Tuesday, January 12, 2016

Friedrichs v. California Teachers Association

Friedrichs v. California Teachers Association et al.

In Friedrichs v. California Teachers Association ten teachers filed suit because they claim that many union stances taken in collective bargaining are bad for public schoolteachers and bad for the children they teach. They want the Court to rule that individuals have a right to choose whether or not they join a union. California and twenty-two other states require them to pay agency fees in lieu of union dues to support collective bargaining.

In all states that have adopted the option of a right-to-work as specified by the Taft-Hartley Amendments to the National Labor Relations Act the matter in question is irrelevant. Those states have already banned unions from collecting agency fees. California is not a right to work state and so anti-union groups like the Center for Individual Rights keep encouraging lawsuits hoping to bust unions.

On the Center for Individual Rights web site, Plaintiffs make a number of statements and claims that ignore two important previous Supreme Court cases: Abood v. Detroit Board of Education from 1977 and Harris v. Quinn from 2014. The new suit repeats the same claims just finished in Harris v. Quinn.

Abood v. Detroit Board of Education

In the case Abood v. Detroit Board of Education some public school teachers objected to the requirement in the Detroit Public School's collective bargaining agreement that required non-union members to pay a service charge in lieu of union dues. The Supreme Court allowed the requirement as payment for a non-member's "fair share" as long as the union used the non-member funds only for contract negotiations, contract administration and grievance procedures rather than for political or ideological activities.

Section 9(a) of the National Labor Relations Act (NLRA) of 1935 as amended and administered by the National Labor Relations Board requires the union to represent all employees in the bargaining unit not just its members following a majority vote in a democratic election to establish a union. Because United States labor law forces a certified union to represent all employees the Supreme Court declared a compulsory surcharge fairly distributes "the cost of the union among those who benefit" and "counter acts the incentive that employees might otherwise have to become 'free riders.' "

The court acknowledged in its Abood opinion that such a "fair share" provision has an impact on public employee first amendment rights of free speech, which is why they did not allow an agency fee to include any union dues that support lobbying or political expenses. The Supreme Court requires a partial refund of agency fees equal to the percentage of a union budget that goes for political uses. Plaintiffs in the new Friedrich v. CTA suit acknowledge the refund. I also note that corporate shareholders confront the same free speech issues when corporate boards pay to lobby, but without compensation where profits become a lobbying expense.

Harris v. Quinn

In the case of Harris v. Quinn concluded in 2014 the state of Illinois used federal funds for a Medicaid Rehabilitation Program. The Rehabilitation program provides federal funds for states to pay personal assistants chosen from a state approved pool of personal assistants who provide the in-home care. Three personal assistants in a bargaining unit of the Service Employees International Union petitioned a federal court for an injunction to end the non-union agency fee as a violation of their rights to free speech under the constitution. Petitioners wanted the court to abandon the doctrine established in the Abood case.

The Court voted 5 to 4 that the agency fee could apply to “full fledged” employees, only not to the special case of Illinois personal assistants. The majority opinion included a discussion of objections to the Abood opinion, but the majority decided not to overturn it.

In their written opinion the majority admitted “the wages and benefits of personal assistants have been substantially improved; orientation and training programs, background checks, and a program to deal with lost and erroneous paychecks have been instituted; and a procedure was established to resolve grievances arising under the collective-bargaining agreement . . . and we will assume that this is correct.”

Justice Kagen wrote a 25 page dissent that supported the Abood doctrine because “The only point in dispute is whether it matters that the personal assistants here are employees not only of the State but also of the disabled persons for whom they care.” A final point in the minority opinion suggested the majority found it too difficult to write a legal justification to throw out compulsory fees for labor unions when the court has relied on “fair share” rules in deciding cases involving compulsory fees outside the labor context.

Fredrichs v. California Teachers Association et al

In the present case of Friedrichs v. CTA anti union groups refuse to accept Harris v. Quinn when they can develop another claim that might destroy the agency shop in all the states. In Friedrichs v. CTA plaintiffs claim that collective bargaining amounts to a political act even though they admit those in the bargaining unit can get a refund for their part of the agency fee. In this way they want the Supreme Court to agree that contract negotiations, contract administration and grievance procedures are politics, which require a 100 percent refund of agency fees.

The court will have to overrule itself after just two years, since the Harris v. Quinn decision came June 30, 2014. Since both plaintiff and defendant alike know the court acts as a divided political body, the decision could go either way. However, the anti union groups have taken a few liberties in their public statements about their case.

The Center for Individual Rights writes on its web site that in collective bargaining the union claims to speak for all teachers. Instead Federal labor law requires the union to represent all employees in a bargaining unit of a certified union. The claim made by the Center for Individual Rights contradicts Section 9(a) of the Taft-Hartley Act. Section 9(a) reads “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: …”

The labor movement has endured free speech attacks for over a hundred years, nothing is new in Friedrich v. CTA. A hundred years ago business owners blamed strikes on outside agitators. Outsiders would come in and stir up the benevolent owner's happy and contented employees and cause a strike, but he was not going to speak with any labor agitators because he intended to faithfully defend and protect the liberty and free speech for his loyal employees who did not want to join a union.

If employees in a union can be free to drop out as part of a right to work and free speech, then the Supreme Court ought to end the compulsory legal requirement for unions to represent free riders, or really freeloaders. A lawsuit that ends the agency shop but not the “exclusive representatives of all the employees” requires the Supreme Court to deny free speech and free association to unions and their members.

But There’s More

There’s more because one of the plaintiffs in the Friedrich v. CTA suit, a teacher named Harlan Elrich made a variety of personal complaints about unions in an op-ed piece in the January 3 Wall Street Journal. He complains because his “union spends resources pushing for ever-higher teacher salaries.” He favors “decent salaries” but claims teachers are “already well paid compared with everyone else in the Central Valley.”

He complains because the union negotiates policies for “discipline, grievances and seniority” when he knows many of his colleagues are incompetent and the union represents them anyway. It does not seem to occur to him that the union has negotiated a procedure for internal due process to prevent arbitrary firings without cause and that given their legal obligation to represent all employees imposed on them by Federal labor law the union has no choice but to defend all members of the union.

He doesn’t like seniority either because he thinks younger teachers can be better than older teachers, but he ignores that younger teachers are also cheaper teachers and management may find advantage firing higher paid older teachers to replace with lower paid younger teachers, or replace them with even lower paid substitute teachers.

Mr. Elrich adopts each and every point of the upper class attack on teacher unions. His op-ed piece reads like a check list of points supplied by the staff at the Center for Individual Rights or the National Right to Work Legal Defense Foundation. Unions would do better getting their members more involved and lowering their dues, but organized labor will always have to confront divisive people like Mr. Elrich who can’t accept he’s just one of millions in the exploited working class, something he will always be. He seems not to know the wealthy upper class howl with laughter at fools like him.

No comments: