Supreme Court Agrees to Hear Challenge to Forced Public Employee Unionism

When it comes to coercion, government employee unions are masters of the game. But now they must contend with masters of the courtroom. On June 30, the U.S. Supreme Court agreed to hear Friedrichs v. California Teachers Association (CTA), a case previously dismissed by district and appeals courts. Several school teachers across California, led by an Orange County teacher, Rebecca Friedrichs (in photo), assert that the CTA has no authority to levy political fees on non-members without prior consent. In light of its 2012 Knox decision, and the political character of many “non-political” bargaining issues, the Court may overturn its 1977 Abood ruling authorizing the public-sector union shop. The CTA and allies counter, less than convincingly, that the plaintiffs are “free riders” mooching off dues-paying members.

Having taken off in the late Fifties, government employee unions have become a dominant force in American organized labor. In raw numbers, their membership in recent years has been at levels similar to, or even higher than, membership in the private sector. More telling, in relative terms, 35.7 percent of all public-sector workers in 2014 belonged to a union, far higher than the 6.6 percent in the private sector. A number of factors explain why public-sector unionism has grown so rapidly, but arguably foremost among them is a grant of legal authority to operate a “union shop.” On a practical level, a public-sector union has the right to compel workers covered by a collective bargaining contract to: 1) join; or 2) pay an “agency fee” in lieu of joining. The mechanism here, as with forced private-sector unionism, is the “security clause,” in which an employer, like it or not, must fire non-paying employees. A union typically sets agency fees almost as high as member dues. As a result, many workers reluctantly join, knowing they can keep their jobs and enjoy the advantages of full membership.

This arrangement has defined state and local government labor relations for nearly 40 years. In 1977 the U.S. Supreme Court ruled in Abood v. Detroit Board of Education that a local teachers union had the authority to deduct agency fees from paychecks of non-member employees covered by a contract. Workers not accepting this Hobson’s choice – join or pay a fee – faced termination. Over the ensuing decades, the decision has provided public-sector unions with a powerful organizing weapon, enabling them to exclude non-paying “free rider” workers. Moreover, unions could route a portion of the financial windfall to their favored political candidates and spend more on lobbying for policies and programs. Abood enabled government employee unions and government itself to grow in tandem.

Yet the ruling was not a total victory for the unions. The Supreme Court also held in Abood that a union could exact tribute from non-members only for core representational functions; e.g., collective bargaining, contract administration and grievance procedures. The Court explicitly stated that nonunion employees have a First Amendment right to withhold the portion of their fees devoted to “expressions of political views unrelated to [the union’s] duties as exclusive bargaining representatives.” The Supreme Court would affirm and clarify this position in Chicago Teachers Union v. Hudson (1986), stating that prior to collecting agency fees, a public-sector union has to provide non-members with a “fair opportunity” to assess the impact of paying for non-chargeable activities. In a later affirmation of the rights of dissenting workers, the High Court in Lehnert v. Ferris Faculty Association (1991) concluded that public-sector union fees, in order to be chargeable, have to be “germaine” to the issues surrounding collective bargaining and must not “significantly add to the burdening of free speech that is inherent in allowance of an agency or union shop.” The High Court reached similar conclusions in private-sector cases such as Ellis v. Railway Clerks (1984), Communications Workers v. Beck (1988), and Air Line Pilots Association v. Miller (1998).

These rulings haven’t made much of an impression upon public-sector union bosses. Individual non-members wishing to opt out still have to clear high hurdles, and with the risk of inviting retaliation. Still, some intrepid souls have gone to court to recoup a portion of their payments following a denial of their request. On occasion, they’ve managed to reach the U.S. Supreme Court – and win. In 2007, in Davenport v. Washington Education Association, the Court ruled unanimously that public school teachers in Washington State were entitled to receive a refund on non-member fees used by the WEA (i.e., the union) for political activities that the plaintiffs found objectionable. The union, disingenuously, had circumvented a referendum passed by state voters in 1992 that had given employees the right to withhold tribute for such purposes. In 2012, the Court, in Knox v. SEIU Local 1000, ruled 7-2, on merit, that a Sacramento local of the Service Employees International Union had acted illegally in imposing a $60 per member special assessment on its members to back an ad hoc group opposed to a pair of California ballot initiatives in 2005. The measures, known as Proposition 75 and Proposition 76, though supported by Governor Arnold Schwarzenegger, each went down to defeat, in no small measure due to the $10 million spent by unions and other opponents. Nearly half that money came from the California Teachers Association.

These decisions were substantive victories for employee liberty. Yet their reasoning left intact the basis for the public-sector union shop. A new case, however, Friedrichs v. California Teachers Association, may result in the overturning of Abood. An Anaheim teacher, Rebecca Friedrichs, joined by nine other non-union public school employees and a private organization, the Christian Educators Association International, is suing the CTA to recoup fees automatically deducted from worker paychecks by the union for political purposes. At present, the plaintiffs’ only recourse has been to “opt out”; i.e., to apply for a rebate of a union-determined percentage of fees already spent on political purposes. The case originally was filed in U.S. District Court April 2013. In December of that year, U.S. District Judge Josephine Stanton, at the request of the plaintiffs, dismissed the suit on the grounds that she lacked the authority to overturn Abood. The plaintiffs appealed to the Ninth Circuit Court of Appeals, which like the lower court, dismissed the case at their request. With a path to the Supreme Court now fully expedited, a Washington, D.C.-based nonprofit law firm, the Center for Individual Rights (CIR), this past January filed for a writ of certiorari on behalf of the plaintiffs. On June 30, the High Court agreed to hear the case. Arguments are scheduled for this fall.

The Burlingame, Calif.-based California Teachers Association, with some 325,000 members, is an intensely political union. And it puts its money where its mouth is. Over the past dozen years, the CTA, an affiliate of the National Education Association (NEA), has donated well over $150 million in support of its favored candidates and ballot initiatives. The destinations of these funds have leaned overwhelmingly toward the left side of the spectrum. During 2003-12, the CTA routed $15.7 million to Democratic Party candidates, while giving Republican Party candidates only $92,700. In addition, during the latter nine years of this period, the association contributed $11.4 million to the California Democratic Party, compared with only $20,000 to the California Republican Party. During 2003-12, the CTA spent more than $135 million on ballot initiatives alone, typically through nonprofit groups such as the Alliance for a Better California and Californians to Protect Schools, Universities and Public Safety. Their names suggested nonpartisan public-spirited populism, but such organizations have been little more than union fronts.

Public-sector unions in California, as in so many other states, function as Democratic Party adjuncts. As such, they support an aggressive expansion of the welfare state, even when an issue at hand does not directly pertain to union interests. In 2005, for example, the CTA donated $20.3 million to the Alliance for a Better California’s “Yes on Propositions 79 and 80” campaigns, even though neither measure had anything to do with education; Proposition 79 would have provided drug discounts for low-income residents and Proposition 80 would have required increased renewable energy resource procurement by 2010. And in November 2011, the California Public Employees’ Retirement System (CALPERS) and the California State Teachers’ Retirement System, at the time having a combined asset base of more than $350 billion, each approved a policy to require companies with whom they invest to disclose their political contributions. The two retirement systems for well over a decade have practiced “socially-conscious” investing, a proxy for investing that meets public employee union approval.

There is no mystery in any of this. Unlike private-sector unions, which are oriented mainly toward securing better pay and benefits for workers in a given industry or craft, public-sector unions view political activism as the essence of effective collective bargaining. Toward that end, they are a guiding force behind an ecumenical coalition of progressive activists outside the realm of organized labor. And government employers may accede to union demands if they see no political downside. After all, they also have an interest in growing government. In their book Shadowbosses: Government Unions Control America and Rob Taxpayers Blind, Mallory and Elizabeth Factor observe: “Government employee unions have been able to unite all net tax receivers into a huge special interest group that is focused on growing the government. Net tax receivers are those Americans whose income comes from the government one way or another – as salary, welfare benefits, and subsidies.” Similarly, Hillsdale College historian Paul Moreno argues: “Public-sector unionism is like private-sector unionism, but it cuts out the middleman. Rather than voting for politicians who enact laws that enable unions to gain more private income, unions simply elect their employers and bargain with them.”

Rebecca Friedrichs and her co-plaintiffs have first-hand knowledge of this. The California Teachers Association imposes fees on nonunion employees covered by union contract adding up to about $1,000 a year. Of that sum, about 30 to 40 percent represents partisan political spending. But does that mean that the other 60 to 70 percent is politically neutral? Lawyers for the plaintiffs argue it is not. Public-sector collective bargaining, they argue, necessarily revolves around highly contentious issues with political implications. For teachers, they include tenure, vouchers and pensions. Forcing employees to pay for union operations, say plaintiffs’ attorneys at the Center for Individual Rights, violates their rights of freedom of speech and freedom of association. Following the grant of certiorari in the Friedrichs case, the CIR released a statement, part of which read:

Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political. But bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

The plaintiffs and their lawyers effectively are questioning the rationale underlying Abood v. Detroit Board of Education. Recent majority opinions by the Supreme Court suggest that the eventual ruling in Friedrichs, due by next June, may overturn public-sector union authority to exact all contributions from unwilling donors, not just the avowedly “political” ones. Consider Justice Samuel Alito’s majority opinion in last June’s 5-4 ruling in Harris v. Quinn that nonunion private-sector home care providers in Illinois could not be forced to pay fees to a public employee union simply because part of their incomes came out of state Medicaid funds. He wrote: “Unlike full-fledged public employees, PAs (partial public employees) are almost entirely answerable to the customers and not to the State; do not enjoy most of the rights and benefits that inure to state employees; and are not indemnified by the State for claims against them arising from actions taken during the course of their employment.” Elsewhere Alito opined that Abood was “something of an anomaly” based on “questionable assumptions,” and that the opt-out procedure for obtaining a fee refund, with its inevitable delays, amounted to an interest-free loan to the union. Even if the Court stops short of overturning Abood, it can, as a less dramatic gesture, invalidate the “opt-out” aspect of political fees in favor of an “opt-in” arrangement that enables employees to decide beforehand if they want to contribute.

Labor officials, needless to say, are bitterly opposed to such possibilities. On June 30, five union presidents – Lily Eskelsen Garcia (NEA), Randi Weingarten (AFT), Eric Heins (CTA), Lee Saunders (AFSCME) and Mary Kay Henry (SEIU) – gathered in Washington, D.C. to issue this joint statement:

We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental premise of America – that if you work hard and play by the rules, you should be able to provide for your family and live a decent life.

The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities – decisions that have stood for more than 35 years – and that have allowed people to work together for better public services and vibrant communities.

Paint-by-numbers populism of this sort distorts the issues. The dissenting teachers in Friedrichs aren’t fighting on behalf of “big corporations” or wealthy individuals. They are fighting for their right – and the right of numerous other school employees – to decide for themselves which causes to support monetarily. The plaintiffs assuredly are not a threat to the principle that hard work and fair play should be rewarded. As for the notion that they are free-riders, reaping union-negotiated benefits without having to pay for them – this is a common fallacy peddled by union bosses. Even if non-payers do enjoy the benefits of union representation, they also bear the costs. It is up to individual employees, not a union, to decide if the costs are worth it.

What organized labor really fears, but can’t admit, is the high likelihood that large numbers of public-sector workers, once freed of the obligation to pay fees or dues, will leave their unions. At present, 91 percent of all public-sector employees in the United States covered by a union contract are union members rather than non-member fee payers. If Rebecca Friedrichs and her co-plaintiffs win their case, the result could be an exodus by reluctant members throughout the nation. Making fee-paying optional already has made this kind of impact. In Michigan, for example, membership in SEIU Healthcare Michigan fell from 55,265 to 10,918 during 2012-13 after the state in December 2012 had enacted a public-sector Right to Work law. And in Wisconsin, statewide AFSCME membership during March 2011-February 2012 – the 12-month period following the initial vote by the legislature making public-sector union membership optional (the measure weeks later was passed and signed into law) – fell from 62,818 to 28,745.

As for California teachers, why wouldn’t reluctant members and fee payers opt out of contributing funds altogether? In practice, teachers who approach their union representatives for the purpose of receiving a refund instantly become targets of retaliation and become persona non grata among colleagues. Teachers who choose to opt out of subsidizing union political activism are stripped of their union participation rights and their union-sponsored liability insurance. They no longer can vote on a collective bargaining agreement. And they can’t serve in any capacity as a union official. Rebecca Friedrichs put it this way late in 2013: “I am voiceless even though I pay 100 percent of the collective bargaining dues.” This is why in a typical year less than 10 percent of all contract-covered teachers file for a rebate from the CTA.

The people who lead public employee unions in this country are not impartial guardians of the public welfare. They are aggressive political activists, and in ways that exceed the zeal of private-sector union leaders. It is in their interest to be that way. Moreover, the managers with whom they negotiate are themselves beneficiaries of political partisanship. The result has been fewer checks upon the growth in wages, salaries and (especially) benefits, growth that eventually could exhaust the fiscal capacity of currently troubled states such as California, Illinois, New Jersey and Rhode Island, plus any number of counties and cities. A victory for Rebecca Friedrichs and her co-plaintiffs would be a victory for public employees everywhere in the U.S. who currently fear the consequences of withholding financial tribute to a union. It also would be a victory for American taxpayers who make possible the services provided by public employees.


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