Symposium: The Friedrichs petition should be dismissed

Catherine Fisk is the Chancellor’s Professor of Law at the University of California, Irvine School of Law.

Friedrichs v. California Teachers Association presents two issues: (1) whether to overrule Abood v. Detroit Board of Education, and hold that the First Amendment prohibits school districts and teachers’ unions from requiring teachers to pay the union their fair share of the cost of union representation services; and (2) whether the First Amendment requires any government employee who wishes to join a union to opt into membership rather than, as the law currently requires, to opt out.  The Court ought not decide either issue because both depend on facts not in the record.  If it does decide the case, it cannot rule for the petitioners without substantial violation of the First Amendment rights of unions and their members.

Friedrichs was rushed through the lower courts without any factual record, apparently in response to the Court’s 2012 opinion in Knox v. Service Employees International Union, Local 1000, inviting First Amendment challenges to public-sector labor laws.  In the trial court, the plaintiffs filed suit and promptly requested the court to enter judgment on the pleadings in favor of the defendants, which the court did, finding the matter controlled by Abood and other cases rejecting the First Amendment challenge to union “fair share” fees.  In the Ninth Circuit the plaintiffs likewise requested and received summary affirmance in favor of the defendants.

The absence of a record, however, will be a problem. In Harris v. Quinn (2014), the Court declined to overrule Abood, and its analysis depended on facts.  The Harris Court found that it was unnecessary for unionized home care workers to pay their fair share of the cost of negotiating and enforcing a collective agreement because, under Illinois law, the union had few issues to negotiate and no role in enforcing the contract for nonmembers.  The Harris Court invented a test: an “agency fee provision cannot be sustained unless the cited benefits” for employees cannot be achieved if the union must “depend for funding on the dues paid by those [employees] who choose to join.”  This test requires the union to prove that fair share fees are necessary.  The Court ruled against the union in Harris because “[n]o such showing has been made.”

In Friedrichs, the union asked to develop a factual record to make the showing Harris requires about the costs the union incurs in bargaining on behalf of teachers and in enforcing their rights under collective agreements and the likely extent of the free-rider problem. The plaintiffs opposed that request, and the trial court granted judgment on the pleadings because the case was controlled by Abood.  The Court cannot rule against the union in Friedrichs for failing to make a showing that the union specifically tried to make.  Nor can the Court rely on the Harris reasoning that the CTA need not charge fees without any record evidence.  As Justice Antonin Scalia (joined by Justice Anthony Kennedy) noted in Lehnert v. Ferris Faculty Association in 1991, agency fee provisions are necessary because public sector labor law imposes significant responsibilities on unions and thus the law itself would create a severe free rider problem if employers and unions could not require employees to pay for the services that the union is required by law to provide.

Nor can the Court decide the opt-in /opt-out issue without a record because the First Amendment issue turns on factual questions. The primary argument that the First Amendment requires members to opt in is that some people who don’t want to be part of the union end up being full dues-paying members because they fail to opt out.  The primary argument against requiring members to opt in is that people want to be members but fail to opt in or choose to free ride on the union’s political activities.  Whose First Amendment rights deserve more weight depends on factual questions:  are more people forced into being union members who prefer not to?  Or are more people fee payers simply because they don’t get around to joining?  The First Amendment question only can be decided with a factual record addressing these questions. Unless the Court is prepared to hold that law can never authorize membership organizations to use an opt-out system to charge members, the Court will find it difficult without a record to decide why California cannot allow the CTA to use “opt out.”

If the lack of a factual record is not a problem, the breadth of what the petitioners seek in Friedrichs may be.  The Court was asked to overrule Abood in Harris and instead only criticized and distinguished it, finding the free rider argument to be unconvincing given that most terms of home care work are set either by Illinois statute or by the care recipient, rather than through collective bargaining and grievance arbitration.  The same cannot be said about teachers in California, who bargain about a wide range of subjects and for whom the California Teachers Association has a duty of fair representation that requires representing all teachers in grievance proceedings.  As Justice Scalia explained in Lehnert, “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”  Justice Scalia noted, as Justice Samuel Alito quoted in Harris, that “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for,” but what Scalia emphasized in Lehnert is that nonpaying members of the bargaining unit “are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.”  If there were not five votes to overrule Abood in a case in which the union’s bargaining and contract administration functions were narrow, it is hard to see why there would be in a case in which the union’s statutorily imposed duties to free riders are broad.

And there is good reason to believe that Justices Scalia and Kennedy may be reluctant to abandon the position articulated in Lehnert:  to require a union to spend its members’ dues representing nonmembers for free impinges the First Amendment rights of the union and its members to the same extent that requiring nonmembers to pay their fair share of the union’s costs impinges on the nonmembers’ rights.  If it violates the First Amendment right of a nonmember to pay fees to the union that is required by law to provide representation services, it equally violates the rights of the union and its members to use their money to speak on behalf of the nonpayer.

Some degree of compelled subsidy for the speech of others is necessary to live in a community.  Laws require contributions to health and retirement plans and payment of utility bills, and the insurance companies and utilities use some of our money to provide services and some to engage in speech with which we may disagree. Like insurance companies and utility companies, unions pool money contributed by many stakeholders and spend it to provide services and to engage in expressive activity. When they do so, they advance the interests of the entity and its stakeholders who support the action, and, sometimes, they thwart the interests of stakeholders who oppose it.

In Davenport v. Washington Education Association, with Justice Scalia writing for the majority, the Court upheld a Washington campaign finance law requiring unions to collect money for political campaigns on an opt-in rather than opt-out basis. The Court rejected the union’s First Amendment challenge to the law, explaining that the statute did not regulate expenditure of the union’s or its members’ dues but only restricted how the union raised and spent money of nonmembers. Justice Scalia acknowledged that the union “might have had a point if, as it suggests at times, the statute burdened its ability to spend the dues of its own members” and not just the fees paid by nonmembers. In Friedrichs, the petitioners ask the Court to require a union and its members to spend the dues of the union’s members on expressive activity for nonmembers.  On the Court’s analysis, that is compelled speech.

The Abood rule is a reasonable compromise among the First Amendment rights and responsibilities of unions, members, and nonmembers.  The union has a legal duty to represent all employees fairly, and it can charge dissenting nonmembers only for the costs of discharging that duty.  While contract negotiation and enforcement involve expressive activity, Abood allows unions to collect fees from dissenters only for their fair share of the services that the law requires the union to provide to all, and not for political activity not germane to its role as bargaining agent.  That does not violate the First Amendment rights of nonmembers any more than does compelled contributions to pension and health insurance companies or utility companies or paying one’s taxes.