Big Labor Representation Without Benefit


Can Big Labor Representation That Cuts Your Pay Really Be a Benefit?

Even Pro-Forced Unionism California Attorney General and U.S. Senate Candidate Kamala Harris Admits Labor Laws Give Union Bosses ‘Substantial Latitude to Advance Bargaining Positions’ That Hurt Talented Employees

(Click Download and Share this Fact Sheet)

The two sides in Friedrichs v. California Teachers Association,[1] the closely watched federal case in which a 4-4 U.S. Supreme Court barely upheld a 39-year-old precedent regarding the constitutionality of forced union fees as a job condition in the government sector early this spring, Big-Labor-Representation-Without-Benefitseemed bitterly divided.  And they were, for the most part.

But on one important matter in Friedrichs, by the time oral arguments were heard in January, there was no longer any dispute between the plaintiffs – 10 independent-minded Golden State educators – and the respondents – the officers of the National Education Association (NEA) union and its California subsidiary along with union-label California Attorney General Kamala Harris.

In their September 2015 merits brief to the High Court, the plaintiffs drew upon passages in the NEA Handbook that are largely intended to give marching orders to the agents of NEA union subsidiaries who negotiate contracts with school districts to make the case that the respondent unions “advocate numerous policies that affirmatively harm [many] teachers . . . .”

Specifically, wrote a team of attorneys led by Michael Carvin of the Cleveland-based law firm Jones Day:

NEA 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.”

Teachers who “care more about rewarding merit than protecting mediocre teachers” should “oppose these policies,” concluded the Friedrichs plaintiffs. And “teachers who specialize in difficult subjects (like chemistry or physics), but are trapped in union-obtained pay systems that stop them from out-earning gym teachers,” should also oppose those policies.

In the reply briefs they filed in November 2015, neither teacher union bosses nor Ms. Harris, both of whom were arguing in favor of forced union fees, contested the fact that many teachers get paid less due to union monopoly bargaining.

And Ms. Harris actually confirmed in her own brief that, under statutes and case law authorizing monopolistic unionism, Organized Labor officials “do have substantial latitude to advance bargaining positions that . . . run counter to the economic interests of some employees.”

After the Friedrichs oral arguments concluded roughly seven months ago, High Court observers overwhelmingly expected a 5-4 decision siding with the plaintiffs and stating that statutes authorizing union officials to get teachers and other public servants fired for refusal to bankroll a union they would never voluntarily join violate the First Amendment.

‘Undeniably Unusual’ Privilege For Government Union Bosses Was Given a Judicial Nod in 1977

But once Antonin Scalia, one of the five justices who were expected to agree with the plaintiffs, passed away on February 13, a deadlocked court became the expected outcome.  And indeed, on March 29, a one-sentence-long Friedrichs opinion confirmed that, as a consequence of a 4-4 split among the eight justices, Big Labor bosses would continue to be able to force public employees who aren’t union members to pay union fees, or be fired.

In other words, the Friedrichs tie vote means that the High Court’s misguided 1977 ruling in Abood v. Detroit Board of Education[2] remains the law of the land.  In Abood, government union officials were given a judicial green light to force public employees, including union nonmembers, to pay union dues and fees in jurisdictions where union officials are granted a monopoly to represent all front-line employees in a workplace.

Bluntly speaking, Abood and its progeny give officers of labor unions “the power, in essence, to tax” government employees.

This was Justice Scalia’s apt characterization of public-sector forced-unionism arrangements in his majority opinion for the National Right to Work Legal Defense Foundation-won case Davenport v. Washington Education Association.[3]  It is, Scalia admitted, “undeniably unusual” for a “private entity” to be granted taxation privileges over public servants.

[1] 578 U.S. ___ (2016)

[2] 431 U.S. 209.

[3] 551 U.S. 177.