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Will the Supreme Court Do an “Abood Face?”

The decision in Harris v Quinn could be just the first shoe to drop in the fight against forced union dues.

Last month was not kind to Big Labor. First, the teachers unions in California had some of their favorite work rules knocked out of the state constitution by Judge Rolf Treu in his Vergara decision. Then, on the last day of the month, the Supreme Court agreed with the National Right to Work Legal Defense Foundation in Harris v Quinn and ruled that homecare workers could not be forced to join the Service Employees International Union (SEIU).

Vergara upset the teacher union Pooh-Bahs who just can’t believe that educators who hang on to their jobs for 16 months aren’t entitled to them for life, regardless of whether they’re good, mediocre or teachers from hell. The decision is going to be appealed and no one knows –  if the appeal fails – how the subsequent replacement laws will play out. But if Vergara got the unions in a snit, Harris has pushed them into apoplexy.

Regarding Harris, I searched the internet long and hard to find a statement from a union leader that went something like this:

The decision doesn’t harm the union movement in the least. It gives hard working men and women the freedom to choose whether or not to join us. If they do join, they will enjoy the benefits and perks that come with union membership. If they choose not to join, we will not force them to. They are free to make whatever deal that they and their employer agree to. As patriotic Americans, we believe in liberty and that means giving all workers a choice.

Okay, I confess. I really didn’t search long and hard. In fact, I didn’t search at all; it would have been a complete waste of time. Instead, we were treated to union leaders doing what they usually do when they don’t get their way: trot out the usual half-truths, fear-mongering and lies to rally the troops and garner public sympathy.  Chalkbeat reports,

‘This court has built a record of weakening the rights of both voters and working families; no one should be surprised by this decision,’ said American Federation of Teachers President Randi Weingarten in a statement.

Weingarten is saying  that one working family has a right to force a member of another working family into a union.

Dennis Van Roekel, president of the National Education Association, the nation’s largest teachers union, defended the ‘fair share’ practice. ‘Fair share simply makes sure that all educators share the cost of negotiations for benefits that all educators enjoy, regardless of whether they are association members.’

There is nothing fair about forcing a worker to pay dues to an organization that he or she does not want to belong to.

The NEA website goes deeper into the “fair share” philosophy:

All union members who enjoy the benefits, rights, and protections of a contract should, in fairness, and must, according to Illinois state law, contribute to maintaining that contract. Sometimes called ‘agency fee,’ fair share is a percentage of full union dues, based on the actual cost of collective bargaining, contract maintenance, and other services provided to all union members. 

Well yes, all those who benefit from the union contract, should pay dues. But if they don’t want any part of your contract, why are you trying to force them to pay you?

Mind you, Harris was a narrow decision. Justice Samuel Alito’s ruling drew a distinction between the home care workers and ‘full-fledged’ public employees

… who were required to pay union dues under the Court’s Abood v. Detroit Board of Education precedent in 1977. In that sense unions dodged a more sweeping decision that could have jeopardized dues payments from all public workers.

But – and this is what’s scaring the spit out of unionistas – Alito added that Abood (which maintains that it is illegal to withhold forced dues from dissenters beyond the cost of collective bargaining) is “questionable on several grounds.” Collective bargaining issues, he wrote, “are inherently political in the public sector.”

In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government… But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government. (Emphasis added.)

Clearly, Alito left the door open for the court to do something of an “Abood face.” The next shoe that drops could lead to the unions’ worst nightmare – making union membership optional nationwide. (At this time 26 states are forced union states, while 24 are right-to-work.)

In fact, that “next shoe” is awaiting a fitting. Friedrichs et al v CTA is on a path to reach SCOTUS within a year or two. This litigation has ten teachers and the Christian Educators Association International – a union alternative – taking on the California Teachers Association with a lawsuit aimed squarely at California’s “agency-shop” law, which forces teachers to pay dues for collective bargaining activities, though – as per Abood – paying for the unions’ political agenda is not mandatory. The plaintiffs’ lawyers are challenging the law, claiming collective bargaining is inherently political and that all union dues should be voluntary.

Terry Pell, president of the Center for Individual Rights, a public interest law firm representing Rebecca Friedrichs and her co-plaintiffs, was upbeat after the Harris ruling was announced.

Today’s decision is a good sign of things to come. The Court will soon have before it another union dues case, one that asks it to recognize the First Amendment rights of all employees to decide whether to pay union dues, not just home healthcare workers.

He importantly added,

We’re not attacking collective bargaining. … That’s not at issue. All we’re saying is individual teachers get to decide whether to pay dues to that organization. You can have collective bargaining and you can have a strong union, but you don’t have to have compulsory dues.

If Friedrichs is successful, and the court overturns Abood, workers will have a choice. To paraphrase President Obama, “If you like your union, you can keep your union.” But if you don’t, you can’t be forced to join. Freedom of choice – sounds like the American way to me.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.

Opportunity Re-Knox

A recently filed lawsuit in California picks up where Knox v. SEIU left off.

In a case brought to the Supreme Court by the National Right to Work Foundation last June, the justices ruled 7-2 that the Service Employees International Union could not force its members to pay the part of union dues that goes for political activities, even if the union felt it was for the workers’ own good. As I wrote at the time,

Actually this decision didn’t break any new ground. Unions haven’t been allowed to force workers to pay for their political agenda since the 1970s and 1980s when several landmark decisions were handed down by the court. But SEIU Local 1,000 in California tried to hoodwink the rank and file. The case probably never should have reached the high court, but their involvement became necessary in order to overturn a decision from the far left Ninth Circuit Court of Appeals (or as it’s affectionately known to us left coasters – the Ninth Circus), which has become a regular occurrence these days.

The Wall Street Journal explained the specifics of SEIU’s chicanery,

The California SEIU local attempted to end run these protections in a special 2005 election and the midterms in 2006, amid a furious debate about union government perks. The SEIU joined a “Political Fight-Back Fund” to defeat two propositions that would have given then-Governor Arnold Schwarzenegger the ability in some cases to modify salaries, benefits and pensions. To fund this advocacy, the SEIU imposed a temporary 25% hike in union dues, never providing its 28,000 non-union members the Hudson notice that would have let them opt out.

The SEIU argued that lobbying against the ballot initiatives was really work on behalf of all workers. Yet that would erase the legal distinction between politics and collective bargaining. These activities may be especially fungible in public employee practice already, but this was too much even for liberal Justices Sonia Sotomayor and Ruth Bader Ginsburg, who concurred with the majority on the narrow if obvious grounds of technical precedent.

The chutzpah here is dazzling. As Steve Greenhut noted,

It’s ironic that SEIU took money from nonmembers to specifically battle a statewide proposition that would have stopped them from being able to take such money in the future. There’s something disturbingly totalitarian about that – making me give you money that you can use to stop me from exerting my rights.

In a lesser-known but very important ruling, the court went beyond Knox and addressed two larger issues:

1. Should union members have to opt out of paying the political part of union dues? (The way things stand, the default position is “in” and a worker must take action to opt out.) With Justice Samuel Alito writing the opinion,

… the court concluded that a longstanding precedent — that the First Amendment demands that non-union members covered by union contracts be given the chance to “opt out” of such special fees — was insufficient. Instead, the majority said, non-members should be sent a notice giving them the chance to “opt in” to the special fees. (Emphasis added)

2. Should public employees be forced to pay any union dues at all? (At this time, workers in 26 states and Washington, D.C. must pay union dues as a condition of employment. The other 24 states are “right-to-work” states where workers can choose whether or not to join.) Alito again,

Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights. (Emphasis added.)

As Huffington Post blogger Cole Stangler wrote at the time,

Knox v. SEIU could lay the foundation for future legal challenges over unions’ political spending and the dues collection process in general.

And lay the foundation it did on both counts.

Last week, the Center for Individual Rights, in conjunction with international law firm Jones Day, filed a suit in California. CIR’s press release explains that the litigation was initiated

… on behalf of 10 California teachers and the Christian Educators Association International, challenging the constitutionality of California’s “agency shop” law, which violates the First Amendment by forcing public school teachers to pay annual fees to support powerful teachers’ unions extensively involved in political activity. The suit was filed against the lead defendants, the California Teachers Association (CTA) and the National Education Association (NEA), as well as ten affiliated local teachers’ unions, and local school officials.

The lawyers in this case claim that the lines between “chargeable” or “agency fee” and “political” are very blurry and that the unions use their power

… to extract compulsory fees as a convenient method of forcing teachers to pay for activities that have little to do with collective bargaining. For example, the CTA considers the publication and dissemination of The California Educator, its internal and highly political magazine, to be a mostly “chargeable” collective bargaining expense. The CTA likewise deems programs dealing with gays and lesbians, including a “GLBT Conference,” to be predominantly “chargeable.” Also, the CTA spends millions of dollars every year on political contributions, mostly to support Democratic Party causes. The NEA, which receives a portion of the fees paid by every California public school teacher, likewise classifies expenditures as chargeable even though they appear to have little to do with collective bargaining, such as programs advancing various education policies or expensive conferences for NEA staff.

The litigation also addresses right-to-work issues,

Given the severe and ongoing infringement of Plaintiffs’ rights to free speech and free association, Plaintiffs respectfully request that this Court declare that California’s practice of forcing non-union members to contribute funds to unions, including funds to support their collective-bargaining activities, violates the First Amendment, and enjoin Defendants from enforcing this unconstitutional arrangement.

Needless to say, the unions are not happy about the lawsuit. CTA spokesman Frank Wells, speaking in boilerplate language, said that it is a “baseless challenge intended to dilute worker rights.” He went on to say that the claims are “another baseless attack on the concept of agency fees” and that “the concept of agency fees is sound.”

If the suit isn’t settled at the local level, it could wind up in the Supreme Court. Should that happen, the justices could take their opinion in Knox one step further and make joining a union voluntary. What a victory for liberty that would be! Greenhut is right – there is something indeed “disturbingly totalitarian” about forced union dues. It’s time to take Knox to its logical conclusion and give all workers the freedom to choose.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.