Review of Friedrichs v. California Teachers Association - Union Case Before Supreme Court

By Brett Mittler

Friedrichs v. California Teachers Association

Is it fair to have to shell out any form of dues to a union whose views you do not agree with? Is it fair that they should collectively bargain on your behalf without your consent? The Supreme Court is set to rule on these very questions this term in Friedricks v. California Teacher’s Association, a case that could have tremendous consequences for the ongoing debate over union practices.

The Petitioners, a small group of public school employees, argued that the law set by Abood v. Detroit Board. of Education, 431 U.S. 209 in 1977 unfairly allowed for unions to become the exclusive bargaining representative for the school district. This led way establishing an “agency shop” agreement, which means that a school district may require an employee to join the union or pay the equivalent of dues to the in the form of a “fair service fee.”

We eagerly await the results of Friedrichs v. California Teachers Association that was heard before the Supreme Court in early January.

The question presented to the Court was: (1) Whether Abood v. Detroit Board. of Education should be overruled and public-sector “agency shop” arrangements are invalid under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively opt-out of subsidizing nonchargeable speech rather than to affirmatively consent?

CASE BACKGROUND

For nearly forty years, it has been settled that, although public employees who do not join a union cannot be required to pay for union related activities, they can be charged an “agency” or “fair share” fee. This is to cover the costs that the union incurs for that industry, for example collective bargaining. It may be likely after hearing the arguments that even the more conservative Justices appeared ready to overrule the 1977 decision and strike down these fees.

The First Amendment prohibits unions from compelling non-members to support activities that are not exclusively devoted to negotiations or contract administration. Unions must send notices to all non-members laying out the breakdown of chargeable and non-chargeable portions of the fee. As it currently stands, to avoid the non-chargeable fee the burden falls on the non-member to affirmatively opt out each year. Most individuals simply do not remember to do so and it should not fall on the average citizen to opt out; it should fall on the unions to not take advantage of ordinary citizens.

This case had been argued at the district court, which affirmed the precedent set in Abood v. Detroit Board. of Education. It has also been affirmed by the U.S. Court of Appeals for the Ninth Circuit.

ARGUMENT

The Justices seem to spend almost no time on the main issue before the court, that is whether requiring non-union members to pay a fee violates the FIrst Amendment. Instead, they seemed concerned that if the petitioners had a strong legal argument, the Court should still rule against them because of a doctrine known as “stare decisis.” This doctrine counsels the Court not to overturn a prior ruling unless there is a compelling reason to do so. The liberal Justices seem to understand the merits of Friedreichs’ case.

Overturning the previous opinion would have far-reaching consequences. Michael Carvin, who argued on behalf of Friedrichs, was told that the unions have entered into thousands of contracts that govern millions of employees, and overturning Abood would disrupt those contracts.

The respondents argued that there has been a long history of labor unrest in California since the 1960s and government involvement is crucial to fulfilling the state’s need for workplaces to run smoothly. They argued that the fees were necessary for them to to prosper and survive. The unions are trying to avoid the problems of a “free-rider,” but by charging the fees they are forcing those people to become a “compelled rider.”

This question was put to rest when the petitioners said that there are currently twenty-five state that outlaw these fees and they operate just fine. Furthermore, they pointed out that unions representing federal employees do not charge such fees.

We will know more in a few months when the Justices hand down their ruling. Until then, we eagerly await their decision.