from their other goals as a union to improve FIU for faculty and students.
“Before this…higher ed was not a perfect system – we were working toward making it better,” Scarffe said.
“In a world where they didn’t pass this union-busting bill, we could have taken all that energy and focused it on other things,” he added, like making strides toward correcting the gender pay gap and addressing the housing crisis in South Florida.
This state of vigilance and focus on legislation impacting higher education isn’t Scarffe’s ideal for faculty or students.
“I really want it to be the case that we can live in a world where faculty have the luxury of being disengaged again – not having to pay attention to every little thing coming out of Tallahassee,” Scarffe said. “So they can focus all their attention on research, teaching, serving their community and taking care of themselves and their families.