Recently, Rhode Island teacher unions have made misleading statements about teachers’ constitutional rights under the U.S. Supreme Court’s decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).

Organizations like the Rhode Island Center for Freedom and Prosperity and the National Right to Work Foundation have worked diligently to inform teachers and other public sector employees about their rights after Janus. In response to such efforts in Rhode Island, Attorney General Peter Kilmartin issued a press release criticizing efforts by “special interest groups” (like the Rhode Island Center for Freedom and Prosperity) to inform public employees about their constitutional rights. Instead, the AG’s press release instructs teachers to seek advice from their union or “some other reliable source.” Unfortunately, as this special notice explains, Rhode Island teacher unions are misleading teachers about their rights and are even threatening illegal discrimination based on teachers’ nonmembership status.

The Bristol-Warren Education Association (BWEA) and the National Education Association of Rhode Island (NEARI) issued a letter asking teachers to confirm whether or not they want to be union members and pay union dues. NEARI’s letter misleads Rhode Island teachers about the rights they keep after they resign or decline to join a union. NEARI’s letter also threatens illegal discrimination against teachers who exercise their rights to refrain from union membership and from paying union dues and fees.

This special notice is intended to inform Rhode Island teachers of their rights. The National Right to Work Foundation takes no position about how you should exercise your right to join or refrain from joining a union and your right to pay union dues or refrain from paying union dues or fees. The Foundation wants all employees to be able to make these choices knowingly in an atmosphere free of restraint, threats, and coercion.

The Attorney General’s press release incorrectly states that the Janus decision “only affects non-union members who previously paid fair share agency fees to the union.”

In truth, every public employee has the First Amendment right to refrain from union membership, dues, and fees, even if they are currently a union member.

The First Amendment guarantees all public employees nationwide—including Rhode Island teachers—the right to decline or resign from union membership and refrain from any payment of union dues or fees as a condition of employment. “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.” Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).

A union cannot charge nonmember teachers for the costs of grievance representation services it is legally obligated to provide as part of its collective bargaining duties.

NEARI’s letter states, “If you want to file a grievance, you will need to pay a NEARI attorney … outside lawyers are not permitted to represent you separate from NEARI in grievance proceedings, as BWEA/NEARI remains the exclusive bargaining agent.”

However, NEARI and its local affiliates cannot force nonmembers to pay fees for grievances covered and established by the collective bargaining agreement. The union’s representation services are part and parcel of the bargaining duties that it is required to perform by law. Unions voluntarily and eagerly seek certification to act as teachers’ “exclusive bargaining agents” because that status gives them the authority to own and control all collective bargaining, contract administration, and grievance adjustment in the bargaining unit. The union consequently is legally obligated to provide grievance representation services as part of its collective bargaining duties to members and nonmembers alike, free of discrimination against nonmembers. The processing of a grievance to enforce a contract cannot be separated from collective bargaining itself. Under Janus, nonmembers cannot be compelled to pay union fees for collective bargaining and related services. This means that NEARI and BWEA cannot require fees for collective bargaining services, including grievance processing, to which nonmember teachers are entitled as a matter of right. Charging fees for grievance representation would coerce employees in their freedom to refrain from paying union dues and fees under Janus.

It is important to remember that union grievance proceedings are not the only route to redress rights violations (contrary to BWEA’s and NEARI’s suggestions in their letter). Grievance proceedings might help teachers enforce their rights under a collective bargaining agreement, but teachers have other rights not provided by the bargaining agreement, like constitutional and statutory rights, as well, about which they can consult with a non-union attorney.

It is unlawful for a union to discriminatorily refuse representation based on the teacher’s nonmembership status.

As exclusive bargaining representatives, unions have a duty of fair representation to represent all teachers in the unit—members and nonmembers alike—“without hostility or discrimination toward any.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). The union’s duty of fair representation guarantees teachers the right to be represented without invidious treatment in matters affecting their employment. Belanger v. Matteson, 346 A.2d 124, 129 (R.I. 1975).

A union cannot lawfully deny nonmember teachers sick leave bank benefits established under a collective bargaining agreement.

The BWEA/NEARI letter incorrectly asserts that teachers who leave or refuse to join the union “will not be able to request days from the Sick Leave Bank.” The BWEA’s collective bargaining agreement establishes a Sick Leave Bank for all teachers covered under that agreement. Nonmembers are covered under that agreement. The union cannot lawfully deny teachers the Sick Leave Bank benefits established under that agreement simply because they choose not to be members.

Nonmembers are fully covered by the collective bargaining agreement that was negotiated between their employer and the union that represents the bargaining unit. The union is obligated to represent nonmembers because it is the job classification that is covered by the agreement, regardless of whether it is filled by a union member or a nonmember employee. Any benefits that are provided to nonmembers by their employer pursuant to the collective bargaining agreement (e.g., wages, seniority, vacations, pensions, health insurance) are not affected by their nonmembership in the union.

If the union offers some “member-only” benefits that are not mentioned or included in the bargaining agreement, a nonmember can be excluded from receiving those. Nonmembers also may not be able to participate in union elections or meetings, vote in ratification elections, or participate in other “internal” union activities. However, nonmembers cannot be disciplined by a union for anything they do while not a member.

For over five decades, the National Right to Work Legal Defense Foundation has worked in the courts and administrative agencies, to expand and protect the rights of individual employees to choose to refrain from union membership. It is the nation’s premier organization exclusively dedicated to providing free legal assistance to employee victims of forced unionism abuse.

If you want to learn more about your legal rights, go to the Foundation’s MyJanusRights.org page or contact a National Right to Work Foundation staff attorney toll free at 1-800-336-3600, via email to [email protected] or by clicking here.