Friedrichs

Supreme Court could free public employees from being forced to pay union dues

June 30, 2017 By Larry Sand 5 Comments

The Friedrichs lawsuit should have done the trick. The case — full name: Friedrichsv. California Teacher’s Association — which would have made belonging to a public-employee union optional as a condition of employment nationwide, was set to pass muster with the Supreme Court last year. But when Justice Antonin Scalia died in February 2016, the almost certain fifth and deciding vote went with him, thus keeping half the country’s government workers forcibly yoked to unions.

But now a case similar to Friedrichs is upon us. On June 6, the National Right to Work Legal Defense Foundation asked the Supreme Court to hear Janus v. AFSCME, a case involving plaintiff Mark Janus, a child-support specialist who works for the Illinois Department of Healthcare and Family Services and is compelled to send part of his paycheck to the American Federation of State, County and Municipal Employees, even though he says that the union does not “represent his interests.” Right-to-work proponents are optimistic that the Court will hear the case and that Neil Gorsuch, Scalia’s replacement, will come down as the fifth vote on the side of employee freedom and overturn the 40-year-old precedent established in Abood v. Detroit Board of Education, in which the Supreme Court held that states may force public-sector workers to pay union dues, while carving out an exception for the funds that unions spend on political activity. Not surprisingly, the squawking from the union crowd has already begun. At Education Week, Mark Walsh refers to the litigants as “anti-union.”

The Janus case concerns only compulsory dues, or what the unions euphemistically refer to as “fair-share” payments. The Economic Policy Institute, an organization with strong ties to organized labor, claims that prohibiting fair-share payments could “profoundly affect the ability of millions of public-sector workers to improve their wages and working conditions and further the wage stagnation dragging down the economy.” But EPI is on thin ice here. First, the case will not affect unions’ ability to collectively bargain for their members. Second, between 1995 and 2015, the seven states with the highest private-sector job growth were all right-to-work, according to the U.S. Bureau of Labor statistics. Additionally, Mackinac Center director of labor policy F. Vincent Vernuccio and reporter Jason Hart point out that “from 2012, the year Michigan passed right-to-work, until mid-2015, incomes in Michigan rose over nine percent, faster than the national average.” Former research fellow in labor economics at the Heritage Foundation James Sherk explains that “studies that control for differences in costs of living find workers in states with voluntary dues have no lower — and possibly slightly higher — real wages than workers in states with compulsory dues.”

Benjamin Sachs, a Harvard Law School professor specializing in labor law, calls Janus part of “an aggressive litigation campaign aimed at undermining unions’ ability to operate by forcing them to represent people for free.” In fact, the only laws that compel a union to represent all workers are on the books at the behest of the unions. As teacher union watchdog Mike Antonucci writes, “The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves.”

Even if the Court decides to hear the case, a decision in Janus is most likely a year off. But the unions are planning for the worst-case scenario. California Teachers Association Executive Director Joe Nuñez wrote in January that the CTA should be prepared for a 30 percent to 40 percent membership drop, but then hedged, saying that he doesn’t believe that the decline would be that dramatic. (Actually, CTA has been anticipating a post-Abood world for several years. In 2014, the union cooked up a PowerPoint presentation called “Not if, but when: Living in a world without Fair Share.”) New York City teachers’ union leader Michael Mulgrew says that a national right-to-work outcome is inevitable. “We are going to become a right-to-work country. We are preparing for what we will do when that happens on the state and city levels. It depends on the provision in the laws and what states can do within that law — some states sign up members every year, others sign once.”

But whatever the membership drop might be, it will be damaging to the unions and could have widespread ramifications. And perhaps no group will be more affected than the Democratic Party. Naomi Walker, an assistant to AFSCME president Lee Saunders and a former Obama administration appointee, said that Janus “could undermine political operations that assist the Democratic Party.” She added, “The progressive infrastructure in this country, from think tanks to advocacy organizations — which depends on the resources and engagement of workers and their unions — will crumble. We need the entire labor and progressive movements to stand with us and fight for us. We may not survive without it — and nor, we fear, will they.”

It’s worth noting that in Wisconsin and Michigan, two recent entries in the right-to-work column, teachers’ union participation is down considerably. Wisconsin’s NEA affiliate has lost almost 60 percent of its members and Michigan about 20 percent thus far. The loss of these unions’ political clout certainly was a factor in giving Donald Trump narrow victories in both states. Should the Court decide for Janus in Janus, neither the apocalypse nor utopia will be upon us, but much will change. Most notably, many government workers will have much freedom than they have now, and the Democratic Party won’t have the same bundles of cash flowing from union piggy banks.

Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network and a contributor to City Journal’s book, The Beholden State: California’s Lost Promise and How to Recapture It.

This piece was originally published by City Journal Online

Filed Under: Top Stories Tagged With: Abood, Friedrichs, Larry Sand, Neil Gorsuch, Union

The Hypocrisy of Public Sector Unions

March 16, 2016 By Ed Ring 1 Comment

During the industrial age, labor unions played a vital role in protecting the rights of workers. Skeptics may argue that enlightened management played an equally if not greater role, such as when Henry Ford famously raised the wages of his workers so they could afford to buy the cars they made, but few would argue that labor unions were of no benefit. Today, in the private sector, the labor movement still has a vital role to play. There may be vigorous debate regarding how private sector unions should be regulated and what restrictions should be placed on their activity, but again, few people would argue they should not exist.

Public sector unions are a completely different story.

The differences between public and private sector unions are well documented. They operate in monopolistic environments, in organizations that are funded through compulsory taxes. They elect their bosses. They operate the machinery of government and can use that power to intimidate their political opponents.

Despite these fundamental differences in how they operate, public unions benefit from the still common perception that they are indistinguishable from private unions, that they make common cause with all workers, that they are looking out for us. This is hypocrisy on an epic scale.

Hypocrites regarding the welfare of our children

The most obvious example of public sector union hypocrisy is in education, where the teachers unions almost invariably put the interests of the union ahead of the interests of teachers, and put the interests of students last. This was brought to light during the Vergara case, which the California Teachers Association claimed was a “meritless lawsuit.” What did the plaintiffs ask for? They wanted to (1) modify hiring policies so excellence rather than seniority would be the criteria for dismissal during layoffs, (2) they wanted to extend the period before granting tenure which in its current form permits less than two years of actual classroom observation, and (3) they wanted to make it harder to dismiss teachers who were incompetents or criminals.

When the Vergara case was argued in court, as can be seen in this mesmerizing video of the attorney for the plaintiffs’ closing arguments, the expert testimony he referred to again and again was from the witnesses called by the defense! When the plaintiffs can rely on the testimony of defense witnesses, the defendants have no case. But in their appeal, the defense attorneys are fighting on. Using your money and mine.

The teachers unions oppose reforms like Vergara, they oppose free speech lawsuits like Friedrichs vs. the CTA, they oppose charter schools, they fight any attempts to invoke the Parent Trigger Law, and they are continually agitating for more taxes “for the children,” when in reality virtually all new tax revenue for education is poured into the insatiable maw of Wall Street to shore up public sector pension funds. No wonder education reform, which inevitably requires fighting the teachers unions, has become an utterly nonpartisan issue.

Hypocrites regarding the management of our economy

Less obvious but more profound are the many examples of public union hypocrisy on the issue of pensions. To wit:

(1) Public pension systems don’t have to comply with ERISA, which means they are able to use much higher rate-of-return assumptions. Private sector pensions are required to make conservative investments and offer modest but financially sustainable pensions. Public pensions operate under a double standard. They make aggressive investment assumptions in order to reduce required contributions by their members, then hit up taxpayers to cover the difference.

(2) One of the reasons you haven’t seen the much ballyhooed extension of pension opportunities to all workers in California is because the chances they’ll offer a plan where the fund promises a return of 7.0 percent per year are ZERO. Once they’re forced to disclose the actual rate-of-return assumptions they’re prepared to offer, and why, the naked hypocrisy of the public sector pension plans using higher rate-of-return assumptions will be revealed in terms everyone can understand.

(3) When the internet bubble was still inflating back in the late 1990s, and stock values were soaring, public sector unions didn’t just agitate for, and receive, enhancements to pension benefit formulas. They received benefit enhancements that were applied retroactively. Public pensions are calculated by multiplying the number of years someone worked by a “multiplier,” and that product is then multiplied by their final salary (or average of the last few years salary) to calculate their pension. Retroactive enhancements meant that this multiplier, which was increased by 50 percent in most cases, was applied to past years worked, increasing pensions for imminent retirees by 50 percent. Now, with pension funds struggling financially, reformers want to decrease the multiplier, but not retroactively, which would be fair per the example set by the unions, but only for years still to be worked – only prospectively. And even that is off the table according to the unions and their attorneys. This is obscenely hypocritical.

(4) Take a look at this CTA webpage that supports the “Occupy Wall Street” movement. What the CTA conveniently ignores is that the pension systems they defend are themselves the biggest players on Wall Street. In an era of negative interest rates and global deleveraging, public employee pension funds rampage across the globe, investing over $4.0 trillion in assets with the expectation of earning 7.0% per year. To do this they condone what Elias Isquith, writing for Salon, describes as “shameless financial strip-mining.” These funds benefit from corporate stock buy-backs, which are inevitably paid for by workers. They invest with hedge funds and private equity funds, they speculate in real estate – more generally, pension systems with unrealistic rate-of-return expectations require asset bubbles to continue to expand even though that is killing the middle class in the United States. This gives them common cause with the global financial elites who they claim they are protecting us from.

(5) In America today most workers are required to pay into Social Security, a system that is progressive whereby high income people get less back as a percentage of what they put in, a system that is adjustable whereby benefits can be reduced to ensure solvency, a system that never speculates on the global investment market. You may hate it or love it, but as long as private citizens are required to participate in Social Security, public servants should also be required to participate. That they have negotiated for themselves a far more generous level of retirement security is hypocritical.

The hypocrisy of public sector unions isn’t just deplorable, it’s dangerous. Public unions have used the unfair advantages that accrue when they operate in the public sector to acquire power that is almost impossible to counter. Large corporations and wealthy individuals are the natural allies of public sector unions, especially at the state and local level, where these unions will rubber-stamp any legislation these elite special interests ask for, in return for support for their wage and benefit demands. Public unions both impel and enable corporatism and financialization. They are inherently authoritarian. They are inherently inclined to support bigger government, no matter what the cost of benefit may be, because that increases their membership and their power. They are a threat to our democratic institutions, our economic health, and our freedom.

And they are monstrous hypocrites.

Ed Ring is the president of the California Policy Center.

Filed Under: Top Stories Tagged With: CTA, Friedrichs, pensions, unions, Vergara

How Government Unions Are Destroying California

January 29, 2016 By Bob Loewen 4 Comments

California was once the state that everyone looked up to. With the best weather and natural resources, we were full of hope and innovation. We had the best public schools, a world class system of higher education, the best freeways, infrastructure to provide fresh water to our growing population, which also doubled as a source of clean energy through hydro-electric power, a business-friendly environment where entire industries grew in entertainment, aerospace and technology, making our economy virtually recession-proof.

Then in 1978, then-governor Jerry Brown signed an executive order that imposed union-shop collective bargaining on public agencies in California, and the rise of public-sector union power began.

Today, public-sector unions are the most powerful political force in our state. They control a majority of our state Legislature and might control a supermajority in November if a few swing districts fall their way. No politician, Democrat, Republican or Independent, acts without considering how it will affect the union agenda.

These government unions press 100 percent for a progressive agenda, and they consistently agitate for increased spending. In two areas, the quality of our public education system and the financial health of our cities and counties, the consequences of government union power have been catastrophic.

Public Schools

The teachers’ unions, usually a local affiliate of the California Teachers Association, control most of our school boards, leading to control of our public schools. It is more than a coincidence that our public schools rank near the bottom in every category among the 50 states.

As lobbyists for staff and teachers, who are paid to run our public schools, public sector unions fight to maintain the status quo. They protect incompetent teachers, they permit excellent teachers to be dismissed in layoffs, they actively oppose charter schools, they fight poor parents who try to employ Parent Trigger Laws, and they conduct an active campaign 24/7 against any form of school choice.

The financial power of teachers unions:

There are over 266,255 public school teachers in California.
Each pays at least $1,000 in union dues annually.
The CTA acknowledges spending up to 40 percent of those dues explicitly on politics. That is $106 million per year.
If the lawyers in Friedrichs are right — that all public union spending is political — the actual total is $266 million per year.
Unions for non-teacher staff also are active. There are 215,000 school staff employees who are members of the CSEA (California State Employees Association), who each pay approximately $500 annually in dues. If all of those dues are spent on politics, that adds $107 million more for political spending annually.
The total spent by public education unions alone is estimated to be $373 million per year – just in California.

Pensions

Police and firefighter unions do the most damage at the local level. They have attained unsustainable pensions, known as “3%@50”, meaning that a member of that bargaining unit is eligible at age 50 for a pension equivalent to 3% of his highest salary times their number of years of service. While the age of eligibility has been raised for new public safety employees entering the workforce, the vast majority of active police and firefighters still retain these “3%@50” benefits. So at age 50, a 20-year veteran can retire with a pension equivalent to 60% of their highest year’s salary, which can be manipulated through spiking, and a 30-year veteran is eligible for 90% of his or her highest salary.

These pension requirements are held under the “California Rule” to be irreversible. In other words, once they have been adopted, democracy is incapable of turning off the spigot. With the spigot running constantly, communities go bankrupt. First, they cut other services. Then they increase taxes. Then they refuse to pay bondholders, so no one will invest again.

Current unfunded liabilities in California:

At CalPERS: $93.5 billion (ref. page 120, “Funding Progress,” CalPERS 6-30-2015 financial report).

At CalSTRS: $72.7 billion (ref. page 118, “Funding Progress,” CalSTRS 6-30-2015 financial report).

Local Unfunded Liabilities add considerably to this total, since CalPERS, with assets of $301 billion, and CalSTRS, with assets of $158 billion, only constitute 62 percent of California’s $752 billion in state and local pension fund assets. If all of these systems in aggregate were 75 percent funded, which is probably a best case estimate given the poor stock market performance since the official numbers were released, the total unfunded pension liabilities for California’s state and local government workers would be $256 billion.

And $256 billion in unfunded liabilities, a staggering amount, still understates the problem for two reasons: First, these pension funds may not succeed in securing a 7.5 percent average annual return in the coming decades. If not, then they will not earn enough interest to prevent their funding ratios from getting even worse. Also, this doesn’t take into account “OPEB,” or “other post employment benefits,” primarily health insurance. The unfunded OPEB liability just for Los Angeles County is officially recognized at over $30 billion.

A realistic estimate of the total unfunded liabilities for retirement obligations to state and local workers in California is easily in excess of $500 billion. These benefits, which are financially unsustainable and far more generous than the taxpayer funded benefits available to ordinary private sector workers, were forced upon local and state elected officials through the unchecked p0wer of government unions.

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Bob Loewen is the chairman of the California Policy Center.

Filed Under: Top Stories Tagged With: CalPERS, CalSTRS, CTA, Friedrichs, Jerry Brown, pension, Public Sector Unions, Unfunded Liabilities, unions

The Case That Could End Forced Union Dues

January 11, 2016 By Connor D. Wolf 3 Comments

The U.S. Supreme Court will hear from 10 teachers Monday in a case that could upend decades of labor law by granting public-sector workers the right refuse to pay union dues.

Generations of lawmakers and legal experts have struggled with the question of whether unions can require mandatory payments. The Supreme Court ruled in the 1977 case Abood v. Detroit Board of Education that unions can collect dues so long as the mandatory payments are used solely on representation costs and not political activities. Workers are allowed to pay fees instead of full dues if they don’t want to fund the political activities of the union.

Rebecca Friedrichs and the nine other teachers, however, don’t want to make any payments to the California Teachers Association (CTA). They also assert the process to opt-out of paying full dues or partial fees should be an opt-in system instead. The Supreme Court agreed Jun. 30 to hear their case. Here are the nine most important facts about Friedrichs v. California Teachers Association.

1. Free-Riders Or Captive Passengers

The question before the court is whether the teachers have the right to disassociate from their union. To the teachers and their supporters, the case could mean the end of laws that restrict worker freedom. To opponents, though, unions are what give workers a voice and limiting their power will adversely impact their ability to fairly communicate and negotiate with their employers.

The teachers have argued mandatory union payments violate their constitutional right to free-speech. They said the union often engages in activities or takes a position they neither support nor wish to fund. The union disputes the argument by noting they are legally compelled to represent the teachers regardless of whether they pay dues. Therefore its only fair all workers should have to pitch into the cost of representation.

“The court also has implemented various procedural requirements to ensure that unions are properly reimbursed for chargeable costs,” the union stated in its brief to the court. “While protecting objecting non-members from having their funds used for purposes not germane to collective bargaining and contract administration.”

When a union gets voted in as the exclusive representative for a workplace, they are required by law to collectively bargain for all the workers. Unions often warn workers could just free-ride on those benefits were dues an option.

“The free-rider argument is bad for several reasons,” Jacob Huebert, senior attorney at the Liberty Justice Center, told The Daily Caller News Foundation. “These people don’t consider the union to be a benefit.”

The teachers are allowed to leave their union but are still required to pay the representation fees. If they leave, they lose their liability services and the ability to talk at union meetings.

2. Who Exactly Is Rebecca Friedrichs

It all started when Friedrichs, while teaching out of Buena Park, Calif., tried to leave her union. She felt it benefited its members at the expense of the students. Though she could leave and forfeit most union benefits, she was still forced to continue paying dues. She and a group of other teachers were left with no choice but to file a lawsuit in April of 2013.

“Many of the things the union bargained for made it harder for me,” Friedrichs recalled Thursday during a phone interview with reporters. “To the union, salary and seniority came before everything else.”

Her first encounter with the union culture was when she was an assistant teacher at the beginning of her career. At the time, she said she felt as though the teacher who worked in the classroom next to hers was abusive towards her students. The teacher, she said, couldn’t be fired because the union had implemented a seniority structure. Friedrichs eventually took a leadership position in the union but was still unable to change what she saw as a bad culture.

“I wanted to be there to speak common sense,” Friedrichs said. “But the response from union leadership was to ignore everything I tried to do.”

3. The Case Goes Far Beyond Just Teachers

A decision in favor of the teachers is likely to go beyond just schools. All government workers could be granted the right to stop funding union activities since the teachers are technically public-sector employees. Such a decision could be devastating to the labor movement which has already lost a lot of members in the private-sector.

“It’s an extremely important case,” Huebert said. “It certainly might be a landmark case, especially if they side with Friedrichs.”

Huebert adds the case should only impact public-sector workers and not private. The Supreme Court will decide on a wide variety of issues this session, from how sentencing hearings are conducted to whether colleges admission offices should consider race. NYU Law Professor Richard Epstein, though, says the Friedrichs case could very well be the most important.

“This is a case that attracted scrutiny on both sides,” Epstein told TheDCNF. “In some ways this is the most important case this session.”

The case seeks to reverse the decision in Abood, which has allowed public-sector unions to require mandatory payments for nearly three decades. Abood also dealt with teachers, but the decision set a precedent that impacted all public-sector employees.

4. Are Public Sector Unions Done For? Probably Not.

Unions have argued on numerous occasions the case is aimed at destroying the labor movement. Membership is likely to go down, but many workers are still likely to stay unionized. Former Supreme Court Clerk Carrie Severino notes the case will not take down public-sector unions.

“It’s not a victory that will take down the unions,” Severino, now chief counsel for Judicial Crisis Network, told TheDCNF. “It just gives people the right to choose.”

Federal employees already have the right to not fund unions, yet membership is still fairly high. In states that have passed right-to-work legislation, all workers are allowed the same privilege, yet it hasn’t destroyed the unions. The policy, which has passed in 25 states, outlaws mandatory union dues or fees as a condition of employment. Terry Pell, a lawyer representing the teachers, predicts the membership drop will be slight.

“A 10 percent drop in members won’t impact their ability to bargain,” Pell said during a Thursday call with reporters. “The 25 states show that.”

Pell said the biggest difference once right-to-work is passed is that the salaries of union leaders go down.

5. The Beneficial Burden Of Collective Bargaining

Collective bargaining is the burden put on unions when they become the exclusive representative for a workplace. It means they are required by law to benefit all the workers they represent. Collective bargaining already comes with a huge benefit often overlooked during the free-rider debate.

“When you have a union whose already in power to be the monopoly bargainer,” Severino said. “That’s already a huge benefit to unions.”

The Heritage Foundation notes in a fact sheet that the union claim is very misleading. Exclusive representation is not the only way a union can organize workers. Unions can choose to only represent dues paying workers by becoming a member-only organization. A member-only union, though, would not have monopoly rights and therefore other unions could try to organize the same workplace. It’s an option they tend to avoid.

6. Recent Cases Give Union Critics Hope

Supporters are optimistic the court will side with Friedrichs given recent decisions. In the 2015 case Harris v. Quinn, the court ruled Illinois state home healthcare workers could not be forced to pay union dues. The decision found a middle ground by only applying to the workers upon whom the case was centered.

The court was faced with the question of whether home healthcare providers were public-sector employees. State healthcare workers are required to fund the union which represents them. The Friedrichs case has a much broader scope. Teachers are already considered public employees, therefore a decision in their favor is much more likely to impact all government workers.

“The middle ground is essentially accepting the opt-in argument,” Epstein stated. “That’s why this case is so much more important than Harris.”

7. The Powerful Groups Behind The Case

The Center for Individual Rights (CIR) is a non-profit public interest firm representing Friedrichs and the other teachers involved in the case. Pell said they looked for teachers that were willing to join onto a lawsuit. For a case to be considered by the courts, the plaintiffs must have standing by proving in some way they have suffered damages.

“We were pleasantly surprised when there were so many teachers focused on this,” Pell said. “It came together much more quickly than other cases.”

Pell added that the response showed them many teachers were discontent with their union. The case has also attracted a lot of attention from outside groups and lawmakers. The National Right to Work Legal Defense Foundation, the Mackinac Center for Public Policy, the Cato Institute and the Goldwater Institute have all filed legal briefs in support of the teachers. The organizations are primarily conservative and libertarian leaning. Labor unions have condemned the lawsuit as being nothing more than a coordinated attack by the right.

Nevertheless Labor unions are some of the most powerful political entities and fighting them is not an easy task. The AFL-CIO, AFSCME and the Service Employees International Union among others have banned together against the teachers. Even local unions have spoken out about the case. Some of the most influential unions have also submitted legal briefs urging the justices to rule against the teachers.

8. Workers Would Still Be Able To Unionize

Union leaders have claimed the case is an attack on the rights of workers to collectively come together. The teachers in the case, though, counter the argument by noting its actually about giving workers a choice.

“The main thing you need to know is that this is an attack on working people’s freedom to come together and form unions, plain and simple,” the AFL-CIO noted. “These are the nurses who make sure their patients have what they need to get well and the teachers who advocate for their students and class sizes.”

The case does not seek to prevent workers from organizing despite the union claim. A decision in favor of the teachers would be very unlikely to outlaw the right to unionize. Instead it would simply mean public-sector employees would have the right not to participate or fund their workplace union if they so choose.

“This case does not impact public employees and their right to join a union,” Pell added. “It impacts a union funding mechanism.”

Friedrichs notes unions would be compelled to do what’s best of their members if workers were free to leave.

9. How An Opt-In System Might Impact Unionization

CTA states the opt-out system is legal and fair. It allows workers the right to refrain from funding union political activities. If a worker doesn’t want their dues going to politics they can simply sign a form and mail it to the union. The teachers included as a secondary point to their lawsuit that an opt-in system would be fairer. Essentially public-sector workers would have to request to join a union instead of getting automatically enrolled.

“The right to opt out sufficiently protects both First Amendment guarantees and other core constitutional rights,” CTA noted in its brief to the court. “There is no justification for carving out a special exception based solely on petitioners’ animus toward statutorily recognized union activities.”

Critics contest opting out is not always easy for workers. Rules regarding membership are not the same in every union. Most unions only allow members to leave at certain points in the year. These opt-out windows are often not disclosed to members. Unions have also been known to ignore opt-out requests.

“They often don’t have good information on how to opt-out,” Huebert added. “And its often a difficult process.”

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This piece was originally published by the Daily Caller News Foundation

Filed Under: Top Stories Tagged With: ALF-CIO, California Teachers Association, Center for Individual Rights, CTA, Friedrichs, Friedrichs v. CTA, unions

Free Speech Rights on the Line as SCOTUS Hears Friedrichs Case

January 7, 2016 By Ed Ring 2 Comments

In less than one week the U.S. Supreme Court will begin to hear arguments in the case Friedrichs v. California Teachers Association, to determine whether unions can force public employees to fund speech through collective bargaining with which they might disagree. The case could result in a landmark decision impacting the First Amendment rights of millions of public sector workers nationwide. The California Policy Center joins hundreds of other organizations and millions of individual activists in urging the Supreme Court to rule in favor of the plaintiffs.

If the justices rule in favor of Friedrichs, the decision would not only take away government union’s ability to get public employees who do not pay them fired in the half of the states – most definitely including California – which do not have right-to-work, but would allow public workers to opt out of their union without needing to renew their objection every year. Here in California, the decision, which is expected in June 2016, would impact well over 1 million state and local public employees who are currently unionized.

The Friedrichs case rests on the argument that anything and everything that public employee unions negotiate is inherently political. We couldn’t agree more. To state an obvious example, negotiations between unions and elected officials over public employee pensions and pay are arguments over how elected officials should use public money – an inherently political question. Conceding to demands for higher salaries during an economic downturn – or at any time, for that matter – is a political choice. When public employees make more, either other services are cut, or taxes are increased. These are political decisions, not mere employer/employee issues.

While how public agencies spend taxpayers’ money is obviously a matter of public policy, the work rules negotiated by government unions also are inherently political. Union negotiated rules governing California’s system of public education provide examples of this in the form of “lifetime tenure” – awarded after less than two years in the classroom, dismissal procedures that make it nearly impossible to fire incompetent teachers, and “last in first out” layoff policies that reward seniority over merit. Conscientious teachers can be forgiven for believing these union rules, among others, are public policy decisions, inherently political, that have harmed California’s children. Yet they are forced to pay to support the unions who negotiated these rules.

The Friedrichs case, despite an avalanche of well-funded propaganda from unions, is not about whether or not unions even belong in the public sector. The point of the Friedrichs case, again, is that everything that public sector unions negotiate for is inherently political. And because they are inherently political, public employees should not be forced to fund these unions if they don’t want to, because that is a violation of their First Amendment free speech rights. You don’t have to restrict the scope of your argument to the explicitly political activities of government unions to make this case. Because everything government unions do, everything they fight for, affects government policy.

As a result, members of government unions should not be merely permitted to opt-out of the acknowledged “political” portion of their union dues, the amounts spent on political campaigns and lobbyists. They should be allowed to opt-0ut of paying all of it, including the so-called “agency fee.” And because these unions have made the “opt-out” process a difficult bureaucratic ordeal, where members can only opt-out during a certain limited time each year, and have to do that over and over again, year after year, paying union dues should instead depend on an “opt-in” process. This would mean the government unions themselves would have to obtain affirmative consent, year after year, in order to continue to collect dues from government workers.

Government unions are not just inherently political in everything they do. Their agenda is inherently in conflict with the public interest. Unlike private unions, government unions elect their own bosses. Unlike private unions, government unions can demand pay and benefits without having nearly the same concerns about how that may impact the financial health of their organization. And unlike private unions, government unions run the government bureaucracy, which means they can more easily intimidate their opponents. For these reasons, perhaps the Friedrichs case doesn’t go far enough. But it’s a very good start.

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Ed Ring is the executive director of the California Policy Center.

Filed Under: Top Stories Tagged With: Friedrichs, Friedrichs v. CTA, SCOTUS, Supreme Court, Teachers, unions

U.S. Supreme Court Close to Curbing CA Union Power

January 9, 2015 By Larry Sand 4 Comments

Last year marked a legal turning point for California’s teachers’ unions and public employee unions across the nation. First, Los Angeles Superior Court Judge Rolf M. Treu ruled in June that some of the teachers’ work rules—including tenure, seniority, and dismissal laws—violated the state and federal constitutions. That same month, the U.S. Supreme Court ruled in favor of the National Right to Work Legal Defense Foundation in Harris v. Quinn, holding that home healthcare workers could not be forced to pay agency shop fees to the Service Employees International Union (SEIU).

Treu’s ruling in Vergara v. California inflicted a flesh wound on the teachers’ unions, but Harris sent them reeling. The only way that the Supreme Court’s five-to-four decision could have been worse for the unions is if the justices had decided to broaden it to cover all public employees, not just a subset of them. Instead, Justice Samuel Alito drew a distinction between the home workers and “full-fledged” public employees, who currently must pay dues as delineated in the court’s 1977 Abood v. Detroit Board of Education decision. Nevertheless, Alito’s opinion left the door open for a more expansive court ruling later. He noted that Abood (which holds that the state may force public-sector workers to pay union dues while carving out an exception for the funds that unions spend on political activity) is questionable on several grounds, and went so far as to suggest that collective bargaining issues are inherently political in the public sector. Alito explained, “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.” Taking Alito’s reasoning to its logical next step, paying fees to a public-employee union would become voluntary in the 26 states, including California, where it’s now compulsory.

As it happens, a case working its way through the federal appeals process right now from California could be the catalyst for that decision. Friedrichs et al v. CTA pits 10 teachers and a union alternative called the Christian Educators Association International against the powerful California Teachers Association. The lawsuit, filed in 2013 by attorneys working with the Center for Individual Rights, takes aim at California’s “agency shop” law, which forces teachers to pay dues for collective bargaining activities, though (per Abood) paying for the unions’ political agenda is not mandatory. The plaintiffs’ lawyers challenging the statute echo Alito’s point out that collective bargaining is inherently political, and therefore all union dues should be voluntary. The Ninth U.S. Circuit Court of Appeals in November issued an order that clears the way for the plaintiffs to petition the Supreme Court. If the justices grant certiorari, a decision could come in 2016.

If the Supreme Court overturns Abood, it would change the political landscape drastically. When Wisconsin’s Act 10 made teacher union membership voluntary, the unions in that state lost about one-third of their membership and a substantial amount of clout. If the same percentage of teachers quit the California Teachers Association, the union would lose approximately $62 million a year in dues. Considering the teachers’ union spent more than $290 million on candidates, ballot measures, and lobbying between 2000 and 2013 — by far the most of any political player in the Golden State — such a loss would be crushing. And it’s no secret that CTA spending moves almost exclusively in a leftward direction. Between 2003 and 2012, the union gave $15.7 million to Democratic candidates and just $92,700 to Republicans — a ratio of roughly 99 to one. CTA has also spent millions promoting controversial causes such as same-sex marriage and single-payer healthcare, while opposing voter ID laws and limitations of the government’s power of eminent domain.

And the “fourth co-equal branch of government” wouldn’t be the only teachers’ union to learn what it’s like to live on voluntary contributions. The National Education Association, which hauled in nearly $363 million in forced dues in 2013–2014 and spent about $132 million of it on issue advocacy, would have to curtail its political largess considerably. Like the CTA, the NEA spends almost exclusively on progressive groups and causes. Over the years, the union has lavished gifts on People for the American Way, Media Matters, ACORN, Jesse Jackson’s Rainbow PUSH, and the Center for American Progress. Not surprisingly, the union’s political spending by party is lopsided, too. Between 1989 and 2014, the union directed just 4 percent of its campaign contributions to Republicans, usually backing the least conservative candidate in a primary election fight.

Like most union leaders, recently termed-out NEA president Dennis Van Roekel insists that all teachers should be required to pay the union. “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,” he said in June. Sounds reasonable. But what Van Roekel doesn’t mention is that the unions demand exclusive bargaining rights for all teachers. Teachers in monopoly bargaining states have no choice but to toe the union line. There is nothing “fair” about forcing a worker to pay dues to a union they wouldn’t otherwise join. If Friedrichs is successful and Abood is overturned, it would be a great victory for true freedom of association.

This article was originally published at City-Journal.org

Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network and a contributor to City Journal’s book, The Beholden State: California’s Lost Promise and How to Recapture It.

Filed Under: Top Stories Tagged With: CTA, education reform, Friedrichs, NEA, SEIU, unions