Friday, September 17, 2021

Court hears arguments in union dues case


The Supreme Court of the United States heard oral arguments today in the case of Friedrichs v California Teachers Association, brought by 10 California teachers against the state’s teachers’ union, the New York Times and Washington Post report. Justices were said to be critical of the practice of forcing teachers who aren’t in the union to pay agency fees or “fair share” fees to support certain collective bargaining functions of teachers’ unions.

Caricature of Chief Justice John G Roberts Jr (DonkeyHotey / Flickr Creative Commons)

Teachers aren’t required to pay to support political activities in which unions engage, such as supporting candidates for political office or fighting for certain policies that affect how schools are run. The problem is, almost everything teachers’ unions do is political, since they’re bargaining with a governmental body in the public schools.

Current law, set down by a 1977 Supreme Court case that the current plaintiffs wish to overturn, allows unions to collect agency fees only for services that the law requires the union to provide to all employees in the bargaining unit, and not for political activity outside its role as the bargaining agent. The current law is somewhat of a compromise between the First Amendment rights of non-union members to speak freely and the rights of union members to bargain collectively. Employers, even government employers, compel employees to make monetary contributions to health insurance companies and pension funds, and the agency fees really aren’t much different from those compelled payments.

Besides, unions often provide refunds of the portion of any fees paid for political activity, but the teachers in this case are against the very requirement that they should have to pay the fees in the first place, even if they’re not union members. On purely free speech grounds, this fails the test, as it is clearly compelled speech if money is nothing more than a form of speech under the laws of the US. Lawyers for the union say, however, that teachers’ speech is never restricted, since they can always say or publish viewpoints that oppose the union’s position.

Justices weren’t impressed with the union’s argument, though. If a worker “is required to pay $500 for someone to espouse a belief that he doesn’t share,” Justice Anthony M Kennedy was quoted as saying, it would be small comfort “that he is now free to go out and argue against it. That means he has to spend another $500 so that it balances out? That makes no sense.”

A brief history of unions

Unions have been instrumental in the development of the labor force in America, especially during the Great Depression. Stories can be told, if you ask your grandparents, about how they woke up every morning to head over to a railroad yard, stood in a group with 200 other people and waited for the yard foreman to throw 20 or so chips in the air. Those workers who caught a chip earned the right to work a 16-hour day in the rail yard for about 25 cents. The other 180 people went home for the day, only to wake up and try again the next day.

Teachers’ unions today are a little different. They have layers of management, from local chapters that represent teachers at a single school or in a single school district, to national offices for the two major unions, the American Federation of Teachers and the National Education Association. They exist, at the local level, mainly to guarantee due process for teachers so that a principal can’t just hire his friend from college, an engineer without any teaching experience, or a cute woman who majored in English to teach the high school physics class, just because he doesn’t like you or has to pay you too much because you have higher credentials in the subject matter.

At the national level, though, union leadership has very little to do with teachers’ working conditions, salaries, benefits, or due process. National union leadership has evolved into advocacy for positions that increase the number of teaching jobs or increase teacher pay, in general, and many teachers across the country are indeed dissatisfied with national union leadership. We need only look at the AFT convention last year, which became famous for an exchange between leadership from Chicago and that from New York, to understand how disillusioned rank-and-file teachers have become with national union leadership.

Corporate leaders and philanthropists have backed the teachers in the Friedrichs case, because they fail to distinguish between local unions and the unionization movement, which is expressed, primarily, at the national level. But there’s even corruption and incompetence at the local level, as reports abound on the Internet of union leadership that has given in during due process hearings and failed to stand up to bullying principals or other school administrators.

Some companies have gone against the grain, like Costco, which pays its workers wages of $20 an hour, even without a union. These organizations know that stronger and better supported workers yield a stronger economy, middle class, and American values. Costco has been lambasted by shareholders, however, who want the company to pay workers less so their share value will increase. Elsewhere in private industry, though, unions have been closed down for the most part, and the only workers whose wages haven’t stagnated are unionized workers. The stagnation of wages among non-union workers in the economy is another reason corporate leaders want to decimate unions.

In other words, attacks against unions are coming from teachers at the national level, and corporate leaders are usurping those bad feelings to claim unions, even at the local level, are evil and bad for the economy. Unions fear that—if the Supreme Court rules, as it has long been expected to do, that teachers who aren’t in the union can’t be forced to pay agency fees—many will make the fiscally reasonable choice not to pay the agency fees and will therefore become freeloaders. Freeloaders benefit from the bargaining their local union does on their behalf but may be cast out in their schools as a scab—unless the union leaves them to negotiate their own contracts, in which case their wages would likely stagnate as wages have in mostly non-union industries. They just won’t pay fees to support that local activity.

Public opinion is split

The public sector has a few unions in it, such as police and firefighters. These unions will certainly be covered by this decision unless the Court finds some way to magically restrict this decision to teachers’ unions. The court’s more liberal wing said a ruling against the unions could affect compelled fees paid to bar associations by lawyers and to public universities by students as well. For example, since public universities lobby for certain laws that affect conditions at universities, at least some of the fees students pay to the university are supporting that inherently political activity.

But most commentators agree that the Supreme Court is likely, with this decision, to make it optional for non-union members to pay the agency fees. That could reduce the operating budgets for local unions, of course, but it would also, most likely, reduce the amount of money sent to the unions’ national or state offices, which comes to, maybe, one-fourth of the dues paid by members.

Some people view that as a blow to democracy, similar to the blow dealt to speech by ordinary people in the Citizens United decision. The decision would be “inhumane” and would strip “dignity” from our democracy, people write, since it would put more power in the hands of fewer people and return worker representation to the era of the Great Depression.

Others would view a win for the teachers as a signal to unions that they need to end the corruption to which they have succumbed. Some in this camp hope the decision will force unions to focus more on teachers and students, rather than on laws and political candidates. That is, these people are fine with unions at the local level but recognize that national union activity is guided more by corruption and large individual salaries for union leadership than it is by concern for the educational process or for quality and professionalism.

If the Supreme Court rules against the teachers, it would send a clear signal to billionaires and politicians, in the unions and out, that the people run things in a democracy, that people can elect new leadership to replace corrupt union bosses at both the local and national levels, and that the driving force behind positive change is the ballot, not the dollar.

As I said, though, that is not expected to be the decision. I therefore want to advise you to prepare for life in a post-Friedrichs world. Unions will still exist, and collective bargaining can still occur, but unions just won’t have as much money. They may not be able to hire lawyers to represent teachers in due process hearings. They may not be able to provide advertising for their favorite school board or presidential candidate, spending which creates a potential conflict of interest, since unions negotiate across the table from members of the school board.

But they will have a chance to be reborn. Even without a union, under the National Labor Relations Act of 1935, all workers have the right to engage in “concerted activity for mutual aid or protection” and “organize a union to negotiate with … employer concerning … wages, hours, and other terms and conditions of employment.” With union representation, which I suspect will continue, even if unions don’t collect as much money, employees will organize. Teachers are mostly autonomous in their own classrooms, but they share concerns with teachers in other classrooms in the school as well as in other schools across the country.

I can’t help but recall my recent hospitalization at Baltimore’s Shock Trauma Center. Doctors there performed five surgeries, and I was out of work for about 10 weeks. A condition of mine had become so bad that emergency surgery was required; without the surgery, my doctors said I would have died. A year later—I was discharged to a rehab unit on January 9, 2015—I have completely reversed the condition, lost about 90 pounds, and completely reprogrammed my lifestyle to be healthier so I’ll never be in Shock Trauma again as a patient. Sometimes, the patient needs to come close to death in order to be revived and reinvigorated.

A post-Friedrichs climate gives teachers, if they so choose and if their leadership is committed to such a direction strongly enough, an opportunity for rebirth, for a refocusing on important issues in our schools and classrooms, rather than in Washington or in the board rooms of our major corporations. Call me an optimist, but I am very hopeful, even though I honestly believe this decision should have been decided in a way different from the most likely outcome, given the valid free speech concerns the case has raised.

The only possible hole in the free speech argument is that it’s the union, not the school, that is compelling the speech. The First Amendment bars the state from restricting (or compelling) speech but generally doesn’t bar private organizations from doing so. Another way to look at it: Is the union the same type of entity as a political party? If they are in a fundamental way, monetary contributions to them can’t be compelled. We may find out when the Court renders its decision in this case if they are identical in scope.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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