labor Major Challenge to Labor Rights in California - Two Articles

In a scarcely-noticed lawsuit filed in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California's system for collecting dues or fees from public employees abridges free speech. RELATED: 10 California teachers are suing in federal court to stop mandatory fair share fee collection. The lawsuit seeks to expand last year’s U.S. Supreme Court decision involving union activity in a California special election.

Peter Scheer, Kitty Felde
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Note: Each of these articles may have inadvertently conflated union membership "dues" with non-member "fair share" or service "fees".

New First Amendment Suit Poses Existential Threat to Government Unions

by Peter Scheer, 5/2/2013, Huffington Post

Public employee unions face a new, and mortal, threat. It's not the unfunded liability of union pension plans or municipal governments' resort to bankruptcy to void union contracts. It's not state initiatives to restrict collective bargaining rights or other outpourings of voter resentment. No, the new existential threat facing government unions comes from... the First Amendment.

In a scarcely-noticed lawsuit filed Monday in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California's system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.

On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old U.S. Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn't have taken the case unless prepared to litigate all the way to the nation's highest court.

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And if they prevail? Public employee unions, not just in California but across the country, would lose the bulk of their dues funding-and with it, the ability to wield decisive political influence in state and local governments everywhere. That is a big deal.

Non-management government employees in California, as in many states, are required to belong to a union, and pay union dues, whether they want to or not. However, employees can't be forced to pay for union political activities-as opposed to union representation on pay, benefits, job security and like issues-because of first amendment protections against "forced association" with political viewpoints. The question is: how, practically-speaking, to enforce this right?

The Supreme Court in Abood approved a system that requires employees, if they don't wish to pay for their union's political activities, to "opt out" -- meaning, they must pay all dues first, then apply to receive a prorated refund later. The theory of the lawsuit filed Monday, Friedrichs v. California Teachers Association, is that an opt out procedure is constitutionally defective because it compels employees to make a loan to the union for its political activities, and because even the unions' supposedly nonpolitical activities -- such as opposition to charter schools or support for higher taxes to pay for pension benefits -- are fraught with political and ideological choices that are objectionable to some employees.

The lawsuit contends that the first amendment requires an "opt in" procedure. While it may seem trivial, the difference between opt out (where the default is that the union has all your money and you have to ask for a portion to be refunded) and opt in (where the default is that the union has to persuade you to give money to support its political activities) is the difference between public employee unions that are rich and powerful and unions that are poor and politically neutered.

Last year in the Knox case, the Supreme Court decided, 5-4, that the first amendment requires California government unions to use an opt-in dues collection procedure for special dues assessments needed to finance political campaigns. Justice Allito, writing for five justices, went out of his way to raise doubts about the Abood decision and, in effect, to invite a test case to overturn it. The Friedrichs v. California Teachers Association lawsuit is an RSVP to that invitation.

How will the unions respond? In 2012 California unions spent some $75 million to defeat a ballot initiative, Prop 32, that would have shifted California's default from opt out to opt in. Now, consider that a successful Supreme Court challenge would yield the same result, not only in California but across the nation, and that it would be immune from legislative repeal. Organized labor, once it figures out what is happening, will treat this litigation like the existential threat that it is.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit organization. The views expressed here are his alone; they do no necessarily reflect the position of FAC's Board of Directors or Advisors.

California Teachers Sue Unions to Stop Union Dues

by Kitty Felde, 5/1/2013

Southern California Public Radio

Ten California teachers — several of them from Orange County — are suing in federal court to stop mandatory union dues. The lawsuit seeks to expand last year’s U.S. Supreme Court decision involving union activity in a California special election.
 
California law allows public employees to decide whether to have union representation for collective bargaining, which  requires members to pay dues. The dues are used to finance union activities, which sometimes includes political lobbying.

The lawsuit, filed by ten California teachers against their state and local unions and national advocacy groups, seeks to change that. Michael Carvin, lead attorney for the teachers, said: "We’re not attacking unions. We are attacking the union’s ability to coerce people ... to give money."
 
Union members are allowed to ask unions for a refund on the portion of dues spent on political activities. The teachers essentially want to opt-in to such dues, not have to opt-out after the fact.

Last year, the U.S. Supreme Court ruled on another California case involving employees and union dues.  The high court said the Service Employees International Union was wrong not to provide notice about its proposed political spending ahead of a special election called by then-Governor Schwarzenegger.

Justice Samuel Alito called it an “involuntary loan” to support a political campaign: "The First Amendment does not permit the government to compel people to support causes with which they disagree."
 
The high court also said it was concerned about the blurry line between collective bargaining and outright electioneering. Teachers attorney Carvin says the logic of that decision should apply to all union dues. 

"We are challenging the routine collection of fees, which requires the teacher to go through the process of opting out and saying, 'I don’t want my money going to politics.' We think the unions need to say, 'If you choose, we will put your money to politics.'"
 
Dean Vogel, president of the California Teachers Association, which is a target of the lawsuit, finds the argument "questionable at best." Vogel says the lawsuit reflects a nationwide attack on unions – such as the recently defeated Proposition 32 in California, which would have forbidden union contributions to elections.

"These kinds of things come routinely," Vogel said. "I respect their right to challenge what we do, but I will assert over and over again that we are within the law – in fact, if we err at all, it’s on the side of the member."
 
The lawsuit is filed in federal court in California. Carvin said he expects it to move quickly through the appeals court and could arrive at the doorstep of the U.S. Supreme Court next year.