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Friedrichs Case (First Amendment Rights and Union Fees): Some Thoughts

January 17, 2016

There has been a lot in the news lately regarding the Friedrichs case, which is now before the US Supreme Court. In this January 12, 2016, article in Truthdig, journalist Bill Blum offers the following background and observations:

Argued before the justices Monday, Friedrichs concerns the right of unions to collect limited “fair-share” fees from nonmember employees in lieu of full formal dues to help defray the costs of collective bargaining.

By any yardstick, the case packs blockbuster potential, both legally and politically. A decision against the 325,000-member teachers association could harm every government employee union in the country, draining their coffers and conceivably sending some into bankruptcy. In the process, the nation’s entire public sector would become one uniform right-to-work jurisdiction. …

The plaintiffs in Friedrichs are the Christian Educators Association International and 10 anti-union California schoolteachers, including lead litigant Rebecca Friedrichs, who has taught kindergarten through fourth grade for nearly three decades in Orange County. They object to paying fair-share fees to the CTA. All were once CTA members but have since resigned. …

Collectively, the plaintiffs are represented by the Center for Individual Rights (CIR), a nonprofit, ultra-right-wing law firm in Washington, D.C., that has made a name for itself in suits opposing affirmative action, the Voting Rights Act, Obamacare and the Association of Community Organizations for Reform Now. …

Carvin and the CIR contend that collective bargaining in the public sector is inherently political and that, as a result, the fair-share system violates the First Amendment rights of nonunion workers. The amendment, they note, protects not only the affirmative right to speak without governmental interference, but also the passive right to not be compelled by government to speak or endorse the offending speech or acts of other individuals or groups. Requiring dissenting employees to pay fees to a union they don’t want to join, their analysis continues, amounts to such compelled speech and must be declared unconstitutional across the board.

On the US Supreme Court (SCOTUS) blog, attorney and blog editor Amy Howe offers the following in her January 11, 2016, entry:

For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in Abood v. Detroit Board of Education and strike down the fees.

Howe continues with a summation of the oral arguments in the case, of what the justices said and what they did not. In short, it seems that the five Republican justices are leaning toward overturning Abood and the four Democratic justices are not.

The case itself concerns two issues:

Issue: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

To help understand what is at stake in the Friedrich case, journalist Lyle Denniston offers the following in his August 24, 2015, SCOTUS blog post:

Labor unions in America have definitely seen better days.  Membership in unions has been plummeting for years: from a high in 1945, when one of every three workers belonged to a union, the number is now down to fewer than one in ten.  Unions in the private sector have fared the worst: only about 6.6% of workers in industry belong to a union now.

That has left public-sector unions, representing 35.7% of government workers, to carry the lead banner for organized labor across the United States.  But the public-sector unions have been losing favor in an important venue: the Supreme Court.  They now face, in the Court, at least the prospect of losing a significant chunk of their financial support.

These dire prospects are part of a long-term trend that grows out of a hard reality for U.S. unions in general: for generations, they have been caught between a legal duty, on one hand, and, on the other, a resistance movement within the ranks of workers they represent.  If a union wins the legal right to represent a group of workers in what is called a “bargaining unit” — a company’s whole workforce, or a defined part of it — it has the obligation to deal with management on behalf of all of the unit’s workers, whether or not they have joined the union as members.  Any workplace benefits it wins go to all the workers, not just the members. …

Many workers across the nation do not want to join a union, and they generally have the legal right to refuse.  But, for labor unions in both the private sector (since at least 1944) and the public sector (since 1977), the organizations can charge non-members a monthly fee that is supposed to compensate the union for activities that directly benefit those workers, too.

This fee is less than what the members pay each month, and unions are supposed to calculate the non-members’ monthly fee (a so-called “agency fee”) so that it only covers those workers’ share of what the union does to represent all workers on wages, hours, and conditions in the workplace (the bargaining issues). …

In several decisions since then, the Court has clarified how the agency fee system is supposed to work.  The non-members must be given advance notice of what their fee will be, and how it is calculated; any time the union starts a new activity that affects its costs, it must give a new notice of how the fee is going to be set, and the union must have a neutral decision-maker to decide fee disputes.

Beginning in 2012, in Knox v. Service Employees International Union, involving the union’s assessment of a special new fee, the Court began criticizing the Abood decision that had put public-sector unions into the agency fee realm.  Even the agency fee, the Court majority said, puts a burden on non-members’ First Amendment rights.

That critique reached a new peak in the 2014 decision in Harris v. Quinn, when a majority obviously conveyed a strong inclination to reopen the Abood decision, although it did not do that explicitly at that time.

More than a year before the Harris decision emerged, however, lawyers for a group of public-school teachers in California took the hint of the Knox decision.  In April 2013, ten teachers, along with the Christian Educators Association International, filed what was clearly intended to be a test case — that is, to test the continued validity of the Abood decision.

The aim was for non-members not to pay any agency fee at all.  The theory was simple: when a union is operating in the public sector, everything it does is political — that is, every benefit it wins from a government employer adds to the public budget and adds to the taxpayer’s burden.  And some workers object, citing their First Amendment right not to be identified with any political or legislative cause pursued by a union that represents them. …

The challengers raised two questions.  First, they asked the Court directly to overrule Abood, using the First Amendment to strike down the “agency fee” obligation.  The logic and reasoning of the Court’s most recent decisions, the petition contended, “have shattered the intellectual foundation of its approval of such compulsion.”

The time has come, it added, at least to engage in a full, new review of the First Amendment implications of the agency fee arrangement.

The petition, though, has a fallback position, in case there turns out not to be a majority to cast aside the Abood precedent altogether.   It argued that the Court, again applying the First Amendment, should at the very least rule that a non-member of a public-sector union may not be required to take the initiative every year to opt out of paying fees that go to political activity, as such, but rather should be permitted to opt out just once and then remain excused from paying any such fee unless each individual non-member explicitly agreed to pay it. …

[The Friedrichs case] will be heard early next year [2016], and decided by the following summer.   A ruling, coincidentally, is likely to come out in the midst of the 2016 presidential and congressional election campaigns.

Below is the text of the First Amendment to the Constitution, the center of the Friedrichs case:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By being represented by a union they wish to no longer be part of, Friedrich et al. maintain that their First Amendment rights are being violated. It seems like a stretch for the US Supreme Court to find in favor of the plaintiffs based upon violation of the First Amendment. Even though the union negotiates for teachers collectively, that does not prevent any teacher from speaking individually– from expressing his or her point regarding any aspect of his or her job. Moreover, if Friedrichs herself has concerns about passively being represented, she should have demonstrated as much by attempting to return the pay raise that union bargaining garnered for her. (I have read no evidence that supports her trying to do so.)

I am a public school teacher, and I am also a member of our local union. As such, I benefit from the collective bargaining that is conducted by my union. Such benefit notwithstanding, I am still able to bargain for myself for issues in which I have leverage.

The whole point of collective bargaining is in the leverage that the collective affords. But there are certain issues where I have leverage individually and can therefore negotiate with my employer individually for certain benefits and possibly supplemental pay. For example, I hold a doctorate in research, and I have been offered the opportunity to earn extra money by working for my district in that capacity. I was also once offered the opportunity to assume special duties regarding a subpopulation of students with special needs in exchange for extra planning time and twice, for teaching classes of notably smaller size. Finally, I have petitioned my employer on more than one occasion for the benefit of paid time away from campus in exchange for application of my research and writing expertise in service of my school system and profession in general. In some cases, my employer grants such benefits, and in others, my employer declined.

And in no cases did the leverage that I had individually to negotiate on my own behalf– to speak for myself– involve any clash with the collective bargaining of the teachers union.

In order for an individual to bargain with his or her employer, that individual must have individual leverage.

I have read the oral arguments in the Friedrichs case, and the issue of individual leverage (and the collective’s interference with it) is implied yet not openly discussed.

The oral arguments include no discussion of Friedrichs et al. having any noteworthy, individual leverage that could have resulted in a reasonable negotiation for a desired outcome that was somehow impinged by the union’s collective bargaining via its collective leverage.

Here is how the arguments begin:

ORAL ARGUMENT OF MICHAEL A. CARVIN ON BEHALF OF THE PETITIONERS

MR. CARVIN: Mr. Chief Justice, and may it please the Court:

Every year, Petitioners are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize. Abood’s authorization of this clear First Amendment violation should be overturned, both to end this ongoing deprivation of basic speech and association rights, and to restore consistency and predictability to the Court’s First Amendment jurisprudence.

JUSTICE GINSBURG: Mr. Carvin, is it permissible, in your view, to allow the union to be the exclusive representative so that nobody else is at the bargaining table?

MR. CARVIN: Yes, that’s fine with us. Our objection, of course, is being forced to subsidize that exclusive representative.

The fact that they are exclusive representative impinges on my clients because it disables them from individually negotiating with the school board, but that is justified by the need for an exclusive representative.

The first place that I heard the argument of not wanting a union because such hampers the issue of individually bargaining was in the Walmart training video that I transcribed in this November 2015 post.

The billionaire Walton family is aggressively anti-union, for it knows that the only true leverage its employees have in effectively negotiating for improved wages and benefits is in the collective. To promote the message that the union collective prevents individual Walmart employees– who overwhelmingly lack the individual leverage to effectively negotiate with their employer– from negotiating on their own behalf is a sad comedy.

Most Walmart employees are unskilled or minimally skilled and as such, are easily replaceable– which is what the Waltons prefer, for it improves their bottom line. And if there should be some position in the Walmart empire in which a rare and specialized skill is required, then that employee has individual leverage, the absence collective bargaining notwithstanding. But such Walmart employees are assuredly rare, if they exist at all.

Collective bargaining would certainly benefit most Walmart employees. The Waltons have over 11,000 Walmart stores, so the sheer number of employees that the Waltons need would make their business vulnerable should those employees manage to somehow form a national-level, Walmart workers union.

If the US Supreme Court finds in favor of Friedrichs et al., the likes of the billionaire Walton family will be the real winners.

I will close this lengthy post with some excerpts from the oral argument. The argument is 100 pages long and refers to a number of cases, some of which are referenced in this post. Even though one might not be able to follow the details of all cases referenced, the oral argument makes for an interesting and informative read.

The following statements stood out to me and have served to inform my post.

Continuing with Mr. Carvin, on behalf of Friedrichs et al.:

MR. CARVIN (On behalf of the petitioners): However ­­ so with respect to collective bargaining, they can’t negotiate. So the free-­rider rationale is much weaker in the collective bargaining context, because the teachers’ right to negotiate with the public officials that the union is talking to is ­­ is extinguished in those circumstances, even though in lobbying, they can engage in their own lobbying, but we don’t allow agency fees for lobbying.

Moving ahead:

MR. DUMONT (On behalf of the Attorney General of California): …And let just me say for just a moment about the burden that’s involved here, because I don’t want to minimize it, but let’s remember that there is no personal attribution of this speech here to any individual employee. There is no restriction on any individual employee’s speech as a citizen, either in the workplace or out of the workplace.

And still further:

JUSTICE GINSBURG: Mr. Frederick, you didn’t ask for this judgment. It was thrust on you, this judgment on the pleadings. You did say you wanted to make a record in the district court. If you had had that opportunity to develop a record, what would you have put in it?

MR. FREDERICK (On behalf of the union respondents): Well, the first thing I would have put in, it would have been a response to Justice Kennedy’s question, which is that Ms. Friedrichs has said publicly she’s happy with the positions the union is taking on pay. It would be anomalous to suppose that we’re going to decide a case of this kind of constitutional import with a lead plaintiff who has said publicly she agrees with the union’s positions on pay.

CHIEF JUSTICE ROBERTS: Can you, ­­can you, ­­do you think you can find one employee who doesn’t?

MR. FREDERICK: No. I think that that’s the point….

Notice Chief Justice Kennedy’s bias in assuming that unions “protect underperforming teachers” (as opposed to actually ensuring due process rights to teachers):

JUSTICE KENNEDY: Mr. Fredericks, we, I suppose, Mr. Fredericks, we could assume that a State is always benefited and ­­ and is more efficient if it can suppress speech.

MR. FREDERICK (On behalf of the union respondents): And your decision in Garcetti, Justice Kennedy, allowed for the suppression of the speech by the prosecutor who objected ­­

JUSTICE KENNEDY: That was in the workplace. It doesn’t apply to merit pay. It didn’t apply to the protection of underperforming teachers. It ­­ it didn’t ­­ it didn’t apply to classroom size. It didn’t apply to educational objectives. …

MR. FREDERICK (On behalf of the union respondents): ­­ …Their speech isn’t silenced. They are paying a service fee so that a, the exclusive representative can negotiate their health and welfare benefits, their mileage reimbursement, a whole set of things that ­­ voluntary teacher transfer policy, the questions about when teachers have to show up, how long their duty breaks ­­ duty-­free breaks are during the course of the day. These are all relatively mundane points. I,­­ I think you would agree with me. And there’s nothing in the agency fee process that suppresses the ability of teachers to speak out publicly, and even within the process because the law itself allows for merit pay to be a subject of bargaining if a minority of the teachers can convince the majority that this is a position that the teachers ought to take.

And the closing:

REBUTTAL ARGUMENT OF MICHAEL CARVIN ON BEHALF OF THE PETITIONERS

MR. CARVIN:…They haven’t come close to this burden of justification, because they can’t possibly show that agency fees will lead to the end of the union. And contrary to my brethren, that’s the only thing that matters. We’re talking about the ­­ the government’s interest as an employer. All they care about, according to Abood, is having one union instead of two so they only have to speak to one person. They don’t care about how robust or effective this union is. Indeed, if anything, they don’t want them to be effective, because nobody wants a strong bargaining partner that’s going to drive up public expenditures and,­­ and have a– ­­

JUSTICE SOTOMAYOR: So what do you do with the law enforcement people who submitted their brief who said the unions actually do training. They provide equipment the county can’t afford with fees. So they’re ­­ what the ­­ the General has been saying is, we have to leave it to each State to decide, because with this kind of agency fee, there are things that unions can do that we would choose not to do.

MR. CARVIN: I am —

JUSTICE SOTOMAYOR: The unions in California do teacher training.

MR. CARVIN: Exactly, and they do fire training. They do safety training. Can you think of something that’s more a matter of public concern, that’s more of an ideological point, that’s more important? And yet they dismiss these as somehow prosaic issues. They’re basic to our democracy, and that’s why we have an absolute right not to subsidize it. No one’s arguing that these —

JUSTICE SOTOMAYOR: Why? Why? If you’re receiving the benefits of it, why? It’s,­­ it’s your benefit. You may disagree with that judgment ­­

MR. CARVIN: Right.

JUSTICE SOTOMAYOR: ­­ –but–­­ and you– ­­ and you can speak about it ­­

MR. CARVIN: Because there’s–

JUSTICE SOTOMAYOR: ­­ –but why is it hurting your First Amendment right if you can speak?

MR. CARVIN: There’s a great ongoing debate about teacher training class size in education reform today. The unions have their right to take their side of that view. What they don’t have a view ­­ is a right to demand that the other side subsidize their views on these essential questions of ­­ of basic public importance.

CHIEF JUSTICE ROBERTS: Thank you, counsel. The case is submitted. (Whereupon, at 11:26 a.m., the case in the above-­titled matter was submitted.)

The US Supreme Court is expected to rule on Friedrichs in June 2016.

supreme court justices

The US Supreme Court (click image to enlarge)

______________________________________________________________

Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.

From → litigation

4 Comments
  1. Harlan Underhill permalink

    Thank you, Mercedes for your better than any journalist’s report on this case. Although I disagree with you on the desirability of public sector unions, I always appreciate your brand of ultra thorough scholarship. It might be mentioned that GE’s move to Boston from Fairfield, CT, was precipitated by union control of the state’s tax raising process, and apparent union blindness to the welfare of the golden goose from which they derive their survival, namely [capitalist] businesses.

  2. It is obvious that the court is going to rule in favor of the plaintiffs. However egregious this opinion will be to a large swath of employees, it will become the law. So the issue really is what to do next?
    I would argue against the passivity that has characterize unions and educators specifically. What would you suggest?

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