Under an array of federal court precedents such as Atkins v. City of Charlotte and the labor statutes of every state in the union, K-12 public educators have the right to join and financially support a union without being fired as a consequence. But otherwise the state laws and policies governing labor-management relations in public schools are extraordinarily diverse.
Statutes and court precedents in a handful of states like North Carolina and Texas prohibit school districts from recognizing or bargaining with teacher unions of any kind. In a number of other states like Colorado and Louisiana, no school district is ever under any state legal obligation to bargain with a union, and no school district may cut a deal with a union to make union membership or financial support a condition of teacher employment, but school districts may opt under certain circumstances to recognize a union as the “exclusive” (monopoly) spokesman for all teachers with regard to matters concerning their pay, benefits, and other conditions of employment.
In a third group of states, including Florida and Kansas, state law actually forces school districts under certain circumstances to recognize a particular government union as teachers’ monopoly-bargaining agent, but the individual teacher’s Right to Work without joining or bankrolling any union remains protected. Finally, in Big Labor stronghold states like California, Illinois, and New York, both teacher union monopoly bargaining and teacher forced unionism are authorized and promoted by law.
Regardless of the labor-relations regime under which they work, public school teachers in all 50 states have employer-provided health and dental insurance, sick leave, and alternative work-schedule options. Teacher employment contracts in all 50 states provide that teachers may not be required to work more than a specified amount of time a day. Nowhere in the U.S. do union officials bear the cost of furnishing such benefits. The cost is covered, of course, by taxpayer dollars. Of course, since the public resources available for K-12 employee compensation are finite in all 50 states, more generous insurance and sick leave policies can and often do come at the expense of teacher salaries.
But because teacher union bosses in states like California, Illinois and New York have the statutory power to speak for all educators in negotiations with the school district over health insurance, sick leave, etc., it is constitutional to force all public educators in those states, even those who have ample reason to believe they get paid less as a result of being under a union monopoly, to bankroll a teacher union, or be fired from their jobs.
At least, this is what a team of California Teachers Association (CTA) union lawyers led by David Frederick of the Beltway firm Kellogg, Huber, Hansen, Todd, Evans & Figel effectively told the U.S. Supreme Court in a brief filed at the end of last week.
Frederick and his cohorts are fighting doggedly to persuade the Supreme Court to rule against California elementary school teacher Rebecca Friedrichs and the other educator plaintiffs in Friedrichs v. CTA, a case expected to be heard some time early next year. Based largely on precedents argued and won on behalf of freedom-loving employee clients by attorneys for the National Right to Work Legal Defense Foundation, the Friedrichs complaint contends that state laws and other policies that authorize the termination of public employees for refusal to pay dues or fees to an unwanted union violate the First Amendment.
In the past, Big Labor lawyers, like other apologists for government-sector compulsory unionism, have sought to defend its constitutionality as well its general appropriateness largely on the never-substantiated assumption that all public employees, including those who would prefer to be union-free, somehow “benefit” from being under union monopoly control.
As recently as this spring, in fact, the CTA team of lawyers in the Friedrichs case (then led by Jeremiah Collins of the D.C. firm Bredhoff and Kaiser) insisted in a brief that the forced-fee scheme to which the plaintiffs object is
“simply a requirement that a nonmember teacher who receives . . . additional compensation as a result of the unions’ efforts . . . must pay a share of the unions’ costs.”
But as Friedrichs’ attorneys, most of whom belong to the Cleveland-based law firm Jones Day, subsequently explained, this snide characterization is demonstrably not true with regard to vast numbers of potentially and actually objecting teachers:
Respondent Unions advocate numerous policies that affirmatively harm [many] teachers . . . . NEA [that is, the National Education Association, CTA’s massive parent union] considers any “system of compensation based on an evaluation of an education employee’s performance” to be “inappropriate,” and “opposes providing additional compensation to attract and/or retain education employees in hard-to-recruit positions.” (Citation omitted.) Teachers who care more about rewarding merit than protecting mediocre teachers could (indeed, should) reasonably oppose these policies. So too for teachers who specialize in difficult subjects (like chemistry or physics), but are trapped in union-obtained pay systems that stop them from outearning gym teachers.
In their November 6 merits brief, the new CTA counsel of record and his team don’t even try to deny the fact that, as long as they follow the marching orders given them by the official NEA Handbook, union agents engaging in contract negotiations will often OPPOSE higher compensation for teachers in cases where school districts would probably grant it if they had a free hand.
Instead, David Frederick et al contend, effectively, that teachers who are union nonmembers and get paid LESS as a consequence of the efforts of union officials should nevertheless be forced to pay union fees because union officials also help determine the kind of health and dental insurance and sick leave benefits they have. Apparently, Frederick expects the Supreme Court to overlook the fact, noted above, that teachers in states where teacher unions have no legal bargaining privileges whatsoever also have health and dental benefits and sick leave!
The tacit admission that many educators in states like California, Illinois and, New York get paid less as a consequence of monopolistic unionism is one of several remarkable features in the latest CTA Friedrichs brief. Another is the brief’s lengthy argument as to why government-imposed restrictions on public employees’ freedom to dissociate from a union should not be subject to “strict scrutiny.” That argument will be addressed in a future Institute blog post.
BRIEF FOR THE UNION RESPONDENTS