Catherine Fisk on Friedrichs v. CTA

Prof. Fisk breaks down the Supreme Court case to be decided in the 2015-16 term, Friedrichs v. California Teachers Association, which has the potential to weaken the role of public employee unions nationwide.

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  • Catherine Fisk

    Chancellor’s Professor of Law and Co-Director, Center in Law, Society and Culture
    Expertise: Labor and employment law, civil rights
  • Jonathan Glater (Host)

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks. 

[Jonathan Glater] Welcome to UCI Law Talks. Today I'm speaking with Catherine Fisk Chancellor’s Professor of Law here at UCI. She teaches and writes on the law of the workplace, legal history, civil rights, and the legal profession. We're going to talk about Friedrichs v. California Teachers Association, a forthcoming Supreme Court case which oral argument will be sometime later this year. Catherine thank you for joining us.

[Catherine Fisk] It's good to be here.

[JG] So first question to ask about this case is what prompted it?

[CF] This case was all but invited by the Supreme Court in an opinion in 2012 in which Justice Alito, for five members of the court, suggested that the longstanding regime governing public employee union dues is unconstitutional under the First Amendment.

[JG] What's the concern with union dues? How could union dues be unconstitutional? What's the issue?

[CF] It's a First Amendment issue. The First Amendment protects freedom of speech and the argument of Rebecca Friedrichs, and the teachers who joined her, is that by having to pay fees to the union that represents them, they are being forced to endorse speech that they disagree with.

[JG] Are there particular forms of speech or arguments/positions that they are resentful of?

[CF] Rebecca Friedrichs has particularly identified the teachers' unions opposition to vouchers that allow public money to be spent by parents on private and particularly parochial school and also what teachers are paid. The argument being that if teachers are paid more public education is more expensive. 

[JG] So are the concerns more the unions advocacy activities on issues or the unions activities kind of on behalf of member’s negotiations, I think?

[CF] Really the concerns are the unions advocacy issues in politics generally. That's the unspoken agenda in this case. Neither Rebecca Friedrichs nor any other California or any other public employee or private employee anywhere in the country has to join the union. All they have to do is pay a fee to the union that is required by law to represent them for purposes of bargaining and individual grievance handling in any workplace where a majority of the workers have voted to join the union. So all she's doing is paying for legal services that the union is required by law to provide to her. She's not forced to subsidize the union’s political activity on issues or candidates in elections. But, I think the attack on agency fees and the effort to make it impossible for unions to charge employees for the services that the union is required by law to provide, has as its long term goal eliminating public employee unions and that really has an underlying agenda of weakening the role of public employee union in electoral politics.

[JG] Can you tell us a little bit about Rebecca Friedrich, the plaintiff in this case?

[CF] She is a public school teacher in Orange County, California. She and the other petitioners in the case are identified as members of a Christian educator’s association that represents public school teachers who are Christians.

[JG] And what happened in the lower courts? How did how do we get to the Supreme Court, I guess?

[CF] This case was filed for the purposes of delivering a vehicle to the Supreme Court to overrule a 30-year-old precedent. Friedrichs represented by an elite law firm filed a lawsuit in the federal court here in Southern California and asked the court to enter judgment in favor of the defendants. When talented lawyers walk into court, file a suit and ask the court to rule against them, they're clearly trying to create a test case. Because the case is controlled by Abood v. the Detroit Teachers Association, the court did rule promptly against the plaintiffs. They appealed to the Ninth Circuit Court of Appeals and again, asked the court to rule against them without even conducting oral argument because they wanted to get a case to the U.S. Supreme Court as fast as possible, and they did. The court granted review at the end of June in 2015.

[JG] Now you mentioned that at least several of the justices had actually asked for a case like this. What is their concern?

[CF] Five justices ruled in a case in 2013 Harris v. Quinn that home care workers paid through Medicaid funds cannot constitutionally be required to pay fees to the union that represents them. But they limited the holding in that case, it was called Harris v. Quinn, to homecare workers. And although no justice actually asked for a case to overrule this 1977 case, Abood, the petitioners and conservative activists around the country saw the ruling and the opinion in Harris as an invitation to challenge the regime of public sector collective bargaining nationwide.

[JG] Sounds like we should talk about Abood. Can you tell us a little bit? What was Abood about and what the holding is that there's an interest in changing now?

[CF] Sure. In 1977, the Supreme Court ruled in Abood that public employee collective bargaining statutes can require employees to pay a fee to the union that represents them to defray the union's costs in negotiating an agreement that all employees benefit from and also in enforcing the agreement. The reason why that matters is that under our regime of labor law, a union is the exclusive representative of all the employees in a bargaining unit, a workplace or school district or whatever, and owes a duty of fair representation to every employee that it represents. It's like a majoritarian political system in which the people vote for a representative and the majority representative wins. Except the difference between the union regime and the political regime is that the union owes a duty of fair representation to provide equal and fair representation to everybody that it represents not just to those who voted for it. But if you have a regime in which the union selected by the majority has a duty to not just the majority but also to the minority, you also have to have a regime where the union can pay, it can get from its members and its nonmembers who it represents, the costs of the services that it has to provide. Otherwise, people will free ride. They'll say why should I pay a fee for legal services that I can get for free? Just as with taxes, the reason why all of us are compelled to pay our taxes whether we send our kids to public schools or support the war in Iraq or Afghanistan, whether we want more parks or more stop signs or repaved roads is because if we didn't all have to pay our taxes the economically rational thing to do is free ride. You get to drive on the roads and send your kids to public schools and you don't have to pay for it.

[JG] So this is the long game with respect to weakening unions, if I'm understanding this right. It's that if it becomes possible not to pay your union dues everyone will rationally choose not to pay their union dues and the unions will be that much weaker.

[CF] Exactly. Because what will happen is that union members will continue to pay their dues, the ones who are really the true believers, and their dues will have to be used to subsidize legal services, collective bargaining and contract grievance services for the non-payers. And eventually, people who are paying for the services for other people will get frustrated, the union will have less money and the whole regime will collapse.

[JG] Got it. Okay, I want to ask about the political implications in a moment but first is there reasoning, particular reasoning in Abood that is vulnerable that the justices will want to center their argument on?

[CF] There is. In Harris v. Quinn, an opinion for five members of the court by Justice Alito and Harris split on the same ideological divide with the five Republican appointees ruling for the union opponents and the four Democratic appointees ruling for the union. But in that case, Justice Alito said that free rider concerns are ordinarily not sufficient to justify a law that restricts First Amendment freedoms. And the argument that the petitioners are pushing is that the requirement to pay fees is compelled speech in violation of the First Amendment. I think however, there were reasons why the court may find it difficult to extend Harris to public school teachers in Friedrichs.

[JG] Like what?

[CF] A few things. First of all, in Harris, Justice Alito’s opinion emphasized that there wasn't a big free rider problem because the particularities of the law at issue in that case, having to do with home care workers in the state of Illinois, didn't impose many obligations on the union because most of the working conditions for home care workers in Illinois were set by statute so there wasn't much to bargain about. And also, according to the court, the union didn't have to handle grievances for individual home care workers. Now in Friedrichs, there is no evidence about the nature of the services that the union provides to its nonpaying nonmembers or its would be nonpaying nonmembers. There's no evidence about the extent of the free rider problem because there is no evidence in the case at all. Remember, plaintiffs walked in asked the court to rule against them, and then went right through the court of appeals. So if the law turns on whether there actually is a free rider problem on the facts, there are no facts in this case. But I think the bigger problem for the petitioner in Friedrichs is a couple of other Supreme Court decisions having to do with the First Amendment where Justice Scalia and Justice Kennedy have raised questions about this scope of First Amendment rights for government employees.

[JG] And what kind of constraints do you see that imposing on the court now for those opinions, I guess?

[CF] There are three cases that are worth noting. First in Garcetti v. Ceballos an opinion by Justice Kennedy, the court ruled that government employees have no First Amendment protection for their speech as employees. The First Amendment protects only their speech as citizens. That case involved a deputy district attorney who wrote a memo raising questions about possibly perjured testimony by a sheriff in a case prosecuted by the D.A.'s office. He was disciplined for filing for writing his memo. He argued that his memo was on a matter of public concern and should be protected by the First Amendment. The court disagreed and said his memo was written as an employee of the government and the First Amendment doesn't apply. It would seem to me that collective bargaining by a union over wages, hours and working conditions is speech as an employee not speech as a citizen. The second case that I think presents a problem for petitioners is Rutan v. Republican Party Illinois. This is an opinion by Justice Scalia holding that patronage as the basis for making government employee promotion decisions is a permissible way of the government deciding who to promote. He basically said look, some people think patronage is a good way of choosing who gets a job. He used the example of Supreme Court justices who are appointed to the court precisely because they are typically members of the president's political party. He said people sometimes disagree with that. Some people think a civil service regime is better where the political activities of the employees are irrelevant but, he said this is a decision about labor relations that we should leave the states to decide. And the degree of infringement on First Amendment rights in a patronage system is much greater than the degree of infringement on First Amendment rights of having to pay a fee to a union. In Rutan, employees were required to join the Republican Party and to be active on behalf of the Republican Party. And what that would also mean in Illinois is therefore if they were going to vote, they had to vote Republican, because Illinois didn't have an open primary. So essentially, they were coercing the votes of government employees. So it's going to be hard for Justice Scalia, it seems to me, to explain why the First Amendment is not offended by a state law that forces government employees to join a political party and engage in political activity on behalf of that party but is violated by a state law that requires employees to pay a fee to a union that represents them.

The third decision that's going to be a problem for the court in ruling for Friedrichs is a case involving the letter carriers’ union in which the court upheld the Hatch Act, which is a federal statute that prohibits federal government employees from engaging in partisan political activity while they’re off-duty. This isn’t an on-duty political activity, it's off-duty. And the court upheld the Hatch Act against a First Amendment challenge, holding that the government has a legitimate interest in restricting the off-duty, partisan political activity of government employees. So if there's no First Amendment right to engage in speech as an employee, no First Amendment right not to be forced as a condition of losing your job or getting a job to join the majority political party, and no First Amendment right to engage an off duty partisan political activity if you're a federal government employee, hard to see why there is a First Amendment right not to have to pay for a fee to a union for services that the union is statutorily required to provide.

[JG] So the cynic in me can see quite clearly what the reason might be for potentially inconsistent rulings in that area. So let's talk about the political implications. If unions were to be weakened by ruling in favor the plaintiffs and Friedrichs, what are the effects? Who's affected?

[CF] Democrats, that's who's affected. Twenty-five of the states currently have enacted statutes that make those states so-called right to work states, meaning unions in those states cannot collect from nonmembers a fee that represents the non-member’s fair share of the unions collective bargaining and contract administration costs. Those 25 states are the states in which it's harder to organize a union. For a long time, those were states in the south, in the southwest, and then recently we have seen that Michigan became a right to work state, Wisconsin became a right to work state. Right to work laws are pressed by conservatives, typically, because unions typically support Democrats and if you make it harder for employees to join a union, then you're going to make it harder for them to contribute voluntarily to a union's political activities. It's important to note that in no state can a union charge an objecting employee for the costs of the unions partisan political activity. The money that unions raise to support their campaigns in support of particular issues or particular candidates is raised voluntarily from their members same way the National Rifle Association raises money or the AARP or the ACLU or any other membership organization. But if you can weaken a union as an organization, then it's not an organization that's going to be out engaged in voluntary political fundraising.

[JG] Is it so easy to draw a bright line between funds used for contract negotiations, things that would seem to be the obligation of the union and the kind of advocacy that clearly the purpose of this case is to weaken?


[CF] At the extremes, sure. It's easy to draw a bright line. A big check that one would write out to the Bernie Sanders campaign is obviously political. Conversely, money that is spent to handle a grievance brought by a government employee who was wrongfully disciplined or fired is clearly germane to the union's role as a collective bargaining agent. There are cases in the gray area in between. For example, if the teacher's union is lobbying the school board for more money for better textbooks or more money to make sure that the parking lot has safe crosswalks painted in the lines so that kids and parents don't get run over in the parking lot after school, that looks more like a working condition less like political activity. But since they're doing it by political lobbying rather than through contract negotiations maybe that's a harder line to draw. It's always hard to draw lines.

[JG] So you're raising in an interesting question. I don't want to lose sight of the fact that we're talking about employees and employers, not just about kind of the macro political scene. What's at stake for workers and what might change for their employers?

[CF] With respect to the teachers’ union in particular, what is its stake is whether teachers are going to have an organized way for their voices to be heard in the formulation of their working conditions. Before there were teachers’ unions, teachers were essentially dictated to about how they were going to do their job. Reasonable minds can differ about how education policy should be implemented, about who should be hired as a teacher, who should be fired as a teacher, about how we should decide the number of kids in the classroom or whether teachers are going to monitor the playground during recess, or whether teachers are going to have to work long hours after school to tutor kids who are failing or to attend meetings to talk about education initiatives, or what have you. You can either have teachers sit down together with the principal and the other administrators and the school board and work those out through collective arrangements, or you can have the principal or the school board dictate it unilaterally. It particularly winds up being a problem in times of budget crisis. There are school districts that run out of money in the middle of the school year, putting the teachers to a choice either they keep working without getting paid, which happened for a long period of time during the Depression of the 1930’s where teachers worked for years without getting paid. Or in some cases, school districts that are badly managed run out of money and in some cases the teachers continue to teach even though they're not getting paid because they feel that devoted to their students. You know, in times of budget crisis teachers have thought it was better to hang together because it's better for them and better for their students. But it also means that they're going to have rules protecting their rights as employees and that before they get fired, there has to be some process to determine whether the teacher is actually a bad teacher and that's why he's getting fired or whether the teacher wound up teaching about Islam or about evolution and she got fired because parents pressured the principal over a political issue.

[JG] So in the big picture then regarding employee employer relationship this case moves us along a continuum, right? More favorable to employer power?

[CF] Absolutely. And although the teachers in this case say it's just about paying a fee to the union for representational services, they've been very clear in their brief to the Supreme Court that really what they object to is union representation on the basis of majority rule. They’re bothered that the union elected by the majority has the power to negotiate with the school district over education policy and they might disagree with that. They really are objecting to a majoritarian democratic way of working out education policy. And if they win Friedrichs, there's not a doubt in my mind that the next thing they're going to challenge is the long settled principle that the union that wins majority support is the union that represents everybody. And they're going to argue that, that violates their First Amendment rights to speak out to the school district individually. And they are going to try and get the Supreme Court to declare unconstitutional under the First Amendment, the public sector collective bargaining laws in all 50 states.

[JG] Wow. Do you have any predictions then about how Friedrichs is going to come out?

[CF] Well, we'll find out by June and predictions – he who lives by the crystal ball winds up eating broken glass. But let's just say that I think the court is going to have a hard job to draw a line between a First Amendment right not to pay a fee and a First Amendment right not to be represented by a union at all. And as conservative as some members of this court are, and as much as they believe unions are a bad way of governing the workplace, I don't know that there are five votes on the court to strike down the labor laws of the vast majority of the states. And if they find that exclusive representation by a labor union violates the First Amendment in the public sector, it equally does so in the private sector and I really don't think that the court is prepared to hold the National Labor Relations Act of 1935 unconstitutional after 80 years.

[JG] We're going to have to bring you back if they do. Catherine thank you so much for walking us through this.

[CF] It’s been a pleasure. Thank you, Jonathan.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California Irvine, School of Law.