SAN FRANCISCO – Pro-corporate education anti-union groups have taken aim at California teachers unions with two separate lawsuits – one of which would strip away the right for unions to collect “fair pay” or “agency fees” from non-members; and another which argues the right of workers to be represented by the union, and to vote in union elections, but to not have to join the union or pay agency fees.
The first of these suits, Friedrichs vs California Teachers Association – currently on appeal at the United States Supreme Court, would strip away the right upheld in Abood vs Detroit Board of Education for unions to collect “fair pay” or “agency fee” funds from non-members of the workplace union, which are fees deducted automatically from the paycheck that match the amount of the union dues.
The plaintiffs in the case argue that union dues, fees, and the process of collective bargaining itself constitute political activity that potentially violates their freedom of speech, if they disagree with the decisions of the union and how funds are deployed by the union.
The Center for Individual Rights, a conservative law firm representing the plaintiffs in Friedrichs, gives an optimistic assessment of their success in the case, based on the recent past decisions on labor by the USSC:
“In 2010, a majority of the Court signaled that the time may have come to revisit this approach. In Knox v. SEIU, 567 US ___ (2012) Justice Alito wrote for the majority that:
“Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences,” these sorts of “compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.“
Conservative success in the ruling of Harris vs Quinn also signaled a willingness by the USSC to weaken labor on “First Amendment” grounds.
Bain vs CTA also bases its attack on the unions using “First Amendment” arguments. In Bain, the plaintiffs argue their right to be represented by the union and be permitted to vote in union elections, but to not have to join the union or pay agency fee payments, on the grounds that the union might decide to do something in a democratic process that the minority objects to. The lawsuit, if successful, could lay groundwork for the success of Friedrichs.
Bain vs CTA is being funded by anti-teachers’ unions Michelle Rhee’s former organization, StudentsFirst, in their first salvo against California teachers.
Both lawsuits employ logic used in previously successful anti-labor lawsuits, however, it is clear that the real goal is stripping away the ability of public sector unions to collect fees from non-members, thereby hamstringing the unions’ strength and political influence.
Michael Hiltzik of the Los Angeles Times said, “Bain vs. CTA should be viewed in the context of a long war against public employee unions. Among its landmarks were Gov. Arnold Schwarzenegger’s 2005 ballot initiatives to reduce teacher tenure rights and hamstring public employee unions’ authority to spend member dues on political activity. Both failed.”
California has the highest number of unionized workers in the country. If plaintiffs in both cases win, both the California Federation of Teachers and the California Teachers Association will lose the ability to automatically deduct fees, facing a loss of millions of dollars. It would also effectively create a right-to-work state for California public teachers: CTA presently represents 325,000 members and CFT represents 120,000 members.
The trajectory of such cases could lead to taking out the foundation of the Abood case for all public workers in the country. Labor attorney Moshe Marvit said, “It seems like in Alito’s decisions, he’s very much kind of laying the groundwork for destroying Abood and inviting a case that attacks it head-on. I think that’s what Friedrichs was made for, and I can’t imagine they won’t accept it. And if they do, if they don’t use it to kill Abood, I think they’ll just take one more kind of furious swipe at it. But I think over the next few years, it’ll probably be overturned.”
By 2016, three Supreme Court justices will be 80 years old. With a Democratic senate minority in the present legislature, liberal justices are reluctant to retire, since any progressive appointment for replacement by President Obama would be blocked by conservative filibuster. A conservative win for the White House, paired with a conservative Senate, has the potential to alter the legal landscape in the Supreme Court for decades.