Law & Courts

High Stakes in Union-Fee Case Before Supreme Court

By Mark Walsh — January 05, 2016 8 min read
The Friedrichs v. California Teachers Association case goes before the U.S. Supreme Court on Jan. 11.

The face of the movement seeking to upend the public-employee labor sector has had a back-and-forth relationship with her own local teachers’ union.

Rebecca Friedrichs, the lead plaintiff among a small group of California teachers whose case goes before the U.S. Supreme Court on Jan. 11, started her teaching career in a small school district in Orange County by refusing to join the local union. Later, she joined the union and even became an officer.

Friedrichs is now back to her roots as a so-called agency-fee payer—a nonmember of the union who must pay the proportion of dues that goes for collective bargaining and a few other related costs. The main legal question in Friedrichs v. California Teachers Association (Case No. 14-915) is whether a key Supreme Court precedent authorizing such agency-fee arrangements should be overruled.

“The unions have core values that are in direct opposition to my core values,” Friedrichs said in an interview. “They’re using those fees to support their core values and their agenda.”

‘A Big Deal’

Friedrichs and nine other teachers are asking the Supreme Court to overrule that 1977 precedent, Abood v. Detroit Board of Education, and hold that states may not allow unions to exact such fees from public employees who refuse to join.

Abood held that state interests in maintaining labor peace and eliminating “free riders” justified requiring nonmembers to pay such fees, which are also known as service fees or “fair share” fees.

The Friedrichs case holds high stakes for the future of public-sector unions, not least the teachers’ unions that are parties to the case.

Union Fees: How Nonmembers Are Charged

The Friedrichs v. California Teachers Association case involves “agency fees” paid by non-union teachers—the proportion of union dues related to collective bargaining. Here are some examples of CTA expenses and the degree to which non-union members could be charged for them, based on a typical notice sent to agency-fee payers.

BRIC ARCHIVE

Source: Court records in Friedrichs v. California Teachers Association

The challengers “are asking for a ruling that would take down the collective bargaining laws of 23 states, all of which rely on fair-share fees,” said Alice O’Brien, the general counsel of the National Education Association, which is defending the Abood precedent alongside the California Teachers Association, the union’s state affiliate, and the 10 local affiliates in the Southern California districts where the objecting teachers work.

“The union will obviously lose funds” if nonmembers are no longer required to pay for collective bargaining, O’Brien said. “Some people will make the rational choice to not pay for services that are provided for free by the union.”

Charlotte Garden, an associate professor at Seattle University’s law school and a labor-law expert, said “the case is a big deal.”

“It’s not heralding the end of public-sector unionism the way some people have suggested,” said Garden, who helped organize a friend-of-the-court brief by labor-law professors on the unions’ side. “But it is going to matter a lot in terms of upsetting settled labor contracts.”

If the pro-union voices speak as if the risks to 40 years of settled public-sector labor law are very real, that’s because they are. Conservatives on the Supreme Court have been signaling their desire to overrule Abood for several years now.

In a 2014 decision in Harris v. Quinn, the Supreme Court stopped just short of overturning Abood when it held that a group of Medicaid home-health workers were really not government employees and could not be forced to pay agency fees to a union representing a majority of such workers in Illinois.

Differing Views

Writing for a 5-4 majority in Harris, Justice Samuel A. Alito Jr. wrote at length about Abood‘s “questionable foundations,” but he concluded it wasn’t necessary to overrule the 1977 decision in the Illinois case. Alito had raised similar concerns in a separate case two years earlier.

In a dissent for the court’s liberal bloc, Justice Elena Kagan wrote: “For some 40 years, Abood has struck a stable balance—consistent with this court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces.”

The case highlights a reality about how union dues and agency fees operate in many states.

In California, public-sector unions actually collect the full amount of dues from objecting employees. Then, the agency-fee payers must “opt out,” or affirmatively object, to paying for unions’ political and lobbying activities, and they then get a refund for those nonchargeable activities.

Some union expenditures are clearly related to collective bargaining, and thus “chargeable” to fee payers; others are clearly not related, and thus “nonchargeable.” But many categories of spending—legal services, public relations, back-office administration—are at least partially chargeable.

In the 2012-13 school year—a year detailed in the factual record in the case—45.9 percent of the National Education Association’s expenditures qualified as chargeable to nonunion agency-fee payers, while 68.4 percent of the California Teachers Association’s expenses were chargeable. For the local unions involved in the Friedrichs case, the amount qualifying as chargeable ranged from 84.4 percent to 100 percent, reflecting the fact that spending at the local-affiliate level is more likely to be related to collective bargaining and contract management.

Despite the proportions that they could charge, the unions actually charged fee-payers only 40 percent for NEA expenses, 65.4 percent for CTA spending, and 65.4 percent for local union spending. Differences in what could be charged and what is charged provide a cushion in case of disputes over the chargeability of particular expenses. (Such disputes go to an independent arbitrator.)

The second question in Friedrichs is whether the First Amendment requires that fee-payers “opt in,” or affirmatively consent, to having any of their pay go to union political and lobbying expenses.

The Supreme Court has moved in that direction in recent years, ruling that states may require such affirmative consent, and that such an opt-in is required when a public-sector union collects a special assessment.

Union Yes, Then No

Friedrichs has spent her entire 30-year career in the 2,400-student Savanna district in Anaheim, Calif., teaching from kindergarten through 4th grade at different times.

After several years as an agency-fee payer, Friedrichs decided to join the union after all, at least for a time.

“After several years of standing on principle, it dawned on me that I wanted to have a voice in my union,” Friedrichs said. She even became a union leader, serving as a campus representative and later as an executive-board member of her union local.

“But even then, I had no voice because I wasn’t in step” with all of the union’s priorities, says Friedrichs. She didn’t want to go knocking on doors on behalf of political candidates endorsed by the union, and she had even suggested openness to private school vouchers, something staunchly opposed by the NEA and its affiliates.

Friedrichs quit the union for good and now must pay the agency fee, which for a full-time teacher amounts to about $650 a year, or about 65 percent of the roughly $1,000 per year that union members are charged in local, state, and national dues. (Friedrichs, one of three agency-fee payers at her school, has been working half-time recently so she has time to travel and speak out about the case.)

A central claim of Friedrichs and the other objecting teachers is that collective bargaining itself is “quintessentially political,” so when the teachers’ unions lobby the school district or the state for better pay and working conditions, they are engaged in political speech and expressing views the objecting teachers may not agree with.

“At the fundamental level, when a public-employee union negotiates for higher salaries, it is negotiating with the government over taxpayer spending,” said Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal organization that is representing Friedrichs and the other nonunion teachers.

“A lot of teachers like their union,” Pell says. “They’re going to join and pay dues. What we’re really fighting for is the free-speech rights of those who don’t really agree with the union.”

But what teacher is not in favor of higher pay and better working conditions?

Friedrichs said that amid tough economic conditions in her district, she and some other teachers were in favor of a small pay cut so that the jobs of certain teachers could be saved. But the local union instead pressed for a pay increase, and several teachers were laid off.

Freedom to Lobby

The NEA’s O’Brien said collective bargaining is not the same as political lobbying.

“If you seriously consider that claim, it fails at the very threshold,” she said. “Collective bargaining is controlled by the states. A state like California can decide that certain topics are off limits in bargaining, such as tenure and layoffs, which are controlled by state law.”

Besides, said O’Brien, the objecting teachers “are free as citizens to take any stand they want and lobby the government.”

She says public-employee unions take seriously their obligation to represent everyone in the bargaining unit—union members and nonmembers alike.

“Employers value exclusive representation, and the only way that works is if they impose a strong obligation to represent everyone in the workplace,” O’Brien said.

O’Brien argues that overturning Abood would call into question thousands of contracts between government agencies and public-employee unions, governing not just teachers but also law-enforcement officers, firefighters, and others.

Although both sides are tamping down the rhetoric that has surrounded the question of whether eliminating mandatory agency fees would be a severe blow to the unions, O’Brien said: “All you have to do is look at the difference between right-to-work states and non-right-to-work states to see that [the challengers’] arguments do not take into account certain economic realities. Unions that are forced to carry people in the unit for free are weaker.”

Pell, of the Center for Individual Rights, the group backing the challenge, countered that public-employee unions needed laws requiring agency fees when those unions were just getting off the ground.

“But now, the CTA is the most powerful interest in the state of California,” he said. “Once the union has become that big and powerful, it is hard to take seriously its reliance interests on compulsory [fees].”

Friedrichs also believes a win for her side would not seriously dent the power of the unions.

“I think it would make them more accountable to their members, and they would have to up their game,” she said. “Right now,” she contended, “they are totally entrenched and focused on their own preservation.”

A version of this article appeared in the January 06, 2016 edition of Education Week as High Stakes in Union-Fee Case Before Supreme Court

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