Under the clear and unambiguous language of the First Amendment, union leaders have every right to support gay marriage and to politick on behalf of legalization efforts. But they should not have legal cover to use the dues they collect from non-union employees to advance that agenda without their consent.
That’s what Rebecca Friedrichs, and nine other school teachers in California, are now arguing in a suit they filed with the U.S. District Court for the Central District of California this past April. They are joined by the Christian Educators Association International (CEAI).
The plaintiffs are challenging California’s “agency-shop” law, which compels teachers to pay union fees as a condition of public employment, even if they are not members of the union. The coup de grace came in 2008, Friedrichs explained, when the teachers’ unions began running political advertisements that told voters their members were opposed to Proposition 8. This was the ballot initiative that would have amended the state constitution to say “only marriage between a man and a woman is valid or recognized in California.” For teachers who are now aligned with CEAI, this is an article of faith. Yet, the unions were permitted to organize campaigns that falsely informed friends, colleagues and family members they would be voting the other way. Moreover, the misleading messages were paid for in part by the teachers who supported Prop. 8.
“A lot of us were very offended by these advertisements,” Friedrichs said . “We are on the opposite side of this debate and do not support efforts to make gay marriage legal. But the unions used our forced union dues to pay for all sorts of advertising to paint us with a broad brush to say we supported gay marriage when we did not. We didn’t feel that it was right for our personal money to be taken and sent to support political campaigns set up to defeat something we were voting for.”
Here’s the problem.
In a series of rulings that reach back to the mid-20th Century, the U.S. Supreme Court carved out an exception to the First Amendment that remains operative today. Since unions were appointed to represent the best interests of all employees during the collective bargaining process, the idea was that there should be no “free riders.” Therefore, the court reasoned, even non-union members must pay dues. But in recent years, it has become more difficult to distinguish between what is a “chargeable” expense for the purposes of collective bargaining and what is political.
“There was a time when unions were primarily about protecting the rights of workers, but somewhere along the line they became involved in a one-sided political agenda,” Friedrichs observed. “I know a lot of other teachers and we all have very different points of view and we are all coming to different conclusions. So, I don’t think every teacher should be coerced into paying for political activities many of them do not support.”
The Center for Individual Rights (CIR), a public interest law firm based in Washington D.C., has taken up the case in partnership with Jones Day, an international law firm. The suit is the first to challenge the use of mandatory agency fees even for supposedly non-political collective bargaining expenses. In their view, collective bargaining with a public employer is inherently political. In addition, the plaintiffs’ attorneys are aiming their arrow against the “opt-out” system the Supreme Court approved in the 1977 Abood v. Detroit Board of Education ruling. Here, the justices said public employees who did not want to pay for political expenditures still had to pay all their dues up front, but could receive a refund later. This arrangement was later extended to include private unions in the 1986 Communication Workers of America V. Beck ruling.
In California, teachers who resign their union membership must still pay about $1,000 in annual agency fees. If they wish to receive a refund on that portion used for political activities, which usually amounts to about $300.00, they must then submit a letter each year by a certain date.
“This is the really novel part about our suit,” Terry Pell, the CIR president, explained. “We are challenging the mandatory collection of fees for collective bargaining expenses, which is now the law in 26 states that do not have right-to-work laws. And we are also challenging the opt-out system for political expenses, which we are saying should be replaced with an opt-in system.”
If successful, the suit would even the political playing field between union bosses and rank-and-file members who hold divergent views. This may be most evident where ballot initiatives are concerned. California’s union operatives spent $75 million to defeat Proposition 32, which would have prohibited public employee unions from using payroll deductions for political purposes. The initiative, which was on the ballot in Nov. 2012, had a significant lead in the polls before the unions went to work with the money they collected from members.
“Our suit would settle this question for all time, so we could avoid these legislative, political fights,” Pell said. “This does not get into whether anyone believes unions or good or bad, we don’t take a position here. Instead, we are talking about what the First Amendment rights are for teachers. Everyone can agree that individuals should not be forced to pay money to an organization they do not agree with.”
In an exchange with the Associated Press, Frank Wells a spokesman for the California Teachers Association (CTA), described the suit as “baseless” and “contradictory” since the plaintiffs acknowledge there is process available allowing them to “opt-out.” In response, the plaintiffs claim the “opt-out” process is overly cumbersome and unconstitutional because they are in effect loaning money that is still used to support political activities.
“There’s a lot of name calling and a lot of intimidation toward those of us who do opt out,” Friedrichs said. “The dream I have is for unions to work for our business and to market themselves to us, and to say this is what we have to offer you if you hire us. That’s far better than the existing arrangement, which forces us to join and pay dues for activities that we do not support.”
But there appears to be widespread consensus on both sides that the case will be fast-tracked to the U.S. Supreme Court as it involves long-standing precedents. The suit names CTA, the National Education Association (NEA), and 10 other local affiliates as the defendants.
To propel the case on to the appellate courts, the plaintiffs have asked the district court judge to rule quickly on the basis of the initial pleadings without discovery or a trial. The plaintiffs note that the lower courts are bound by Supreme Court precedent and thus discovery or trial are unnecessary to the district court’s ruling in the case.
This is also the position of California Attorney General Kamala Harris who recently announced that she will intervene in the case to defend the existing statute authorizing the mandatory collection of union dues. Pell expects that a decision from the district court moving the case up to the Ninth Circuit Court of Appeals will come in late November.
“You can’t just assume as a matter of law that the collective bargaining agent represents the interests of all employees,” Pell said. “The courts have been wrong about this all along. They’ve held a theoretical view that does not correspond with reality. The unions often push positions many teachers disagree with during the collective bargaining process.”
Unions, for example, persistently push for higher taxes in the midst of their negotiations to support public employee benefits that many teachers view as being overly burdensome to their communities in difficult economic times. The plaintiffs also contend that they should not be forced to pay for the “California Educator,” a union magazine that remains classified as a chargeable collective bargaining expense, even as it promotes very left-of-center political views.
In his majority ruling in Knox v. Service Employees International Union last year, Associate Justice Samuel Alito made it pretty clear that he agrees. SEIU officials had created a special assessment to pay for political campaigns in an effort to counter several state ballot initiatives that were viewed as anti-union. But since the assessment was instituted in a way that did not allow for anyone to opt out, the court ruled that the union violated the First Amendment rights of non-union members. But in his opinion, Alito went a step further to say that the opt-out system may not be a sufficient safeguard.
“This is a classic example of the way the Roberts Court works,” Pell said. “The justices signal doubts about the continued viability of a certain line of precedents, which invites further challenges.”
Much to the consternation of union bosses who have grown accustomed to drowning out voices of dissent, this one would restore the First Amendment to its proper station within the context of labor law.
Feature Photo Credit: Stacy Bengs/AP
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