As a number of media reports over the past few days such as the Breitbart account linked below have pointed out, the U.S. Supreme Court case in Friedrichs v. California Teachers Association, which the High Court agreed to hear back in late June, is now underway.
On September 4, Orange County elementary school educator Rebecca Friedrichs and the nine other independent-minded California teachers who are her co-plaintiffs in the case submitted their petition on writ of certiori to the High Court. The Friedrichs plaintiffs’ counsel of record is Michael Carvin of Washington, D.C.’s Jones Day law firm. They are also being represented by three other Jones Day attorneys and by Michael Rosman of the Center for Individual Rights, a nonprofit public-interest law firm that is also based in our nation’s capital.
Just this past week, dozens of amicus briefs in support of the petitioners were filed. Among the organizations weighing in on behalf of Ms. Friedrichs et al were the National Right to Work Legal Defense Foundation, the Center on National Labor Policy, and the National Institute for Labor Relations Research, as well as the Cato Institute and the Freedom Foundation.
The Friedrich case, based largely on precedents argued and won by Right to Work Foundation attorneys, contends that California’s statute authorizing the termination of K-12 public school teachers for refusal to pay dues or fees for union bargaining activities, which is similar in key regards to laws now on the books in roughly 20 other states, violates the First Amendment of the U.S. Constitution.
Up to now, federal courts have acknowledged that public policies making financial support of a private organization a condition of government employment are “extraordinary,” but nevertheless upheld them as constitutional in jurisdictions where a single union may be recognized as the bargaining agent over all the rank-and-file teachers in a school district, all the cops or firefighters in a police or fire department, etc.
In a brief issued this spring in which they tried unsuccessfully to dissuade the High Court from taking up Friedrichs, lawyers for the California Teachers Association (CTA) union, the largest affiliate of the massive National Education Association (NEA) union, snidely summed up the consensus view among forced-unionism apologists.
The compulsory-fee regime to which the Friedrichs plaintiffs object, claimed the brief, “is simply a requirement that a nonmember teacher who receives the benefit of additional compensation as a result of the unions’ efforts in collective bargaining must pay a share of the unions’ costs in negotiating those improvements . . . .”
But before Jeremiah Collins, the chief counsel for the CTA/NEA union hierarchy, tries to repeat such a claim when he comes face to face with the Supreme Court, he should review the transcript of the oral arguments in Harris v. Quinn, a Right to Work Foundation case that was heard in January 2014 and decided that June.
Justice Samuel Alito, who ultimately wrote the Harris majority opinion, made it plain on more than one occasion he understands that significant numbers of nonmember public employees are, contrary to the unsubstantiated assumption of Collins and the rest of the CTA legal team, made economically worse off by “exclusive” union representation.
At one point, Alito cited the example of a “young employee” who is “not very much concerned at this point about pensions,” but “realizes there’s a certain pot of money, and it’s either going to go for pensions or it’s going to go for salary at the present time.” But government union officials, including teacher union officials, invariably push for a higher share of employee compensation to go into pensions rather than cash salaries or wages.
Consequently, as Alito put it, in states where public-sector compulsory unionism is permitted, the employee “who’s not a member of the union has to pay for the union to bargain with the — the State to achieve something that’s contrary to that person’s interest.”
As the amicus brief jointly filed by the Center on National Labor Policy (CNLP) and the National Institute for Labor Relations Research emphasizes, the issue of how high a share of compensation should go into pensions, as opposed to salaries (which in California is addressed through the political process, rather than through collective bargaining, although pensions are part of bargaining in many states) is far from the only case where the economic interests of many teachers may be in conflict with the positions advocated by union bosses.
For example, the brief, authored by CNLP Lead Counsel Michael Avakian, cites the 2006 case Kenmare Education Association vs. Kenmare School District No. 78, in which an NEA union affiliate in North Dakota went all the way to the state Supreme Court in an unsuccessful bid to prevent a school district from filling a speech language pathologist position with a starting salary higher than the rate dictated by the union contract. (Having repeatedly failed to fill the position at that pay level, the school district was at that time contracting out the job at an even higher cost.) Union attorneys lost that case when the state high court ruled that the school district had bargained to an impasse, but it illustrates the determination with which union officials oppose higher salaries for teachers in hard-to-fill positions.
In another case cited by Avakian, Crete Education Association v. Saline County School District, a Nebraska NEA union subsidiary successfully sued to prevent school officials from offering a signing bonus for an unfilled industrial technology teaching position.
Avakian also calls attention to multiple news reports regarding teacher union opposition to school reform proposals that would have enabled teachers who are especially talented and/or have relatively rare skills to earn higher pay.
The CNLP/Institute brief confirms that Alito was absolutely correct in suggesting that many K-12 public school teachers are being forced to “pay the union” to help it achieve things that are “contrary” to their “interest.” It will almost certainly be impossible for Collins et al to ignore this fact as the Friedrichs case proceeds.