The anti-union case being heard today by the Supreme Court: A backgrounder
by Michael Hiltzik | LA Times Columnist | http://lat.ms/1l0npQ1
As we explained in this column about a similar California case, Bain vs. California Teachers Assn., these lawsuits aren't about free speech, or improving education for children. They're about silencing the political voice of teacher unions by cutting off their revenues. They're part of a concerted attack on organized labor mounted by conservative organizations.
The Bain case, which was thrown out in September by a federal judge in Los Angeles, was brought by StudentsFirst, a group founded by former Washington, D.C., schools chancellor Michelle Rhee. Before leaving the organization in 2014 under a cloud,
The real goal of these lawsuits is to overturn the Supreme Court's so-called Abood precedent, established by a 1977 decision in a case involving the Detroit schools.
In that case, the court validated "agency fees." Under the law and according to the decision, workers can be assessed non-member fees to cover solely the cost of negotiations and contract enforcement, without being compelled to join a union and support its political activities with their dues.
Since the union is required to represent all workers in these negotiations, not just its dues-paying members, the reduced agency fees are a fair way to avoid free-riders who get the benefit of union negotiations without becoming members and paying dues.
Agency fees are at issue in Friedrichs, and were at the center of the Bain case. They also have been the target of three California ballot initiatives in 16 years. All three initiatives failed at the polls.
The argument in the Friedrichs case is that it's impossible to distinguish political from non-political activities.
"Collective bargaining is inherently political," the Center for Individual Rights says.
EDITORIAL: Should nonunion teachers be forced to pay dues?
Jan 11, 2016 :: On Monday, the Supreme Court will be urged by a group of disgruntled California public-school teachers to rule that the state is violating the 1st Amendment by requiring them to contribute to the teachers union even though they have opted not to be members. The court, which has flirted with this spurious notion in recent years, should resoundingly reject that advice and reaffirm its 1977 ruling upholding such “fair share” arrangements.
The case of Friedrichs vs. California Teachers Assn. is the latest installment in a long legal campaign to undermine public-employee unions, and it comes at a time when those unions are under fire for the generosity of the benefits they negotiate (especially in relation to those available in the private sector) and for their political influence. Teachers' unions in particular — and not just in California — are being faulted for inflexibility and resisting reform. The plaintiffs in this case refer in their brief to “this era of broken municipal budgets and a national crisis in public education.”
But the issue before the court isn't whether teachers' unions are beneficial or harmful. It is whether the 1st Amendment prohibits California and other states from requiring public employees who choose not to join the union — but who benefit from agreements the union negotiates — to help defray the costs associated with collective bargaining.
The system works this way: Once a union has been chosen by majority vote to represent all employees, workers who decline to join are nevertheless assessed a fee to cover costs related to negotiations over wages and working conditions. But they can opt out of paying additional fees related to the union's political activities by requesting a rebate.
The Supreme Court upheld “fair share” payments in the 1977 case of Abood vs. Detroit Board of Education, but some conservative members of the court have been angling to overturn that precedent.
The argument for overturning Abood is based on a misreading of the 1st Amendment. Essentially the plaintiffs are arguing that requiring them to pay a fee to support collective bargaining on their behalf is a form of unconstitutional “compelled speech” about political matters. In their brief, they say that “it is difficult to imagine more politically charged issues than how much money local governments should devote to public employees, or what policies public schools should adopt to best educate children.”
This is an ingenious but unconvincing argument. As state Atty. Gen. Kamala Harris points out, it ignores the Supreme Court's “longstanding recognition that constitutional analysis differs when the government acts as employer, rather than regulator.”
Even when it acts as an employer, government can't ignore the 1st Amendment. But it may balance the free-speech rights of employees with other interests — in this case, the advantages of preserving labor peace and preventing a situation in which some employees are “free riders” who benefit from contracts negotiated by the union without bearing any responsibility for defraying the costs associated with representation.
That doesn't mean that an employee may not exercise his 1st Amendment right to criticize the union or the policies it pursues at the negotiating table. That employee also can campaign for a majority vote to decertify the union. Alternatively, an employee who opposes the union's negotiating agenda can join the union and press for new leadership.
In addition to challenging the “fair share” system, the plaintiffs are making a backup argument, also based on the 1st Amendment, that even if nonunion members must pay fees associated with collective bargaining, they may not be charged for the union's political activities unless they affirmatively “opt in” to making such payments.
As we have observed before, paying for a service performed at the bargaining table is easily distinguishable from paying for political activities. As a matter of policy, we would prefer that nonunion members be required to “opt in” to subsidizing political activity. But we're not persuaded that system is required by the 1st Amendment.
The vastly more important issue in this case is whether the Supreme Court will undermine the ability of unions to effectively represent all of their workers at the bargaining table. The court should refuse to do so and reaffirm the Abood decision.
Supreme Court could dent the power of public sector unions
The case concerns laws in California and 22 other states that permit public sector unions to force everyone covered by their contract to contribute money to the union — even if an individual worker wants no part of it. For decades, such statutes have increased the membership rolls and inflated the coffers of unions for teachers and other government workers, turning them into political powerhouses and the backbone of the Democratic Party. All that could change if the court rules for the plaintiffs, a group of nine teachers led by Rebecca Friedrichs, who has taught elementary school for 26 years, most recently in Anaheim.
The constitutional basis for the status quo is Abood vs. Detroit Board of Education. In that 1977 decision, the Supreme Court said that even though workers cannot be forced to join a union, they still must pay the union for negotiating with management on their behalf. These costs to nonunion members are called “agency fees.”
The ruling rested on two connected ideas, both of which are still vigorously supported by organized labor. The first is “exclusive representation”: Through a one-time vote to unionize, a majority can compel everyone to accept a union as their agent in collective bargaining. The second is the “free rider” argument: If a union now has to represent all workers equally, then members and nonmembers alike must pay a fair share of those costs.
In states where laws protect agency fees, significantly more public employees become union members. Stanford University political scientist Terry M. Moe, for instance, found that more than 90% of teachers belong to unions in states that permit agency fees. In states that don't, only 68% of teachers are unionized.
Why? Agency fees are almost always nearly the same amount as union dues, so many people just join the union. They're paying for it anyway.
The 1st Amendment problems inherent in compelling any payments to public employee unions should be obvious. The first is that money is fungible. Abood imagined a clear line separating political spending and collective bargaining costs. In practice, however, whether money comes from dues or agency fees, the union just gets more money to spend.
Besides, to fully opt out of political spending, a nonmember has to explicitly decline (usually in writing) to pay whatever portion of his agency fee the union claims it allocates to politics. Some workers forget to do so. As a result, in states like California with agency fees, public employee unions consistently are among the top political spenders.
Unions also interpret spending categories like “member education” broadly. It's not uncommon for negotiations-related fliers, emails and ads to look and sound a lot like political advocacy.
Second, when it comes to public sector unions, all issues subject to collective bargaining are inherently political. Even wages are a political question — because unions invariably argue that more tax dollars should be spent on public workers' salaries or pensions rather than other priorities. Therefore, even if a strict separation of bargaining and lobbying expenditures were possible, nonmembers still end up underwriting political positions they may not support.
Justice Samuel A. Alito Jr. alluded to this problem in his decision in a recent case, Knox vs. SEIU: “Collective bargaining [in the private sector] concerns the union's dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.”
The entire agency fee then violates a nonunion worker's right to freedom of speech and association. Alito also wrote that concerns about free riders weren't enough to overcome these 1st Amendment objections.
Public sector unions became political powerhouses by essentially co-opting the cash, and therefore the voice, of people who opposed their views. Public employees certainly have benefited from that influence, but it has made government more expensive for taxpayers and less efficient for everyone else. The Supreme Court has an opportunity to restore some balance.
- Daniel DiSalvo is an associate professor of political science at the City College of New York-CUNY and a senior fellow at the Manhattan Institute*. He is the author of “Government Against Itself: Public Union Power and Its Consequences.”
* smf: A pro-charter/anti-union ®eform, Inc. think tank.