Friedrichs, et al. v. California Teachers Association, et. al

LII note: The U.S. Supreme Court has now decided Friedrichs, et al. v. California Teachers Association, et. al.

Issues 

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?

Oral argument: 
January 11, 2016
Court below: 
United States Court of Appeals for the Ninth Circuit

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. 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. 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. 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. 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.

Questions as Framed for the Court by the Parties 

  1. 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?
  2. 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?

Facts 

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. Thereafter, the union is authorized to bargain as an exclusive representative over various “terms and conditions of employment.” 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.

Agency fees are limited to “activities germane to collective bargaining,” which include lobbying activities to aid contract administration and secure wage and hour benefits. Expenses involved in conducting germane activities are chargeable, whereas expenses unrelated to collective bargaining are nonchargeable. Each year, unions must estimate the expenses belonging in each category and send a notice to all non-members. Non-members who do not wish to pay the nonchargeable portions of the agency fee must affirmatively opt out by notifying the union. The union then sends these objecting non-members a rebate for that year. Objecting non-members must annually renew their objections in writing. Non-members who fail to renew their objections must pay the full agency fee for the upcoming year.

Friedrichs and other public school teachers did not wish to be represented by the unions that were the exclusive bargaining representatives. 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.”

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. 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. 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.

Friedrichs then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the District Court’s ruling. 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. Subsequently, Friedrichs petitioned the United States Supreme Court for a writ of certiorari, which it granted on June 30, 2015.

Analysis 

In this case, the Supreme Court has the opportunity to determine whether public sector “agency shop” arrangements and requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing non-chargeable speech by public sector unions, violate the First Amendment. See Petition for a Writ of Certiorari at i. Friedrichs asserts that public sector collective bargaining constitutes political speech because it involves political and ideological issues and that agency fees are unjustified. See Brief for Petitioner at 22, 30. Additionally, Friedrichs argues that Abood is an anomaly that should be overruled notwithstanding stare decisis. See id. at 55–56. She argues that the opt-out system may result in an inadvertent waiver of free speech rights. See id. at 61. In contrast, the Union argues that “agency shop” arrangements do not bar employees’ free speech rights and that agency fees are necessary to promote fairness and stability and to prevent free-riding. See Brief for Respondent at 15–17. The Union contends that the Court should adhere to stare decisis and uphold Abood. See id. at 32. The Union argues it is individuals’ responsibility to raise constitutional rights, as facilitated by the opt-out system. See id. at 55. The Attorney General of California (“The AG”) sides with the Union, arguing that many public sector collective bargaining issues do not constitute political speech. See Brief for the Attorney General of California at 29–30. The AG maintains that employers should be given more latitude regarding agency fees. See id. at 35. The AG also asserts that California relies on “agency shop” arrangements to conduct collective bargaining and that adopting an opt-in system would impose a greater burden on employees. See id. at 45, 54.

PUBLIC SECTOR COLLECTIVE BARGAINING AS POLITICAL SPEECH

Friedrichs asserts that public sector collective bargaining constitutes political speech because topics like “wage policy” implicate matters of public concern by raising political and ideological differences. See Brief for Petitioner at 22. Friedrichs claims that compelled subsidization of collective bargaining representation violates the First Amendment because public sector bargaining influences the decisions made by governing entities. See id. at 21. As a result, Friedrichs argues, collective bargaining’s influence on government spending makes it political speech. See id. at 25. Friedrichs also argues that no one can be coerced to subsidize speech that they do not support as a condition of public employment. See id. at 16. Friedrichs claims that compelled subsidization of speech must be subject to the strictest level of scrutiny when it concerns “core political activity.” See id. at 18.
The Union counters, arguing that “agency shop” arrangements do not bar employees’ right of free speech but merely passes those rights from collective bargaining to public debate. See Brief for Respondent at 17. The Union maintains that employee free speech in collective bargaining is not subject to the same strict First Amendment protections as free speech in public matters exercised as a citizen. See id. at 21, 44. The Attorney General adds that exclusive bargaining representatives have a duty of fair representation and may not discriminate against non-members. See Brief for the Attorney General of California at 15–16. Additionally, the AG argues that non-members are not prevented from expressing views contrary to those of the union or forced to affirm political views with which they disagree. See id. at 24, 26. Furthermore, the AG asserts that many statutorily prescribed topics such as employee leave requirements and safety policies are not political or ideological. See id. at 29–30.

JUSTIFICATIONS FOR AGENCY FEES

Friedrichs argues that agency fees only advance a particular political view—that of the exclusive bargaining representative. See Brief for Petitioner at 23. Friedrichs contends that the government’s interest in labor peace and reducing potential conflict between rival unions does not justify coerced support for one union. See id. at 30. Friedrichs maintains that, without agency fees, unions are unlikely to go bankrupt and that eliminating agency fees would have a small effect on their operations. See id. at 30–32. Friedrichs claims that eliminating agency fees would not lead to non-members free riding because they opposed the union policies initially. See id. at 34. Moreover, Friedrichs argues that exclusive bargaining representation actually forces non-members to free ride because they cannot express differing views. See id. at 37. Friedrichs contends that grievance representation is too small of an expense to justify agency fees. See id. at 45.
The Union asserts that “agency shop” arrangements promote fairness and stability, reducing conflict between employees, and that such a government interest outweighs non-members’ interest in withholding non-chargeable agency fees. See Brief for Respondent at 15–16, 27. The Attorney General asserts that employers are typically given freedom to use their judgment regarding workplace functions, which includes agency fees. See Brief for the Attorney General of California at 35. The Union argues that its tasks are difficult, requiring significant time and money, therefore it claims that it is only fair that costs are evenly distributed amongst all who benefit. See Brief for Respondent at 16. The Union argues that non-members, who still benefit from many issues on which unions bargain, are free riders that benefit from the union’s activities, sometimes at the expense of other union pursuits, therefore resulting in increased financial instability for the union. See id. at 16, 46. In support, the Attorney General argues that members may be unwilling to support a union knowing that their contributions are being used to serve non-members who made no contributions. See Brief for the Attorney General of California at 40. The Union asserts that agency fees incentivize unions to consider the views of non-members when bargaining. See Brief for Respondent at 49.

ADHERENCE TO STARE DECISIS

Friedrichs asserts that stare decisis aims to “promote[ ] the evenhanded, predictable, and consistent development of legal principles.” See Brief for Petitioner at 51. Friedrichs argues that Abood v. Detroit Board of Education, 431 U.S. 209 (1977), actually undermines that goal because it is irreconcilable with later cases which had similar facts but used different reasoning to reach different outcomes. See id. at 51–52, 55. Friedrichs claims later decisions had to adopt a different course of reasoning to reconcile Abood’s “departure from settled law.” See id. at 54. Friedrichs maintains that stare decisis cannot override the Constitution and that a prior decision must yield to a constitutional right. See id. at 52. Friedrichs views Abood as an anomaly that should be overruled for reasons of jurisprudence. See id. at 55–56.
The Union argues that the Supreme Court has reaffirmed and applied Abood in numerous decisions and that the facts of the present case and the current legal environment do not warrant overruling Abood. See Brief for Respondent at 26–27, 32. The Union asserts that many states illustrate their reliance on Abood through their adoption of “agency shop” arrangements and public sector union contracts. See id. at 32–33. Additionally, the Attorney General adds that California has structured its approach to public sector collective bargaining around such arrangements. See Brief for the Attorney General of California at 45. The Union maintains that the arguments purporting that a decision was incorrect are insufficient to overrule precedent. See id. at 38.

"OPT IN" VERSUS "OPT OUT"

Friedrichs argues that courts do not presume that individuals would passively give up fundamental rights. See Brief for Petitioner at 60. Friedrichs contends that states must minimize the burden imposed on teachers to opt out of subsidizing non-chargeable activities so that they do not inadvertently infringe upon free speech rights. See id. Friedrichs maintains that requiring employees to opt out of subsidizing non-chargeable expenses may result in employees accidentally waiving their right to withhold fees. See id. at 61. Additionally, Friedrichs claims that requiring non-members to renew their objections to subsidizing non-chargeable expenses annually is excessive. See id. at 62.
The Union counters, arguing that individuals, not the government, are responsible for asserting their constitutional rights. See Brief for Respondent at 56. In support, the Attorney General asserts that individuals are responsible for making their disagreement known. See Brief for the Attorney General of California at 49. The Union claims that failure to object commonly results in the forfeiture of constitutional rights. See Brief for Respondent at 56. The Union maintains that the right to opt out is used to protect other constitutional guarantees and that the opt out procedure merely requires employees to “check a box on a form.” See id. at 55, 58. The AG adds that requiring employees to opt out annually increases administrative efficiency. See Brief for the Attorney General of California at 53. Additionally, the AG argues that requiring employees to opt in will impose a new burden on the significantly greater number of employees who wish to pay the full agency fee. See id. at 54.

Discussion 

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. 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. 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.

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. The Atlantic Legal Foundation (“Foundation”) argues that collective bargaining, given its essential role in modifying governmental policies, is inherently political speech. Accordingly, the Foundation argues that a compelled agency fee would essentially be no different from forcing an individual to fund a particular political party. 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. 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.

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. 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. 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. Additionally, school districts argue that compelled agency fees allow unions to focus on long-term solutions for all affected individuals. 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.

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. 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. 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.

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.” 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. 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. 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.

Conclusion 

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. 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. 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. The Court’s decision in this case will impact unions’ future abilities to raise funds, and the First Amendment rights of non-members.

Written by 

Reymond Yammine
Tina Zheng

Edited by 

Njeri Chasseau

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