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Supreme Court Agrees to Hear Challenge to Forced Public Employee Unionism

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When it comes to coercion, government employee unions are masters of the game.  But soon they will be contending 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 a federal district and an appeals court.  A group of school employees across California, led by an Orange County teacher, Rebecca Friedrichs (in photo), assert that the CTA has no authority to levy politically-oriented fees on non-members without prior consent.  In light of its 2012 Knox decision, not to mention the political character of many “non-political” bargaining issues, the Court may overturn the 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 once-small membership in recent years has risen to 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 a collective bargaining contract.  Under such clauses, 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 the union, 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 who were 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 in support of union-backed 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 union activities.  In a later bow toward 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 talks 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 usually have had to clear high hurdles, and at 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-based local of the Service Employees International Union had acted illegally in imposing a $60 per member annual special assessment on its members in 2005 to back an ad hoc group opposed to a pair of California ballot initiatives that year.  The measures, 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 in spending by unions and other opponents.  Nearly half of 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” of payment; 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 $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 adjuncts of the Democratic Party.  In practice, they support an aggressive expansion of the welfare state, even in instances where the issue goes beyond formal labor relations.  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. 

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