Do unions violate public employees’ First Amendment rights through public sector “agency shop” arrangements or by requiring them to affirmatively object to subsidizing public sector union nonchargeable speech?
Under California law, a union may become the exclusive bargaining representative for all public school employees in a particular school district if it can show that a majority of the employees agree to be represented by that union. See Friedrichs v. Cal. Teachers Ass’n, No. SACV 13–676–JLS, 2013 WL 9825479, at *1 (C.D. Cal. Dec. 5, 2013). Such a union may establish an “agency shop” arrangement with the school district, under which employees, not members of the union, are required to pay an agency fee, and may only opt out from funding union activities not related to collective bargaining. See Friedrichs, 2013 WL 9825479, at *1. Friedrichs asserts that because of the political nature of collective bargaining, compelled agency fees are a violation of the First Amendment, and the opt-out system takes advantage of dissenters unaware of the affirmative objection requirement. See Brief for Petitioner, Rebecca Friedrichs, et al. 22, 30, 55–56, 61. In opposition, the Union argues that there is no justifiable reason to modify the opt-out arrangements, and that “agency shop” arrangements do not infringe employees’ First Amendment rights but are necessary to prevent a free riding problem. See Brief for Respondent, California Teachers Association, et al. at 15–17, 32, 55. The Court’s decision in this case will impact unions’ abilities to raise funds and the First Amendment rights of non-members of the union. See Brief of Amicus Curiae United States, in Support of Respondents at 19–20, 26–29.
Questions as Framed for the Court by the Parties
- Should Abood v. Detroit Bd. Of Education, 431 U.S. 209 (1977), be overruled, and should public sector “agency shop” arrangements be invalidated under the First Amendment?
- Does requiring public employees to affirmatively object to subsidizing nonchargeable speech by public sector unions, rather than requiring employees to affirmatively consent to subsidizing such speech, violate the First Amendment?
Under California law, a union may become the exclusive bargaining representative for all public school employees in a school district if it can show that a majority of the employees consent to its representation. See Friedrichs v. Cal. Teachers Ass’n, No. SACV 13–676–JLS, 2013 WL 9825479, at *1 (C.D. Cal. Dec. 5, 2013). Thereafter, the union is authorized to bargain as an exclusive representative over various “terms and conditions of employment.” See Petition for a Writ of Certiorari, Rebecca Friedrichs et al. at 3. A union that becomes the exclusive bargaining representative in a school district may establish an “agency shop” arrangement, under which employees are required to either join the union or pay an agency fee, typically the equivalent of union dues. See Friedrichs, 2013 WL 9825479, at *1.
Agency fees are limited to “activities germane to collective bargaining,” which include lobbying activities to aid contract administration and secure wage and hour benefits. See Friedrichs, 2013 WL 9825479, at *1, Petition for a Writ of Certiorari at 3. Expenses involved in conducting germane activities are chargeable, whereas expenses unrelated to collective bargaining are nonchargeable. See Friedrichs, 2013 WL 9825479, at *1. Each year, unions must estimate the expenses belonging in each category and send a notice to all non-members. See id. Non-members who do not wish to pay the nonchargeable portions of the agency fee must affirmatively opt out by notifying the union. See id. The union then sends these objecting non-members a rebate for that year. See Friedrichs, 2013 WL 9825479, at *1. Objecting non-members must annually renew their objections in writing. See Petition for a Writ of Certiorari at 6. Non-members who fail to renew their objections must pay the full agency fee for the upcoming year. See id. at 7.
Friedrichs and other public school teachers did not wish to be represented by the unions that were the exclusive bargaining representatives. See Friedrichs, 2013 WL 9825479, at *1. They objected to paying the nonchargeable portions of their agency fees and claimed that these financial contributions, which required their affirmative objection, “violate[d] their rights to free speech and association under the First and Fourteenth Amendments.” See id. at *1–*2.
The United States District Court for the Central District of California granted Friedrichs’s motion for judgment on the pleadings in favor of the opposing party, the Union. See Friedrichs, 2013 WL 9825479, at *2. Friedrichs asked the Court to grant judgment in favor of the Union because her claims were “presently foreclosed by” Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which ruled that it is valid to compel employees to support an exclusive bargaining representative and that a union may use funds from non-members for “political or ideological causes” without non-members’ consent. See id. Additionally, Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir. 1992) held that the First Amendment does not require non-members to affirmatively opt in to pay agency fees and that unions may require non-members to opt out by objecting. See id.
Friedrichs then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the District Court’s ruling. See Friedrichs v. Cal. Teachers Ass’n, No. 13–57095 (9th Cir. Oct. 14, 2014). Both the District Court and the Ninth Circuit omitted the trial stage of proceedings because they did not have the authority to revisit controlling precedents. See Petition for a Writ of Certiorari at 6. Subsequently, Friedrichs petitioned the United States Supreme Court for a writ of certiorari, which it granted on June 30, 2015. See Brief for Petitioner at 9.
PUBLIC SECTOR COLLECTIVE BARGAINING AS POLITICAL SPEECH
JUSTIFICATIONS FOR AGENCY FEES
ADHERENCE TO STARE DECISIS
"OPT IN" VERSUS "OPT OUT"
Here, the Supreme Court will determine whether “agency shop” arrangements and requiring public employees to opt out from subsidizing a union’s political speech violate the First Amendment. See id. at 16–18, 60. Friedrichs asserts that, given the political nature of collective bargaining, compelled agency fees are a violation of the First Amendment, and the opt-out system takes advantage of the inertia inherent in a waiver program. See id. at 21–22, 60–61. Alternatively, the Union argues that there is no justifiable reason to modify the opt-out system and that compelled agency fees are necessary to prevent non-union members from taking advantage of union member’s contributions. See Brief for Respondent, California Teachers Association, et al. at 49–50, 56.
DO COMPELLED AGENCY FEES VIOLATE AN INDIVIDUAL'S FIRST AMENDMENT RIGHTS?
Supporting Friedrichs, a group of state public policy research organizations argue that agency fees force individuals who affirmatively chose not to join the union to support it financially. See Brief of Amici Curiae State Public Policy Research Organizations, in Support of Petitioners at 7–8. The Atlantic Legal Foundation (“Foundation”) argues that collective bargaining, given its essential role in modifying governmental policies, is inherently political speech. See Brief of Amicus Curiae Atlantic Legal Foundation, in Support of Petitioners at 14. Accordingly, the Foundation argues that a compelled agency fee would essentially be no different from forcing an individual to fund a particular political party. See id. at 31. Drawing from the experiences of states with no compelled agency fees, the public policy research organizations maintain that unions can still cover their bargaining costs. See Brief of State Public Policy Research Organizations at 17. Additionally, the Buckeye Institute for Public Policy Solutions maintains that unions should be responsible for earning their funding by following policies that are more “satisfactory” to public employees. See Brief of Amicus Curiae Buckeye Institute for Public Policy Solutions, in Support of Petitioners at 10–12.
The United States, supporting the union, argues that it is necessary to have a single union handle collective bargaining with the government in order to keep all governmental activities free from disruptions. See Brief of Amicus Curiae United States, in Support of Respondents at 19. The United States admits, however, that this system creates a significant free rider problem, from non-members as well as from members of the union who would have no incentive to remain members. See id. at 19–20. The United States concedes that agency fees violate individuals’ First Amendment rights, however, it argues that the violation is not substantial enough to change decades of established law. See id. at 26–29. Additionally, school districts argue that compelled agency fees allow unions to focus on long-term solutions for all affected individuals. See Brief of Amici Curiae School Districts, in Support of Respondents at 6–8. Otherwise, the school districts maintain, requiring unions to earn their own funding would force unions to choose ineffective popular short-term solutions over unpopular long-term ones. See id. at 12.
DOES REQUIRING PUBLIC EMPLOYEES TO OPT OUT FROM FUNDING NON-COLLECTIVE BARGAINING RELATED ACTIVITIES VIOLATE THEIR FIRST AMENDMENT RIGHT?
The Rutherford Institute argues that an opt-out system requires individuals to affirmatively voice their disagreement, therefore violating their right to keep their thoughts private. See Brief of Amicus Curiae The Rutherford Institute, in Support of Petitioners at 9–11. The Cato Institute, arguing against an opt-out system, maintains that such a system puts the burden on individuals to reject funding speech that they do not support. See Brief of Amicus Curiae The Cato Institute, in Support of Petitioners at 12. The Institute maintains that requiring unions to gather affirmative consent poses no additional burden on the union, which has no initial claim to the consent and is already required to distribute accurate information to all individuals from whom it receives funding. See id. at 16–17.
The United States argues that there should be a compelling reason to modify decades of established law and significantly disrupt the functioning of “state and local governments.” See Brief of United States at 33. The United States maintains that in fields such as criminal law, individuals are required to affirmatively raise their constitutional objections in order for those objections to take effect. See id. at 35. A group of corporate law professors argue that requiring individuals to opt out from funding policies with which they disagree is not a significant violation of their First Amendment rights. See Brief of Amici Curiae Corporate Law Professors, in Support of Respondents at 23. Professor Cynthia L. Estlund et al., argues that employees were only required to check a box on a notice provided by the union in order to opt out. See Brief of Amici Curiae Professors Cynthia L. Estlund, et al., in Support of Respondents at 23.
In this case, the Supreme Court will determine whether “agency shop” arrangements and requiring public employees to opt out from subsidizing political speech by public sector unions are violations of the First Amendment of the Constitution. See Brief for Petitioner at 16–18, 60. Friedrichs asserts that because collective bargaining is political speech, compelled agency fees are an unjustified infringement upon the First Amendment, and the opt-out system takes advantage of the inertia inherent in a waiver program. See id. at 21–22, 60–61. On the other hand, the Union asserts that there is no justifiable reason to modify the opt-out arrangement and that “agency shop” arrangements do not infringe upon employees’ First Amendment rights but are necessary to prevent a free riding problem. See Brief for Respondent at 49–50, 56. The Court’s decision in this case will impact unions’ future abilities to raise funds, and the First Amendment rights of non-members. See Brief of Amicus Curiae United States at 19–20, 26–29.
The authors would like to thank Professor Stewart J. Schwab for his insights into this case.
- Garrett Epps, The End of Public-Employee Unions?, The Atlantic (February 20, 2015).
- George Leef, Friedrich v. C.T.A. — What If Unions Didn’t Have Special Powers and Privileges?, Forbes (July 13, 2015).
- John Fensterwald, This Supreme Court Case Could Significantly Weaken Teachers Unions, The Huffington Post (October 23, 2015).
- Laura Moser, Why an Upcoming Supreme Court Case Has Teachers Unions Feeling Very, Very Nervous, Slate (July 8, 2015).