January 13, 2016

Five Myths from the Oral Argument in Friedrichs v. California Teachers Association

First Amendment, Friedrichs v. California Teachers' Association, public employee unions, RubenJ Garcia

by Ruben J. Garcia, professor of law, University of Nevada, Las Vegas, William S. Boyd School of Law

*This post originally appeared on the blog for Hamilton and Griffin on Rights.

Media coverage of the oral argument in Friedrichs v California Teachers Association (CTA)shed more heat than light on the underlying legal issues in the case involving the constitutionality of agency fee statutes, which require those who are represented by a union in negotiations and grievance administration but disagree with the union’s objectives to pay a fee for the union being their agent, called an “agency fee” or “fair share fee.” Unfortunately, during the oral argument there were several statements by lawyers and Justices that furthered misconceptions about public sector labor law, and that mostly inured to the benefit of the plaintiffs who challenged California’s agency fee statute as a violation of their speech rights under the First Amendment. Here, then, are the five biggest myths clouding the oral argument in Friedrichs:

1. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.” – Justice Antonin Scalia

Justice Scalia’s statement goes to the heart of the problem for the respondent Union and the State of California. The premise that “everything is political” might apply to the politics of the Court, but it does not apply to the many mundane things that are in the collective bargaining agreements that were presented to the court in appendices to the briefs.   Justice Anthony Kennedy at one point in the argument read a laundry list of items that had public policy implications — merit pay, seniority, grievance procedures — but neglected to mention a multitude of noncontroversial items, such as breaks, mileage reimbursement, and professional development.

This new emphasis on the political speech aspects of bargaining is also a jarring departure from the Court’s prior precedents.   In Smith v. Arkansas State Highway Employees Local (1979), the Court held that collective bargaining with the state was not speech under the First Amendment and thus the State’s decision not to entertain bargaining with certain employees (in that case, state troopers) was not a constitutional problem. Further, in Borough of Duryea v Guarnieri, authored by Justice Kennedy, the Court held that a town police chief’s grievance was not a matter of speech but instead implicated the Petition Clause of the First Amendment, and even then was not a matter of public concern.   How can bargaining not be matters of constitutional concern in those cases brought by unions and union members, and suddenly implicate major constitutional concerns when the speech claim is brought by those who dissent from the union? Is it as Justice Stephen Breyer asked during oral argument, essentially, whether a special constitutional rule was being created just to harm labor unions? Clearly, this misconception has taken hold among five of the Justices, clouding prospects for CTA to prevail.

2. Justice Kennedy: “If—If you were to prevail, what would happen to private employers in a State which said there should be an – a union shop?”            Answer: “Nothing, Your Honor.” -Michael Carvin, on behalf of Petitioners Rebecca Friedrichs, et al.

The federalism implications of a decision striking down agency fees nationwide when 25 states have found them to be a positive and efficient way of organizing labor relations received less attention than the possible implications on the private sector, at least during the argument.

Federal labor laws have been upheld against constitutional challenges by groups such as the National Right to Work Legal Defense Foundation (NRTW) numerous times over the years, even when the only state action involved is the Government statute allowing agency shop, and the court or administrative action needed to enforce it. Nonetheless, Mr. Carvin dismissed the possible success of a constitutional challenge to the statutes permitting agency shop (the National Labor Relations Act and the Railway Labor Act),even though he must know that the NRTW has several challenges based on the theories ofFriedrichs and Harris v. Quinn, the challenge to the Illinois agency fee law the NRTW brought to the Supreme Court in 2014. In Harris, the Court first refused the invitation to overturn the 1977 case upholding the constitutionality of agency fees in the public sector,Abood v Detroit Board of Education — an invitation that they are now poised to accept.

In fact, a victory for Ms. Friedrichs and the other dissenting teachers would have ripple effects throughout the private sector. Although the court has tried to cabin the constitutional implications of its labor law decisions in private sector cases likeCommunication Workers of America v. Beck (1988) and Machinists v. Street (1961), an older precedent under the Railway Labor Act would likely cause the court to reexamine the constitutional implications of government mandated exclusive representation. In Steele v. Louisville and Nashville Railroad (1944), the Court dealt with the constitutional concerns of state-aided railroad unions discriminating on the basis of race by finding a duty of fair representation implicit in the union’s role as exclusive bargaining representative. That duty continues to be the quid pro quo for exclusive representation and agency fees to the union in the private and public sectors, and it would be at risk if the constitutional basis for agency fees was struck down by the Court in Friedrichs.

3. “I see no connection whatever between — what the city is willing [to] give in collective bargaining and whether you have agency fees.” – Justice Scalia

Much discussion during the argument involved whether or not public employee unions would “collapse” if Friedrichs won, as Chief Justice John Roberts put it. Labor advocates know that the question is not whether public employee unions will be extinct, but whether they will be effective without having the ability to collect dues on the front end and entertaining rebates, versus having to pursue reimbursement for their costs of grievance administration and collective bargaining after nonmembers have already received the benefits of bargaining. While there are certainly examples of unions that have thrived in right to work states (one example being the Culinary Workers Union in Nevada), the overwhelming weight of the evidence is that unions are weaker in states where they have to chase members for dues, not just in the political arena but also at the bargaining table.

Justice Scalia compounds his error later in the argument when he states: “Federal employee unions do not charge agency fees to nonmembers, and they survive; indeed, they prosper.” He seems unaware of the many cuts that workers at the U.S. Postal Service, Amtrak, the Customs and Border Patrol have taken in recent years.   If the membership in the unions representing those workers were more than 30 percent, it is likely that they would have been able to better stave off some of the concessionary contracts that they have endured, even without a right to strike under federal law. The CTA, by comparison, has 90 membership rate, and has contracts with school districts in California that are seen as models of employee protection, but perhaps that is why they and other teachers’ unions were the real targets of this litigation.

4. “Well, opt ­out is not always as easy as you ­­ as you say. In one of our prior cases, I think that anybody who wanted to opt out had to send a certified letter within a certain period of time.” – Justice Samuel Alito

Several commentators have pointed to a less drastic option for the Court than striking down California’s agency fee statute as unconstitutional: simply require employees to opt-in to bargaining rather than having to opt out. Justice Alito’s statement above is in response to the idea that those who really do not like what their union is doing can easily opt out, and he questions how easy opt-out is. The certified letter example he gives is from Knox v. SEIU Local 1000 (2012), which he authored, where the Court held that the union was required to get affirmative permission for a “political fight back fund” rather than simply rebating the amounts that bargaining unit employees disagreed with. Thus, it is inapposite to being able to opt-in or out of bargaining.

Those, like Ms. Friedrichs, who have refused to join the union have already opted out. They have opted out from all union activities except paying for the cost of grievance administration and collective bargaining, for which they are seeking reimbursement in this case. If a majority of the Court agrees with that characterization of bargaining, it is hard to see a compromise that would prevent the entire country from becoming “right to work,” or as I prefer to call it, “right to free ride.”

5. “You’re again talking about a whole class of persons whose speech has been silenced, not just one person.” –Justice Kennedy

In this exchange with attorney David Frederick, arguing on behalf of the Union Respondents, Justice Kennedy again assumes that the speech of the objectors is silenced, when in fact, they are simply minorities in a majoritarian institution, made up of most members have no quarrel with smaller class sizes, layoffs based on seniority, and higher wages (90% of CTA covered teachers are full members of the union).   Indeed, minorities should have democratic dissenting rights within the union, but agency fee statutes and the Court’s cases already allow dissenters to refuse to subsidize views that they do not agree with in everything from unions to bar associations to student organizations.

Further, and most disconcerting, this exchange involved Justice Kennedy turning his back on precedents, some that he authored, which allowed the government greater latitude to balance First Amendment rights to provide for the efficient role of government as employer.   Kennedy tried to distinguish these cases on the ground that they only dealt with one person – the deputy district attorney in Garcetti v. Ceballos (2006) or the single school teacher in Pickering v Board of Education (1968) – whereas agency fee statutes deal with a large number of dissenters.   The evidence, on the other hand, bears out the reality that few people dissent, recognizing the value of collective bargaining agreements and of participation in the union’s governance structures – but that is after the inertia of not paying for services you can obtain for free is overcome by agency fee statutes.

Justice Kennedy also elides the large number of union members whose speech is silenced. If bargaining with the government is found to be constitutionally protected political speech, perhaps the Court will revisit its holdings in Smith and Guarnieri,discussed above, where the Court held respectively that 1) excluding certain workers from bargaining did not raise First Amendment concerns; and 2) that a town police chief’s grievance for overtime pay was not a matter of public concern under the petition clause.   Or, perhaps as discussed above, they would overturn Steele imposing a duty to represent nonmembers fairly, since there would no longer be “state compulsion” for the members to be represented. But these are simply silver linings to the cloudy myths that prevailed over the oral argument in Friedrichs.