Friedrichs and Bain Explained

California public school teachers working in traditional school districts are by default members of their local teachers associations, which may be affiliates of either the California Teachers Association (CTA), which is the state branch of the National Education Association (NEA), or the California Federation of Teachers (CFT), the state branch of the American Federation of Teachers (AFT).  While teachers unions, like all other organizations, certainly aren’t perfect, they fulfill several roles that benefit students and teachers alike and are important, powerful advocates for low- and middle-income populations in general.

Despite these facts (or, perhaps, because of them), teachers unions have been under attack for quite some time.  And the anti-labor movement, fueled by wealthy individuals and groups like the American Legislative Exchange Council (ALEC), has been alarmingly successful.  Union membership reached a historic low of 11.1 percent in 2014 (6.6 percent in the private sector and 35.7 percent in the public sector), 25 states have adopted inappropriately-named “Right to Work” laws that deprive workers of bargaining power, and an inaccurate, misleading anti-union narrative has permeated public discourse.

Unions won a major victory in California in 2012 when we (I was a CTA Election Campaign Lead at the time) beat back Proposition 32, but the news has been less stellar since, particularly for teachers unions.  In 2014, Judge Rolf Treu sided in favor of the plaintiffs in Vergara v. California, a misleading lawsuit that attacked various aspects of teacher employment law.  Though the weakness of both the plaintiffs’ argument and the decision suggests that the case may be overturned on appeal, it still represents a dangerous threat to important employee protections that could reverberate beyond education.  Two more recent California cases, Friedrichs v. California Teachers Association and Bain v. California Teachers Association, present related dangers for labor more generally, especially because the Supreme Court will hear oral arguments in Friedrichs early next year.

As was the case with Vergara, there’s a lot of misinformation floating around about both Friedrichs and Bain.  The discussion below thus sets the record straight on how teachers-union dues and spending work in California, explains the basic arguments of both Friedrichs and Bain, debunks myths the plaintiffs have propagated, and explains why courts should rule against the plaintiffs in both cases.

How Teachers-Union Dues and Spending Work in California

Spending by teachers unions falls into two legal categories: it is either “chargeable” – that is, pertaining to collective bargaining and classified as nonpolitical – or “nonchargeable,” or classified as political.  Public school teachers in CTA-affiliated schools have three options when it comes to paying union dues:

1) If a teacher takes no action, he or she pays for both the chargeable and nonchargeable portion of CTA spending. Whether or not a teacher pays dues to their local association for nonchargeable spending may vary from local to local.

2) If a teacher marks a box on his or her membership form (shown below), that teacher can choose not to contribute towards CTA’s political activities. The teacher must still pay the nonchargeable portion of his or her dues, but that money remains in CTA’s general fund and can be used only for chargeable activities.  A teacher selecting this option remains a full-fledged member of the union.

Teachers who do not want to contribute to CTA’s political activities can check a box on a one-page form to opt out.

Teachers who do not want to contribute to CTA’s political activities can check a box on a one-page form to opt out.

3) A teacher can affirmatively opt out of paying the nonchargeable portion of his or her dues altogether. This decision must be made each year for which a teacher wishes to opt out.  A teacher who exercises this option and pays lower dues is considered an “agency fee payer.”  Agency fee payers are still represented by the union in collective bargaining and labor disputes, but they lose some advantages associated with union membership, the most significant one being the right to vote in union elections.

Each year, CTA must determine the portion of its spending that falls into the chargeable and nonchargeable categories.  It is required by law to send a “Hudson notice” showing the breakdown and the amount of the agency fee to any teacher who has chosen option 3 in a previous year.  Teachers receiving the Hudson notice also receive a letter explaining that they have at least thirty days to decide whether to opt out of the nonchargeable portion of dues again in the coming year (which they can do either by filling out a simple one-page form, shown below, or by writing a letter).

Teachers who want a rebate for the political portion of their dues can fill out this simple one-page form.

Teachers who want a rebate for the political portion of their dues can fill out this simple one-page form.

In recent years, CTA has designated about 65 percent of its dues to be “chargeable.”  If an agency fee payer disagrees with the unions’ stated breakdown between political and nonpolitical expenses, he or she can check a box on the above form to initiate an independent review of the union’s expenses.  The fee payer does not need to be present or provide evidence for that review, the costs of which are all borne by the union.

Friedrichs and Its Free Speech Arguments

The plaintiffs in Friedrichs seek to overturn Abood v. Detroit Board of Education, which in 1977 established that public sector unions could charge all employees for activities related to “collective bargaining, contract administration, and grievance adjustment purposes” – that is, that public sector unions could require employees to pay the chargeable portion of union dues.  The plaintiffs in Friedrichs prefer not only to make all union dues optional, but to change the default dues setting to “not contribute,” forcing members to take affirmative action to allocate any money at all to the union.

Building on Abood’s holding that public sector unions cannot compel employees to contribute to any “ideological cause,” the plaintiffs in Friedrichs assert that the distinction between collective bargaining activity and ideological lobbying activity undertaken by a public-sector union is a meaningless one.  They make four arguments in this vein:

1) They assert that “the broad fiscal impact of bargaining about wages and benefits makes it political speech about public affairs” (emphasis theirs). In other words, they note that public schools are funded by taxes, and that teacher compensation is a large part of what is covered by that funding.  Since the allocation of tax dollars is a matter of public importance and collective bargaining influences that allocation, they argue that collective bargaining must be considered political.

2) They contend that, because collective bargaining often pertains to matters debated in the education policy world, it is inherently political.

3) They argue that because the political activity of California’s teachers unions sometimes focuses on issues that are also collectively bargained (laws related to teacher employment, for example), it is absurd to argue that collective bargaining is somehow different from lobbying.

4) They assert that recent legal precedent suggests broad acknowledgment that the reasoning in Abood was incorrect, and that Harris v. Quinn in particular implies that the time is ripe for overturning Abood.

In the plaintiffs’ view, rules about inherently political activities like collective bargaining constitute a violation of employees’ free speech rights.

Part of this argument is bizarre on its face, as evidenced by the plaintiffs’ suggestion that union negotiations about class size and teacher employment protections are analogous to “threats to ‘blow off their front porches’ during a labor dispute or protest signs declaring that ‘God Hates Fags.’”  However, the plaintiffs are correct that recent legal precedent has significantly weakened Abood – given the makeup of the current Supreme Court (which is responsible for that precedent), it wasn’t a surprise that the Court decided to hear Friedrichs.

The plaintiffs also make a legitimate point about the fuzzy distinction between political and nonpolitical activity, but they ignore the fact that we draw seemingly arbitrary lines between the two all the time.  For example, many large corporations have lobbyists who fight against unions and labor standards, charitable arms that donate to organizations that undermine unions and labor standards, and managers who discourage unionization (both legally and illegally) at their stores – each of these activities is overlapping and affects the public interest, but only the first is typically classified as political.  Or consider the artificial division between the “news” and “editorial” teams at mainstream media outlets: “news” reports contain a plethora of implicit assumptions in them, but only editorials are technically considered political.

The activities classified as nonpolitical above can have a substantial fiscal impact; corporations that offer low wages and meager benefits increase the need for government support of low-income workers, for instance, and news articles exert a major influence on public policy debates.  For this reason, the plaintiffs’ arguments, if accepted, could potentially invalidate a whole lot of rules that differentiate political from nonpolitical activity.  It would simply be incorrect to suggest that Walmart and the Wall Street Journal engage in nonpolitical activities and unions don’t.

There is a legitimate question of where to draw the line between political and nonpolitical speech.  But even if there were a coherent argument about why public sector negotiations about working conditions should be considered more political than other forms of speech mentioned above (a condition that doesn’t appear to be satisfied), such an argument would still present an intractable problem: if accepted, it would likely restrict the ability of managers to discipline employees.  As Ian Millhiser explains at ThinkProgress, even Antonin Scalia foresees this potential problem (though that certainly doesn’t mean he’d be unwilling to rule against unions in Friedrichs) – if contributions to collective bargaining can violate an employee’s free speech rights, employer rules about the discussion of compensation packages and working conditions almost certainly can as well.

Fine – The “Political Speech” Argument Doesn’t Hold Water.  But Why Shouldn’t Nonmembers Be Allowed to Opt Out of Chargeable Spending?

The Supreme Court held in Abood that unions could collect an “agency fee” (the portion of dues that funds chargeable union spending) from nonmembers for two primary reasons:

1) The promotion of “labor peace:” The government has an interest, according to the Court’s opinion in Abood, in minimizing the potential for conflict between employees. The agency fee helps ensure that an employer will negotiate with one and only one bargaining unit, thus reducing the likelihood of employee disputes.

2) The prevention of “free rides:” Teachers unions cannot exclude nonmember teachers from the contracts they negotiate – all teachers, whether they are members or not, reap the benefits of the higher wages, better benefits, improved working conditions, and employee rights that unions secure. Without the agency fee, union members would be forced to subsidize the benefits of nonmembers.

The plaintiffs in Friedrichs contend that these reasons are not compelling.  They argue that, while labor peace concerns should prevent multiple, rival unions from co-existing, “the fact that public employers have an interest in dealing with one union rather than many…does not justify the additional and quite different proposition that the state can force all employees to support that one union [unless] ‘free riding’ would cause the extinction of the exclusive union” or if it would lead to a loss of benefits for the free-riding members.  Teachers unions, the plaintiffs argue, cannot (and have not even tried to) show that the invalidation of agency fees would weaken nonmembers’ benefits or threaten the unions’ existence.

The plaintiffs in Friedrichs also argue that it is the norm for advocacy groups to secure benefits for nonmembers – because “free riding” is allowed for doctors who don’t join the American Medical Association, they contend, it should be allowed for teachers as well.  They assert that whether or not coverage under union-negotiated contracts is even a benefit for nonmember teachers is debatable, as collectively-bargained contracts may include components (like the provision of retirement benefits or certain salary structures) with which nonmembers disagree.

Mainly because they believe labor peace and free rider concerns cannot justify what they term “compelled speech,” the plaintiffs in Friedrichs insist that “Public-Sector Collective Bargaining Would be Unconstitutional Even If It Were Not Core Political Speech.”

Yet there are several gaping holes in the plaintiffs’ arguments.   First, teachers unions could actually mount a clear and compelling case that the invalidation of agency fees would cause substantial harm to their operations.  Unions in states that have restricted collective bargaining are reeling; in Wisconsin, for example, where Governor Scott Walker initiated an anti-union crusade in 2011, compensation has fallen by 10 percent for members of the Wisconsin State Employees’ Union.  NEA membership in the state has fallen by a third and AFT membership by half.  Those are probably some of the reasons why both proponents and opponents of Friedrichs assert, in most articles written about the lawsuit, that it presents an existential threat to teachers unions.  To be fair, unions that step up their organizing efforts and effectively advertise how they benefit workers may be able to remain relevant even if the lawsuit proves successful (AFSCME, the SEIU, the NEA, and AFT are already focused on doing so), but a ruling in the plaintiffs’ favor would clearly make organizing significantly harder.

Second, the plaintiffs’ claim that union-negotiated contracts might harm rather than benefit some nonmembers is a red herring (and debatable, though let’s assume it’s true for the purposes of this argument).  While some nonmembers might think they could obtain more attractive compensation packages and better working conditions by negotiating independently with their school districts, members on the whole are definitively better off (in terms of compensation and working conditions) because of the union.  And there isn’t a multi-issue advocacy organization in the world, the American Medical Association included, in which every person covered under the group’s advocacy supports every action the group takes.

This claim also misses a key point about public goods: people must sometimes contribute to things they might not want because other people depend on their contributions.  To take the most obvious example, I support very little of our government’s defense spending, but I still have to pay the portion of my taxes that fund it.  Similarly, individuals who don’t want health insurance must still buy it, as taxpayers would otherwise be forced to subsidize their care. In both of these scenarios, as in the union case, allowing people the option to decline to fund part or all of the given service would make the whole system worse for those who depend on it.  Whether an individual wants everything in a collectively-provided service is less relevant than both whether that individual’s contribution is necessary for sustaining the service and whether the service is an important one to provide.

Nor are such mandated contributions limited to the public sector.  As Gordon Lafer explains, lawyers must pay mandatory fees to practice law and condominium owners are required to pay association fees.  Lafer also observes:

[E]mployer associations themselves refuse to live by the same rules they seek to impose on unions.

In Owensboro, Kentucky, the local Building Trades Council decided to withdraw its membership in the local Chamber of Commerce, but asked if it could still receive full member benefits even though it would no longer be paying dues. Absolutely not, answered the Chamber. “It would be against Chamber by-laws and policy to consider any organization or business a member without dues being paid. The vast majority of the Chamber’s annual revenues come from member dues, and it would be unfair to the other 850+ members to allow an organization not paying dues to be included in member benefits.”

Third, the whole idea that contributions to collective bargaining constitute “compelled speech” is preposterous.  While individuals who want to work as teachers in most traditional public schools today must pay the agency fee and accept the terms of their collectively-bargained contracts, individuals who want employment in any job must accept contracts that contain a variety of demands from their employers. Whether they’re negotiated by worker representatives or mandated by employers without union input, conditions of employment are conditions of employment.

Put differently, the plaintiffs are arguing that a school district can legally require its teachers, if they want to stay employed, to teach 35-student classes, to supervise events without pay after the school day is over, to attend meetings that they don’t think will help them improve their teaching, and to accept whatever salary the district is willing to offer.  But the same district cannot legally require its teachers to allocate a portion of their salaries to a group that negotiates those terms of employment on the teachers’ behalf.  According to the plaintiffs, employers can make employees follow rules unless one of those rules ensures that employees have a say over the rules they have to follow.  Such a position plainly has nothing to do with free speech and everything to do with views about who should have power in employer-employee relationships.

In short, requiring nonmember teachers to pay the agency fee is perfectly reasonable and similar to a range of practices in both the public and private sectors.  Teachers unions fulfill a variety of very important roles, many of which would be difficult to impossible to fulfill without the agency fee requirement.

Okay, Okay!  I Get That It’s Reasonable to Require the Agency Fee.  Can’t We At Least Change the Agency Fee Payer Process?

The plaintiffs in Friedrichs conclude by arguing that, at the very least, CTA’s requirement that dissenting teachers opt out of nonchargeable (political) dues each year is unconstitutional.  They assert that teachers should ideally have to opt in to nonchargeable dues and should definitely not have to renew their objections to such dues each year.

Enter Bain v. California.  The plaintiffs in Bain do not challenge the existence of the agency fee. They write: “The categorization of expenses as “chargeable” or “non-chargeable” is not at issue in this action. Plaintiffs do not object to paying the chargeable portion of dues as a condition of union membership.”  Instead, they contest the loss of union membership associated with opting out of nonchargeable dues.  The core argument from the Bain plaintiffs’ preliminary statement reads as follows:

9. Teachers who wish to remain members of their unions must contribute to both the unions’ “chargeable” and “non-chargeable” expenditures. In other words, every teacher who is a union member is forced to fund the unions’ political and ideological activities.

10. Resigning union membership has significant adverse consequences for a teacher. By becoming a non-member, a teacher is forced to give up important employment-related benefits that are available only to union members. For example, a non-member teacher is forced to forgo the ability to participate in the unions’ disability insurance program (including insurance that is necessary for full maternity-leave compensation), legal representation in cases of employment disputes, death and dismemberment compensation, and disaster relief, among many other benefits.

11. The teachers’ unions ensure that these employment-related benefits are available only to their members, and not to non-members, despite their obligation to negotiate equally on behalf of all teachers…Indeed, the unions use their exclusive bargaining status to ensure that these benefits are not provided by the employer, and therefore not available to non-members, so that teachers are deterred from (and penalized for) exercising their First Amendment right to opt out of contributing to the unions’ political and ideological expenditures.

12. In addition, by becoming a non-member, a teacher is forced to give up her ability to vote in elections that determine the union’s leadership and its collective bargaining position, and prevented from voting on employment-related matters, such as whether to adopt the collective bargaining agreement that determines the terms of teachers’ employment.

13. Because of these substantial employment-related benefits and voting rights that are available only to members, many teachers who do not wish to contribute to the unions’ political or ideological activities are effectively compelled to abandon their First Amendment rights and join (or remain members of) the unions. By punishing teachers for—and deterring teachers from—exercising their First Amendment rights, this arrangement violates the First Amendment.

14. Plaintiffs are public school teachers who wish to retain the employment- related benefits and voting rights that come with union membership, but also wish to exercise their First Amendment right to avoid contributing to the unions’ political or ideological activities. They seek the same right to opt out of funding the unions’ political and ideological activities that non-members have. They should not be forced to make the untenable choice of either (a) abandoning their First Amendment rights or (b) abandoning the employment-related benefits and voting rights the unions secure only for their members.

This argument would be pretty convincing if key parts of it weren’t misleading and/or untrue.

First, the Bain plaintiffs’ claims about benefits available exclusively to members are deceptive.  For example, they assert that “legal representation in cases of employment disputes” falls into this category.  While that’s technically correct – nonmembers do not have access to CTA lawyers – the plaintiffs fail to mention that union representation when a teacher has a grievance, which is sufficient in most cases, is provided to members and nonmembers alike.

Another example is maternity leave, which the plaintiffs in Friedrichs also mention.  Though CTA does not provide nonmembers with the same opportunity as members to purchase a specific disability insurance package that covers maternity leave, nonmembers have the opportunity to purchase very similar plans on the individual market.  Importantly, the complaints in both lawsuits omit the fact that the basic parental leave all employers in California (with 50 or more employees) are legally obligated to provide – up to twelve weeks of leave during which an employee still has health insurance coverage and a guaranteed job when she returns – are only available because of the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), which unions were instrumental in helping to pass in 1993 (they also played a major role in securing California’s Family Temporary Disability Insurance program, which workers can use concurrently with the leave under FMLA and CFRA, in 2002).  In addition, some local teachers associations secure additional parental leave benefits, which go beyond those guaranteed by FMLA and CFRA, from their school districts.

In other words, the maternity leave “benefits” referenced by the plaintiffs are hardly benefits at all and are significantly less important than the benefits teachers unions are fighting to strengthen all the time.  The Bain plaintiffs’’ assertion that “unions use their exclusive bargaining status to ensure that [certain employment-related] benefits are not provided by the employer” is a blatant fabrication.

The deception here actually runs even deeper: while there’s no evidence that unions try to restrict benefits available to employees, the employers the Bain legal team typically represents do engage in that kind of behavior.  Lead attorney Theodore Boutros’s bio, for instance, proudly touts his role in helping to ensure that Walmart would not be held accountable for sex discrimination (resulting in lower pay and fewer promotions) against over 1.5 million women in 2011.  And the organization behind Friedrichs, the Center for Individual Rights, has strong ties to individuals and organizations, like the Koch Brothers and ALEC, that routinely put the kibosh on paid leave initiatives (not to mention workers’ abilities to secure a decent living).

The hypocrisy aside, the plaintiffs have their seemingly most legitimate argument when it comes to agency fee payers’ loss of voting rights – in some respects, there’s an important debate to be had about this practice.  Agency fee payers contribute to the unions’ collective bargaining activities, and since most union votes have a significant impact on collective bargaining, one could argue that agency fee payers deserve the right to vote in union elections.  Though letting agency fee payers vote might exacerbate the free rider problem, forcing teachers to choose between contributing to disliked political spending or losing the ability to vote seems unfair.

The problem with that formulation, however, is that it’s based on a false choice.  As explained earlier, teachers in districts represented by CTA can opt out of contributing to nonchargeable expenditures while remaining full-blown union members – with the right to vote and the ability to purchase CTA’s preferred disability insurance package – if they check a box on a simple one-page form.  Teachers who exercise this option will still pay full union dues, but all the money they contribute will go towards the unions’ chargeable expenditures, which the Bain plaintiffs (unlike the plaintiffs in Friedrichs) admit they aren’t contesting.

This option is actually a much better solution to the plaintiffs’ manufactured problem than is agency fee payer – it lets teachers opt out of contributions to nonchargeable expenses while simultaneously addressing the free rider concern.  Its very existence should nullify the lawsuit.  In fact, it’s probably a large part of why a judge dismissed Bain in September.  Unfortunately, however, the plaintiffs plan to continue pursuing the case.

What It Boils Down To

The fact that Friedrichs and Bain rely on a variety of misleading and/or dishonest claims illustrates what’s really driving these lawsuits. They aren’t about free speech or free choice and they’re not about constructing sensible policy.  Instead, they’re about undermining organized labor and further diminishing union strength and worker bargaining power.

For wealthy interests who benefit when workers lose and those congenitally opposed to teachers unions, these lawsuits are thus welcome.  But those who truly care about workers’ rights and are interested in the facts would do well to oppose both Friedrichs and Bain.

*Unions were also instrumental in

Note: A version of this post originally appeared in The Washington Post.

Update (12/5/15): This post was revised to note that unions also helped secure California’s Family Temporary Disability Insurance program in 2002.

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