Why this California teacher took her union to the US Supreme Court

Rebecca Friedrichs is tired of subsidizing someone else’s political, social, and professional agenda. She objects to money being automatically taken out of her paycheck to advance causes and policies that she believes are wrong-headed or even immoral.

But because Ms. Friedrichs is a public school teacher in California she is required as a condition of employment to pay the teacher’s union $650 a year toward the union’s collective bargaining efforts.

Importantly, she is allowed to opt-out of contributing an additional $350 to fund the union’s political advocacy. But Friedrichs and her lawyers say that limited opt-out is not enough.

They argue that coercing public employees to associate with and financially support a labor union with which they disagree violates free speech and other protections of the First Amendment.

“I have no choice,” Friedrichs said in an interview. “No choice at all.”

On Monday, Friedrichs’s case arrives at the United States Supreme Court where the justices will consider whether to overturn a nearly 40-year legal precedent permitting public unions to require those who benefit from a union-negotiated collective bargaining agreement to help pay for it.

Labor leaders denounce the litigation by Friedrichs and a handful of other California public school teachers as a corporate-funded frontal assault to undercut the influence of public sector unions nationwide.

“No worker will benefit from weakening the collective bargaining power of a group like the California Teachers Association,” Lily Eskelsen Garcia, president of the National Education Association, told reporters in a recent teleconference.

She said such a ruling would mark a “radical shift in policy and practice” in the 23 states that currently allow unions to charge mandatory “fair-share” fees to non members as compensation for collective bargaining agreements negotiated on behalf of all workers.

Ms. Garcia and other union officials insist that union fair-share fees are necessary to avoid the problem of some workers attempting to free ride on hard-fought, union-negotiated agreements. Some warn that the free-rider problem threatens to undermine the unions’ ability to organize.

Friedrichs disagrees. Her perspective is tempered by 28 years as a public elementary school teacher and her past service as a representative on her local union board. During roughly half of her career she was a member of the teachers union, in part because she wanted a voice and an opportunity to improve public education.

But she says the teachers unions have become so large and powerful that they are no longer responsive to their members.

“The unions have become what they used to fight,” she says. “They have become powerful and entrenched and they are so focused on their own self preservation that they aren’t doing what is right for the members.”

When a California teacher refuses to pay the political portion of the full amount of union dues they are effectively cut off from interactions with the union, Friedrichs says.

“The union gives us no vote and no voice in collective bargaining and they take away our liability insurance and all of our benefits of membership just because we don’t want to support their overt politics,” she says. “We are paying 100 percent of the collective bargaining fees but we have no vote and no voice in collective bargaining.”

She adds, “The reality is that teachers like myself are ‘forced riders’ and the unions have been free riding off of us for decades.”

Unions and politics

Teachers unions are among the largest and most effective labor organizations in the country. The American Federation of Teachers has 1.6 million members and collected $177.4 million in dues and fees in 2013-2014. The National Education Association has 2.9 million members and collected $362.8 million in dues and fair-share fees last year.

The California Teachers Association, a state affiliate of the NEA, has 325,000 members and received $174.4 million in dues and fair share fees in 2013-2014.

The CTA is not merely an active participant in politics in California. It is considered by many analysts to be among the most powerful political organizations in the state. The union’s involvement is almost entirely on behalf of liberal causes and Democratic candidates.

From 2003 to 2012, the CTA made nearly $102 million in political contributions, with 0.08 percent allocated for Republicans, according to the complaint filed in the Friedrichs case.    

Roughly 30 percent of the union’s members are believed to be Republicans. Yet, less than 10 percent of CTA members undertake the procedures necessary to opt out of paying the political portion of the union’s full dues.

The argument that Friedrichs and others are making is broader than just the collection of fees for politics. Almost everything the teachers union does is political, Friedrichs says.

“My objection is that when you collectively bargain with a public official over the best use of tax dollars, that’s political,” Friedrichs says. “It is the taxpayers who are paying the bill, yet the taxpayers never get invited to the collective bargaining table.”

Friedrichs says politics is an essential component of a union’s collective bargaining from start to finish. Political dollars help elect union-friendly politicians who pass laws that set rules for collective bargaining that handcuff school administrators during negotiations, she says.

“We went into teaching to protect and educate little children, not to be political boots on the ground for some large political organization,” Friedrichs says.

It is not about teachers or education, she adds, it is about collecting money. “They are not asking me what I want. It’s not like I’m paying them for a service and they ask me what I want. That’s not what’s going on,” she says.

“The union says it is speaking on behalf of teachers, but really the union speaks on behalf of itself, and it is all because of this automatic dues paying regime,” she says. “They don’t have to be accountable to me or to my colleagues or to any of their members.”

Specifically at issue in Friedrichs v. California Teachers Association is an arrangement in which a labor organization is granted exclusive authority under state law to conduct contract negotiations for all employees in a particular workplace. Under that arrangement the union has a duty to fairly represent every worker in the negotiations, regardless of whether they are members of the union.

In exchange for that duty to represent everyone, certain states have granted the unions the power to require workers who are not members of the union but who benefit from collective bargaining to pay their fair share of the union’s cost of negotiating and administering the resulting contract.

The fair-share fee arrangement represents an attempt to balance two competing interests – the government’s desire for efficient contract negotiations and labor peace against each employee’s First Amendment rights to not be coerced into speech or associations with which they fundamentally disagree.

In his brief to the court on behalf of Friedrichs, Washington appellate lawyer Michael Carvin quotes Thomas Jefferson: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

Back to 1977?

David Frederick, a Washington appellate lawyer representing the unions, argues in his brief that the Supreme Court has already considered and correctly decided the issue in the Friedrichs case in 1977.

In Abood v. Detroit Board of Education, public school teachers who refused to join the teachers union were nonetheless required to pay the entire amount of union dues.

The justices embraced a balance in which nonunion members could be compelled to pay fair-share fees for collective bargaining by the union. But the court said nonmembers could not be forced to pay fees supporting the union’s political advocacy.

In that decision, the court recognized that negotiating an employment contract for public workers was, by definition, a political act involving policy making and the spending of tax dollars. The court also recognized that forcing dissenting workers to support the union in these efforts interfered with the workers’ First Amendment rights.

Nonetheless, the court held that “such interference as exists is constitutionally justified.”

Now, that assessment is being reexamined by the high court.

The issue has been framed by Justice Samuel Alito, who may have personal insight into how such matters play out among teachers and administrators. Justice Alito’s late mother, Rose, worked for 32 years as a public school teacher and school principal in New Jersey.

In related decisions issued in 2012 and 2014, Alito raised questions about whether the 1977 Abood precedent had been correctly decided. Legal analysts say Alito’s comments were an open invitation to lawyers to bring a new challenge to the high court.

The Friedrichs litigation is a response to that invitation.

One of the questions that will likely arise during Monday’s oral argument is what might happen to collective bargaining and public sector unions should a majority of justices agree to overturn the Abood decision.

Union supporters warn that mandatory fair-share fees are a linchpin of American public sector labor relations. If that linchpin is removed the system could come crashing down, weakening unions and jeopardizing the welfare of millions of workers, they say.

Friedrichs disagrees. She says one solution would be to allow people simply to choose for themselves whether to join and support a union.

“If we give people freedom to choose, I personally think the unions would improve,” she says. “They might go back to what they used to be because they would have to earn the respect and earn the support of the members.”

She adds: “If we win this case, I honestly believe the unions will become better. They will have to up their game and they will have to give members what members want – and people will want to join.”

A decision is expected by late June.