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John Sparks / December 14, 2015

Freedom of Speech and Public Employee Unions

U.S. labor unions have long been experiencing a decline. In 1954, union membership for both public and private sector employees combined peaked at 28.3 percent. Today only around 11 percent of all workers belong to unions. The overall rate of union membership would be much lower were it not for the public sector — teachers, police officers, other municipal workers — where the rate of union membership is considerably higher at nearly 36 percent. This higher rate among the public sector is why the outcome of Friedrichs v. California Teachers Association is a major concern for labor leaders.

U.S. labor unions have long been experiencing a decline. In 1954, union membership for both public and private sector employees combined peaked at 28.3 percent. Today only around 11 percent of all workers belong to unions. The overall rate of union membership would be much lower were it not for the public sector — teachers, police officers, other municipal workers —  where the rate of union membership is considerably higher at nearly 36 percent. This higher rate among the public sector is why the outcome of Friedrichs v. California Teachers Association is a major concern for labor leaders.

Rebecca Friedrichs is a public school teacher employed by the Savanna School District in Anaheim, California. She was once a member of the teachers union that represents the teachers at Savanna but resigned from the union in 2012. Despite her not being a member, the school district continues to deduct from her pay an amount generally equal to the union dues. This money ends up in the coffers of the California Teachers Association and the National Education Association and its local affiliates. This is made possible because the school district has agreed to an “agency shop” which essentially requires all teachers, as a condition of continuing employment, to pay either union dues or an equivalent amount called an “agency fee.”

Current law concerning these agency fees is based on a case decided nearly 40 years ago — Abood v. Detroit Board of Education (1977). According to Abood, Rebecca Friedrichs is required to pay for union expenditures that are used for “collective bargaining, contract administration, and grievance adjustment” but not that portion of union expenditures that finance political/ideological activities of the union such as the support of political candidates. The Supreme Court in Abood went on to say that compelling employees to pay fees to support the union’s political/ideological causes such as lobbying and candidate support, with which they may not agree, is a violation of their First Amendment rights. In order to get back that “ideological/political” portion of the agency fee, Rebecca Friedrichs is required to apply each year for a refund of monies that the union had no right to claim in the first place. If she and the other non-member teachers miss the deadline for filing, they get nothing back.

In the lawsuit, Friedrichs and other teachers object to the cumbersome process by which they must retrieve the portion of the union’s fee devoted to political causes.

Friedrichs and her fellow petitioners raise a second and more fundamental complaint. They argue that even the part of their pay check that is currently claimed by the union for its “collective bargaining services” violates their First Amendment rights. Public employee union leaders fear that if this view is upheld by the Supreme Court, the potential loss of non-member generated fees nationwide will be in the millions of dollars.

Are the First Amendment rights of this handful of California teachers in jeopardy? If so, how? Friedrichs says that non-member teachers are being compelled to financially underwrite negotiating positions taken by the union during contract deliberations that are political and ideological in nature and are contrary to their interests and their political views. Friedrichs maintains that Abood made a false distinction between negotiations with public school districts, on one hand, and other more obvious political lobbying and candidate support on the other. Her brief argues that both activities are designed to influence government decision-making with which non-members may well have disagreement. Both are political and ideological. The First Amendment principle that persons cannot be compelled to support speech by others with which they disagree, says Friedrichs, means that the union is violating the constitutional rights of the non-members when it involuntarily collects agency fees from them that further ideological negotiating positions.

Friedrichs and her fellow teachers are correct. Repeatedly, union negotiations with tax-supported public school districts aim at producing public policy outcomes with much the same result as direct political action. For example, when unions bargain for fixed-scale pay steps that increase depending largely on seniority (years of service), they negate a public-pay policy tied to individual teacher merit and effectiveness. When they stake out positions on a host of other topics — classroom size, medical and retirement benefits, transfer, reassignment, termination of teachers — they seek to influence public school districts to adopt those policies.

The Supreme Court should end this compelled support for the public employee union’s policy agendas. If due-paying union members choose to support these political/ideological positions taken by their union across the bargaining table, let them be the ones to pay, not their unwilling non-member colleagues.

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