Antonin Scalia

The article was updated on Feb. 16 to include an analysis by SCOTUSblog publisher Tom Goldstein.

With the death of Supreme Court Justice Antonin Scalia, the California Teachers Association will likely gain an unexpected victory, at least for now, in its legal battle to continue the right to require all teachers to pay the costs of collective bargaining.

That was the issue raised in Friedrichs v. the State of California and the CTA, which the U.S. Supreme Court will rule on by June. Court observers had predicted that Scalia would join the four other conservative justices to make a 5-4 decision overturning Abood v. Detroit Board of Education, a four-decades old Supreme Court decision that said that states could require all public employees to split the expenses of bargaining, known as “agency” or “fair share” fees.

A majority decision agreeing with the plaintiffs – Rebecca Friedrichs, an elementary school teacher in the Savanna School District in Anaheim and nine other non-union teachers – could severely weaken the financial health and political clout of the CTA and other public employee unions. The suing teachers contend that mandatory fees coerce them to support bargaining positions they disagree with, violating their constitutional right to free speech.

With a possible 4-4 tie, the court would defer to the ruling of the U.S. 9th Circuit Court of Appeals on the side of the union. If that were to happen, the Court of Appeals decision would uphold only California’s law permitting mandatory fair-share fees and not affect the other two dozen states that also have passed similar statutes. (Tom Goldstein, publisher of SCOTUSblog, suggests that the Supreme Court could decide to have cases like Friedrichs reargued, once Scalia’s successor takes a seat on the court. Goldstein cites precedents for doing this in his article.)  In the remaining “right-to-work” or open-shop states, in which all dues and fees are voluntary, unions generally are weaker and the percentage of membership is smaller.

In its pro-forma ruling in 2014, the Appeals Court didn’t consider the merits of the case, nor was it asked to. The Washington, D.C.-based Center for Individual Rights, which filed the lawsuit on behalf of the plaintiff teachers, had asked the lower courts to expedite a decision without a full trial so that the Supreme Court could directly reconsider the Abood decision.

The center’s lawyers had reason to believe the majority on the court would agree with them. In a ruling in 2014 in a related case, Harris v. Quinn, Scalia and other conservatives called the Abood decision “troubling.” Although the court didn’t overturn Abood then on technical grounds, Scalia and other conservatives in a concurring opinion invited a lawsuit directly challenging it. The Friedrichs lawsuit was that challenge, and the court agreed last fall to hear the case.

In establishing fair-share dues, the court in Abood distinguished between collective bargaining expenses, covering pay and working conditions, and money to underwrite a union’s support of candidates, its political positions and lobbying local school boards and the Legislature on non-bargaining issues. Teachers are not obligated to pay for politicking, it said.

For California teachers, about $600 of their average $1,000 annual union dues goes toward their fair-share fees; it is divided among their local union, the California Teachers Association and the National Education Association for their expertise and representation. Teachers who don’t want to join the union and pay the political portion of union dues must annually sign a statement of their intention to opt out.

In a 1991 decision, Scalia defended the right of public-employee unions to charge fair-share fees to cover collective bargaining expenses, since they are legally required to negotiate on behalf of union and non-union workers. Mandatory fees would solve the problem of “free-riders” who benefited from the contract without paying for negotiation expenses, Scalia reasoned.

But in oral arguments in Friedrichs last month (see page 45 of the transcript), Scalia indicated he had changed his mind and would join the other four conservative justices. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” including bargaining over pay increases, Scalia said, adopting the key argument of the plaintiffs.

The Center for Individual Rights’ strategy of expediting its lawsuit may have backfired with Scalia’s death. Whether the CTA and other public unions face another lawsuit like Friedrichs any time soon will depend on who becomes Scalia’s successor. President Obama would like to make that choice – and, with his third appointment to the court, tip control of the court to moderates and liberals. But Republican U.S. senators vowed Sunday not to vote on a nominee, leaving the choice to the next president.

The National Education Association and the American Federation of Teachers, the parent unions for the California Teachers Association and the California Federation of Teachers, a co-defendant in the Friedrichs case, last year endorsed Democrat Hillary Clinton for president. With the court’s ideological majority now in the balance, Scalia’s death has raised the stakes in November for unions and their opponents.

In a statement Sunday, Joshua Pechthalt, president of the California Federation of Teachers said that Scalia’s death “is likely to result in a delay of the Friedrichs case but it’s not certain and I think the public sector unions and the education unions have to continue the organizing we have been doing with the assumption nothing has changed.”

But he also agreed that the vacancy on the court “underscores the importance of this presidential race.” The next president could nominate one, maybe more Supreme Court judges, he said, adding, “These judges could be interpreting the constitution for the next generation, including issues related to labor, women’s rights, voting rights, affirmative action, the environment and social justice.”


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  1. Donna 4 months ago4 months ago

    Wouldn’t it be more fair if teachers could legally opt out of joining the union, BUT by doing so also lose the medical benefits, working terms and conditions, salary negotiations, and legal representation that the union secures through bargaining for their member teachers? Would a school district have to bargain with each of these teachers individually, or would they be forced to organize into a group to deal with the district in securing these benefits?

  2. Think! 4 months ago4 months ago

    The union negotiated contracts hurt not help certain teachers. For example, many school districts state that they would like to offer more pay for "shortage" fields like math but are stopped by the unions that always insist all teachers must be paid the same. Many STEM majors choose to take higher paying, less demanding careers instead of becoming teachers. The people who do become math teachers often decide the workload and working conditions are not … Read More

    The union negotiated contracts hurt not help certain teachers. For example, many school districts state that they would like to offer more pay for “shortage” fields like math but are stopped by the unions that always insist all teachers must be paid the same. Many STEM majors choose to take higher paying, less demanding careers instead of becoming teachers. The people who do become math teachers often decide the workload and working conditions are not equal to the pay and quit. I have a math credential. I know that unions hurt me not help me. I am offended by being forced to pay union dues. I would be better off negotiating on my own. I have worked in two districts with a union and they have never lifted a finder for me even when called for help. Teacher unions can go jump off a cliff.

  3. SALVADOR GARCIA 5 months ago5 months ago

    Mr Obama would make a great justice. I hope the Democrats win and nominate him.

  4. BEB 5 months ago5 months ago

    If a teacher doesn’t want to join a union and therefore doesn’t pay union dues, does s/he then have to negotiate their pay, vacation, sick leave, pension…

    Replies

    • John Fensterwald 5 months ago5 months ago

      BEB: The terms of the contract applies to all teachers, regardless of whether they join the union. That's why, if teachers don't join the union, they still must pay the "fair-share" or "agency" fees covering the costs of negotiations. The lawsuit is over this obligation -- and the right of California and two dozen other states to pass a law requiring public employees to pay fair-share fees to the unions that must represent them. Read More

      BEB: The terms of the contract applies to all teachers, regardless of whether they join the union. That’s why, if teachers don’t join the union, they still must pay the “fair-share” or “agency” fees covering the costs of negotiations. The lawsuit is over this obligation — and the right of California and two dozen other states to pass a law requiring public employees to pay fair-share fees to the unions that must represent them.

      • Joseph Antone 5 months ago5 months ago

        correction, CFT, not AFT

        • Joseph Antone 5 months ago5 months ago

          My issue with "fair share" is that its not very transparent. We should know how much the negotiations cost. I'm curious, with UTLA now paying to both CTA and AFT, if agency fees will reflect enrollment in both organizations or will the agency fee only go up the percentage for the negotiations. I'm also concerned about how mid-level unions like UTLA work in the whole system. If I have agency fee status (BTW, I am a … Read More

          My issue with “fair share” is that its not very transparent. We should know how much the negotiations cost. I’m curious, with UTLA now paying to both CTA and AFT, if agency fees will reflect enrollment in both organizations or will the agency fee only go up the percentage for the negotiations.

          I’m also concerned about how mid-level unions like UTLA work in the whole system. If I have agency fee status (BTW, I am a fully paying member), and I pay. Then if these funds are used to pay CTA and AFT (which I feel have dubious connections to direct negotiations), how then do agency-fee payers ensure that CTA and AFT do not use their funds for political action?

          Again, nothing wrong with requiring agency fee or fair share payments, its when you add the politics that things become so muddled. It needs to be made more clear.

  5. Roger Grotewold 5 months ago5 months ago

    Thanks for this article, John. I imagine that thousands of California teachers who support our local representatives in negotiations each year with their school district will all welcome the information in this article. Also, there is a good chance that a liberal candidate will be elected as our president this year. It seems then, that the person elected will nominate a liberal leaning person for the vacant supreme court position and eventually … Read More

    Thanks for this article, John. I imagine that thousands of California teachers who support our local representatives in negotiations each year with their school district will all welcome the information in this article. Also, there is a good chance that a liberal candidate will be elected as our president this year. It seems then, that the person elected will nominate a liberal leaning person for the vacant supreme court position and eventually the Senate will have to agree to seat this person. That in turn should sway the majority in favor of keeping the agency shop and contributions from all teachers, whether they belong to the representing union or not. If this happens, all I can say is hooray for public education in California.

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