Symposium: Another battle in the war over union fees

Source: Charlotte Garden, SCOTUSblog, August 28, 2015

…Abood’s balance reflects two realities about collective bargaining. First, a major reason states choose to allow public-sector bargaining is to provide a productive and stable channel for workers’ voices, which is much more easily achieved when an elected union has adequate resources. Second, agency fees are appropriate when – as in this case – unions are required to fairly represent all workers in the bargaining unit, whether or not they become members; the alternative would permit destabilizing free ridership. Thus, Abood reflects a careful balance of the competing speech and association interests of workers (including both those who wish to associate with a union and those who do not), and state governments’ managerial interests….

Symposium: Correcting the “historical accident” of opt-out requirements
Source: David Rivkin and Andrew Grossman, SCOTUSblog, August 27, 2015

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion….

Symposium: The Friedrichs petition should be dismissed
Source: Catherine Fisk, SCOTUSblog, August 26, 2015

Friedrichs v. California Teachers Association presents two issues: (1) whether to overrule Abood v. Detroit Board of Education, and hold that the First Amendment prohibits school districts and teachers’ unions from requiring teachers to pay the union their fair share of the cost of union representation services; and (2) whether the First Amendment requires any government employee who wishes to join a union to opt into membership rather than, as the law currently requires, to opt out.  The Court ought not decide either issue because both depend on facts not in the record.  If it does decide the case, it cannot rule for the petitioners without substantial violation of the First Amendment rights of unions and their members….

Symposium: Public-sector unions, labor relations, and free speech
Source: Ann Hodges, SCOTUSblog, August 25, 2015

[editor’s note: SCOTUSblog will be hosting a symposium on Friedrichs v. California Teachers Association this week. This is the second post in the symposium.]

….What justifies forcing employees to pay fees to a union if they object? The rationales recognized in Abood, and questioned by Justice Samuel Alito in the recent opinions of Knox v. SEIU, Local 1000 and Harris v. Quinn, are labor peace and avoiding free riders. Justice Alito’s dismissal of these justifications, which certainly prompted Friedrich’s arrival at the Court in warp speed, fails to appreciate that they are part and parcel of longstanding labor relations systems chosen by many states. Given the decline in the unionized percentage of the work force in the last thirty years, it is perhaps understandable that many may not recognize the history behind these systems, the importance of each part of the system to the whole, and the consequent risk of dismantling the systems piecemeal. But it is crucial that the Court consider the full scope of the labor relations systems in order to evaluate properly the weight of the justification for any infringement on employees’ First Amendment rights…..

…..Unions also benefit from the exclusive representation system, although the advantages for the union are mixed. The union that wins the representation election is insulated from challenges to its representation rights for significant time periods, but other unions cannot organize those employees. Additionally unions must represent individuals who are not members and may be hostile to the union, reducing the resources available to serve those members who pay full dues.

Accordingly, the union is not just a membership organization that provides incidental benefits to nonmembers. It is an organization that, by law, must provide benefits to nonmembers in order to facilitate a comprehensive system of labor relations. Although fair share agreements are not authorized in all states, there is a classic collective action problem at work. The union’s power comes from the collective. When some individuals get the full benefits without paying, however, even the union’s supporters may make the rational decision not to pay. Ultimately the union may lack the resources to engage in effective representation, which will eviscerate the entire system. Therefore, to enable this system to function effectively, many states have decided that fair share fees are necessary…..

Symposium: Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?
Source: Bill Messenger, SCOTUSblog, August 25, 2015

[editor’s note: SCOTUSblog will be hosting a symposium on Friedrichs v. California Teachers Association this week. This is the third post in the symposium.]

William Messenger is an attorney with the National Right to Work Legal Defense Foundation.  He argued on behalf of the petitioners in Harris v. Quinn.

The First Amendment generally forbids the government from forcing citizens to support a private organization’s speech and expressive activities. Yet, roughly forty years ago, the Supreme Court held in Abood v. Detroit Board of Education that the government can force public employees to financially support some types of union speech, but not other types. Specifically, Abood held that employees could be forced to subsidize union collective bargaining with the government, but not union political activities intended to influence government policy….

Symposium: Overrule Abood to protect individual rights
Source: Deborah La Fetra, SCOTUSblog, August 24, 2015

[editor’s note: SCOTUSblog will be hosting a symposium on Friedrichs v. California Teachers Association this week. This is the first post in the symposium.]

In Davenport v. Washington Education Association, the Supreme Court described laws that empower unions to garnish the wages of non-union members as an “extraordinary state entitlement to acquire and spend other people’s money.” Nonetheless, for nearly forty years, since Abood v. Detroit Board of Education, the Court has allowed that wage garnishment on the theory that without such entitlements, unions’ collective bargaining efforts might be undermined by “free riders.” A series of cases upholding workers’ First Amendment rights to speak and associate as they choose has steadily chipped away at Abood, culminating in this Term’s grant in Friedrichs v. California Teachers Association. The Court should take this opportunity to overrule the flawed Abood decision. That case was based on faulty premises and an unrealistic view of public-employee unionism, and the rule it announced infringes on individual rights….

New challenge to public employee unions, made simple
Source: Lyle Denniston, SCOTUSblog, August 24, 2015

….There is a lot of history behind this dispute. The specific case focuses on dues charged by unions representing the public school teachers in California, but it raises much broader questions. The future of public-sector unionism itself could be at stake. Let’s sort this out, simply. …

Could SCOTUS case make U.S. a Right to Work nation?
Source: Ohio Civil Service Employees Association – AFSCME Local 11, AFL-CIO (OCSEA), July 8, 2015

The plaintiffs in Friedrichs are seeking to overturn a long-standing Supreme Court court case that gave public sector employees the right to collectively bargain in the first place. The case, Abood vs. Detroit Board of Education, gave public sector employees the right to form a union and ensured that everyone who benefited from a union contract paid their fairshare of union dues. In addition to gaining exclusive representation, those provisions gave public employees the bargaining power they needed to powerfully represent themselves. IN the last 40 years, they’ve been able to gain pay raises, overtime pay, paid sick leave, vacation, disability pay, pick-a-post and work area agreements—and all those provisions that members have fought hard to win in the OCSEA contracts.

But now those very rights could be on the chopping block when Friedrichs is taken up by the U.S. Supreme Court as early as the end of the year.

Groups like Americans for Prosperity, the Koch Brothers and the National Right to Work Committee have been trying to eliminate public sector unions state by state for years now.

But now these anti-union groups, the same ones behind Senate Bill 5, believe they have the case that will wipe out public sector employee unions in every state.

A negative Supreme Court decision in the Friedrichs case could do any or all of the following:
• Create a national Right-to-Work law for all public-sector employees by eliminating “Agency-Fee” or “Fair-Share.”
• Make it illegal for union dues to be withdrawn from an employee’s paycheck by eliminating Dues Check-off.
• Prohibit millions of public sector employees the right to select a union of their choosing by eliminating Exclusive Representation…..

Cal AG Files Brief in Opposition to Certiorari in Friedrichs
Source: Juhyung Harold Lee, OnLabor blog, June 4, 2015

Last week, California Attorney General Kamala Harris submitted a brief asking the Supreme Court to deny certiorari in Friedrichs v. California Teachers Association (previously discussed here and here), and thereby to let Abood live to fight another day. Harris’s brief — which was filed at the request of the Court after she initially waived her right to respond to the petition — tracks a number of the same arguments raised by the respondent unions in their separate brief.

What AFT members need to know about the ‘Friedrichs’ case
Source: Sam Lieberman, Tim Shea, Robert Morgenstern, American Federation of Teachers – AFL-CIO, News, May 11, 2015

….In Friedrichs v. California Teachers Association, a group of educators backed by a right-wing pressure group filed a lawsuit that has made its way to the highest court in America. It asks the court to decide whether public sector unions may continue to charge nonmembers a fee equal to the cost of representing them to their employer. This fee is called “agency fee” or “fair share.” In states where there is no fair share, the union must sign up everyone as a member—not merely a fair share payer—to keep the union strong. …. The court will choose what it decides on, but it is being asked to answer two questions: (1) whether public sector agency fee arrangements should be invalidated under the First Amendment; and (2) whether it violates the First Amendment to require public employees to opt out of paying full dues (as they must do now) rather than having to opt in, which would force unions to sign up members over and over again every year. ….. Friedrichs represents a real threat to workers, so we have two choices: We can agonize or we can organize. The AFT already is rising to this challenge, operating as if the justices will issue an unfavorable decision. Many of our members are working hard to sign up and activate members, especially by bringing nonmembers and agency fee payers on board as members….

Pushing Back: What every PSRP needs to know about member mobilization.
Source: American Federation of Teachers – AFL-CIO, PSRP Reporter, Summer 2015

….In the 1970s, a group of teachers in Detroit who did not want to join the Detroit Federation of Teachers or pay the agency fee brought a lawsuit, Abood v. Detroit Board of Education. They argued that having to pay the fee violated their First Amendment right to associate with whoever they wanted to. The Supreme Court upheld the agency fee, saying it did not violate the First Amendment.

Abood has remained the law of the land since 1977. However, over the past several years, the Supreme Court has decided two cases calling that law into question. In 2012, the court held in Knox v. SEIU that the First Amendment does not permit a public sector union to impose a special assessment unless a worker opts in. Two years later, in Harris v. Quinn, the court said the First Amendment prohibits the collection of agency fees from home healthcare providers, whom the court determined to be “partial” or “quasi” public employees, not full-fledged public employees like those in Abood.

Now there’s the Friedrichs case. The court will choose what it decides on, but it is being asked to answer two questions: (1) whether public sector agency fee arrangements should be invalidated under the First Amendment; and (2) whether it violates the First Amendment to require public employees to opt out of paying full dues (as they must do now) rather than having to opt in, which would force unions to sign up members over and over again every year…..

Friedrichs v. California Teachers Association Heads to the Supreme Court
Source: Antonia Domingo, OnLabor blog, March 9, 2015

In Harris v. Quinn, which we have covered extensively, the Supreme Court stopped short of declaring public-sector fair share fees unconstitutional. However, several commentators have noted that Justice Alito seemed to invite a case that would allow the Court to overturn Abood v. Detroit Board of Education and thereby invalidate public-sector agency shop arrangements. The Center for Individual Rights (CIR) may have presented the Court with just such a case. CIR represents the plaintiffs in Friedrichs v. California Teachers Association, teachers who claim that contracts requiring them to contribute to collective bargaining and administration costs violate their First Amendment rights….

….The case seems specially crafted for the Supreme Court. In the California district court CIR took the unusual move of filing a motion asking the court to rule in favor of the union. The court, in an opinion that can be found here, agreed. Because Abood is still good law the lower courts must follow Supreme Court precedent. California law also allows unions to collect agency fees to support collective bargaining. The district court recognized that a ruling in favor of the union would allow CIR to quickly appeal the case to the Supreme Court: “Plaintiff’s ultimate aim — and thus their request for judgment on the pleadings in favor of Defendants — is to have these precedents overturned on appeal.” CIR filed the same motion in the Ninth Circuit, which the court granted. The plaintiffs then filed their petition for writ of certiori on January 26, 2015. The Court has not yet announced if it will hear the case….
Friedrichs v. California Teachers Association
Source: SCOTUSblog, 2015
Docket No. Op. Below Argument Opinion Vote Author Term
14-915 9th Cir. TBD TBD TBD TBD OT 2015
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.