The Fredrichs Case

By Jane Weinkrantz

7/23/15

 

The Supreme Court’s recent decision to hear Friedrichs v. California Teachers Association, a case in which the plaintiffs, Rebeccca Friedrichs and the Christian Educators Association challenge the “agency shop” practice of collecting some union dues from everyone, even those who choose not to join, will likely determine the future of labor unions across America. If the California Teachers Association loses, unions will not be organizations that are automatically opted into. Instead, we will be put in the position of pitching the benefits of paying for union membership to workers who will enjoy the fruits of our labor whether they join or not, begging the question: why buy the cow when you can get the milk for free?

To be clear, no one can be forced to join a union. The Supreme Court has already determined that that would be a violation of the First Amendment right to freedom of speech and association. However, states and unions sometimes make agreements in which the unions are designated as the sole bargaining unit for all members when contract negotiations begin or grievances are filed.  Rather than have members exclusively bear the expenses related to union work and give non-members a free ride, those who choose not to join the union are charged a “fair share” or “agency fee,” something only about 31,000 California teachers have opted to do in contrast to the approximately 325,000 who have joined the union.  The “fair share” is a reduced charge that pays for the costs associated with bargaining contracts, overseeing benefit plans and filing grievances; it does not pay for union political activity. The plaintiff, Rebecca Freidrichs, was paying about $650 per year to the California Teachers Association as a non-member. Members pay about $1000. 

This seems fair enough since non-union members still benefit from the salary, working conditions and health benefits negotiated by the union. Furthermore, the issue was already decided back in 1977 in Abood v. Detroit Board of Education. According to Garrett Epps of The Atlantic, “in a 1977 case called Abood v. Detroit Board of Education, the Burger Court said the fees do not violate the First Amendment: ‘Public employees are not basically different from private employees,” the Court said. ‘[O]n the whole, they have the same sort of skills, the same needs, and seek the same advantages.’ The subjects of collective bargaining are the same in either case. Wages and working conditions in the public sector have a political quality, but in their essence were more like the issues that private employers and their workers must negotiate. A state could decide that ‘exclusive representation’ would make for a more orderly workplace; it could also decide to disallow ‘free riders.’ Neither decision violated the First Amendment. ‘A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint,’ the Court said. ‘Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing.’ Abood has become the basis for scores of public-employee contracts, and the Court has reaffirmed it at least four times over the past 30 years.

The most recent case was 2014’s Harris v. Quinn. In the aftermath of Illinois home health aides being permitted to join the Service Employees International Union and subsequently almost doubling their wages, gaining health benefits and the right to training, several health care workers objected to paying the agency fee required by the Service Employees International Union. Although the Supremes allowed the fee, Justice Alito referred to Abood as “seriously erred,” “questionable,” and “fundamentally misunderstood,” essentially advertising that the Court would he happy to hear a case that had the right stuff to overturn it. Anti-union groups sat up and took notice. Voila Freidrichs v. California Teachers Association, brought to us by the Center for Individual Rights, a Koch brother affiliated anti-union organization. CIR sees no useful distinction between lobbyists and unions and argues that non-members should not have to pay if they disagree with the union, making the assumption that money and speech are the same thing, which, for the Koch brothers might be true enough.

In comments made to In These Times, Seattle University Law Professor Charlotte Garden explained how lobbying and union activity differ, “First—and most important to the Friedrichs case—unlike lobbyists, unions owe a duty of fair representation to all of the workers they represent, which means they (unlike lobbyists) have to spend money representing non-members…Second, the scope of bargaining is circumscribed by governments themselves—governments decide under what conditions they will bargain with unions, and unions are constrained by those restrictions. So, for example, a government might limit collective bargaining to the subject of wages, but of course government can't limit the scope of what lobbyists can ask for.”

            Interestingly, interviews with Rebecca Freidrichs don’t center on how the union mishandled her wages. Instead, she criticizes the California Teachers Association for not letting her report teachers that she felt were not competent. Freidrichs told Tucker Carlson of Fox News, “ Teachers rights are being trampled upon.  We have no right, we are forced as a condition of employment to pay these fees, and I started complaining about that immediately at the beginning of my teaching career, after as a student teacher I watched an older teacher who had tenure…treating her little first graders horribly. It was horrible to watch. So I started complaining right away and I was bullied and shunned, and I even became a union rep., and complained to union officials, they bullied me as well, and that’s when I realized it was hopeless to try to change things within the union culture…”

So, if I’m reading this correctly, Freidrichs rejects paying her “fair share” not because she feels her union has not negotiated a proper salary for her, not because her working conditions are unacceptable, not because she has inadequate health coverage and not because her contract is being violated, but because her union was not sympathetic when she was student teacher who attempted to be judge and jury to an older, tenured teacher; shockingly, she could not get her union to take on that role either.  How many times do we have to explain that if bad teachers exist, it’s because bad administrators permit them to? Certainly, it is unorthodox in any profession to allow the newbies to assess the professional performance of their colleagues. How is that the union’s fault?

Not that Freidrichs has anything against unions. She told the Daily Caller, “I am not anti-unions at all. I’m from a union family…I’m against forced unions.” So having been raised with the benefits of a family who probably had reasonable wages, work hours and health insurance, Freidrichs is now seeking the right to enjoy those same union negotiated working conditions while not paying for the process that insures them. Nice.

            Freidrichs , who is represented by well-known Republican attorney and Koch brothers associate Michael Carvin, told The Daily Caller “I know a lot of teachers who are apolitical. We are a voice for the voiceless.” Actually, if Freidrich wins, she will be guaranteeing the voicelessness of teachers.

            What will happen if unions have to go begging for dues? How long will it be before all the power lies with the employer? How easy will it be, in the age of APPR, to intimidate new teachers into not joining the union? Is anyone naïve enough to think that teachers will continue to enjoy the same working conditions with or without a union because we are professionals? Let Kate Connors, a charter school teacher in New York City who was fired for forming a union,  disabuse you of that notion.

            Kate Connors, who is now employed in a NYC public school, describes working conditions at her non-union tenure school in a letter to teacher advocate Diane Ravitch.   She writes, “During the orientation, we attended workshops led by the principal that addressed the school’s expectations, lesson planning, and preparing for the school year. At the end of one of these days, the principal told us to dress comfortably for the next day, that we had to get the school ready for the students. Because the school was brand new, the four-story building was still not furnished. On the first floor, in the cafeteria were all the school’s furnishings. The teachers were given the task of moving the items from the cafeteria to the room to which they belonged. The school has four floors and many, many rooms. The cafeteria was filled with desks, tables, file cabinets, bookshelves and more. The teachers worked together moving these large and heavy items. A hand truck was provided for the heavier items. It took a few days, and when we were finally done, the teachers’ desks arrived in flat boxes and in pieces. We were given tools and told to build them ourselves. We were also asked to help clean the building. We were given Windex and paper towels, we were told to clean the windows and lunchroom kitchen. The faculty began discussing amongst themselves how inappropriate this was to ask of the teachers. It was the school’s first year, and we did want to help it get off to a successful start, but this certainly was the start of a steep decline of morale and disappointment with our administration…” How many readers feel confident that, without a strong union, they would never be asked to do this sort of difficult labor if it saved the district money?

Connors continues, “There were thefts (phones and computers; all personal property of teachers), cursing and homophobic slurs launched from students to teachers, fights, marijuana use in the building, etc. The worst part is that the teachers began to have safety concerns about coming to work each day. Drug deals were happening outside of the building, a student was chased down the street by someone with a gun and non-students were entering the building. The faculty begged for security. We were told that the janitor would also be acting as a security guard… They finally hired two security guards, and it was another fight to get the security guard to use metal detector wands.” How many readers think that this custodian/security guard belonged to a union when he was given two jobs and one salary? How many think there would be sufficient school security without a union to demand it?

            Connors goes on,During the week of Hurricane Sandy, the Mayor closed down New York City schools for the entire week. Traveling or even being outdoors was dangerous in such weather conditions -- even the subways were not running. I was shocked when I received an email from the executive director… telling us to report to school on Thursday and Friday of that week. No students were in attendance, but the faculty was expected to come in and stay in school during the normal 9-5 work day. The administration wanted to open the school for the two days rather than lose two days from our February break. “ If you are reading this and you were employed at a Long Island or New York City public school during Hurricane Sandy, you remember that school was closed on those days. Was this just common sense? To an extent, yes, but the Mayor and superintendents also knew better than to ask union teachers to risk their lives traveling to work.

            Yet, such administrative expectations will become commonplace if the Supreme Court gives workers the right to enjoy all the benefits of union negotiated working conditions without bearing the financial responsibility. When union financial resources are scant because some people decide to take a free ride, there won’t be enough money to fight demeaning or dangerous working conditions. Administrators who are still in touch with their inner teachers may not use the change to sap us of our professionalism, but for those who see education as a challenge to squeeze every ounce of effort of every teacher for the least possible cost, a Freidrichs victory will be the signed permission slip they’ve been lacking.

            I could take the easy and popular way out of this analysis and finish by reminding everyone that strong unions and safe working conditions only benefit the children, so the agency fee should remain in effect because it is in kids’ best interest. That’s true, but it’s not how I want to end this. Instead, I want to say that the Supreme Court should rule in favor of the California Teachers Association because it is wrong to use something when you haven’t contributed to its cost.  In this case, that thing is dignity.  

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