Tuesday, May 7, 2013

Another Attack on Public Unions: New California Case to Test Public Unions' Ability to Collect Dues

GavelThanks to Charlotte Garden (Seattle) for passing on this interesting and under-reported story about a new case just filed in California which has the potential to drastically change the way public unions operate in that state. The case is Friedrichs v. California Teacher Association and the complaint can be found here.

Peter Scheer on the 1st Amendment News website writes in his post, New 1st Amendment Case Poses Existential Threat to Public Employees Unions:

In a scarcely-noticed lawsuit filed [April 29th] in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.

And in case you think this case is a non-starter in light of the U.S. Supreme Court's Abood decision, think again:

On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.

In other words, another attack on the very existence of public unions, like we have already seen in Wisconsin, Ohio, and Michigan.  The California public employee unions are extremely strong and willing to put the necessary money into this litigation to win, so it is anyone's guess what might happen.  It might come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there (as it did with Act 10 and the conservative-leaning Wisconsin Supreme Court).



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Explain to me how preventing a union from forcing people to pay dues to it is an "existential threat"? How is it that only unions --- among all private organizations --- cannot survive on voluntary contributions? Or, for that matter, without the government acting as its collection agent?

Really, Paul: when you use hyperbole like this, you simply sound silly. Or utterly lacking in confidence in unions' ability to earn the support of the people they purport to represent.

By the way, I believe that this case was filed in Federal court (the link didn't work for me, but the other link refers to Federal court). If so, the makeup of the California Supreme Court is of no relevance to the case. You might want to correct that.

Posted by: James Young | May 7, 2013 8:06:14 PM

How could the Friedrichs case “come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there,” since Plaintiffs filed suit in the U.S. District Court for the Central District of California Southern Division? Obviously, the parties will appeal Friedrichs to the Ninth Circuit Court of Appeals and the U.S. Supreme Court!

Posted by: Mark E. Moore | May 8, 2013 9:10:55 AM


I think it goes to the exclusive representation/free rider point. No other voluntary organizations are required to represent non-members. I know you will argue it is different, that your so-called monopoly bargaining argument/no actual free rider argument makes it different. Nevertheless, it is accepted (unless this case says otherwise) as the principle behind requiring non-members to pay.

Posted by: Per Son | May 8, 2013 3:03:14 PM

Unions can avoid the free rider problem by only charging non-members for chargeable activities, without the requirement of opting-out – notwithstanding the mistaken principle that dissent should not be presumed – one of the principles Plaintiffs in Friedrichs seek to overturn.

Posted by: Mark E. Moore | May 9, 2013 10:20:10 AM

I'm not arguing anything, "Per Son"; it's not my case. But there are two ways of avoiding the so-called "free rider" problem: (1) force unwilling people to pay dues; or (2) surrender monopoly bargaining/exclusive representation. The former reduces liberty, while the latter is lobbied for and fiercely guarded by labor unions.

Unions week crocodile tears over the fact that they "are required to represent non-members." It's a lot like buying a horse, and complaining about the high price of oats.

Mr. Moore makes a good point, too, though as I understand the complaint, it attacks the notion of ALL public-sector forced unionism, not just opt-out requirements.

Posted by: James Young | May 9, 2013 12:20:18 PM

James: it is you who I missing the point. My reference to "argument" is your repeated statements that are contrary to accepted law. The free rider concern is legitimized by many things including current law in all non right to work jurisdictions. I deal with it everyday given that I work with federal employees. I hear what many non-members say and it has nothing to do with philosophy or generally dislike I the union. It is admitted cheapness, admitted freeloading, and they join very quickly when they get in trouble.

Folks are trying to change the legal regime and understanding as this case shows. As for exclusive representation I can think of many union folk who would live to see it go away.

Posted by: Per Son | May 10, 2013 6:33:33 AM

Per Son, the crux of the problem is union greed and union freeloading, rather than non-member cheapness and freeloading – a fact that delegitimizes the free rider argument to the realm of red herrings.

If not, please explain why unions refuse to limit agency fee collections to chargeable activities, without the requirement of opting-out?

As the former president of a union in the public sector and a current non-member, I witnessed numerous tactics used by unions to nullify the First Amendment rights of non-members with the sole purpose of evading the non-member’s right to recoup non-chargeable agency fees.

The most successful tactic involved the union and employer – at the time of hire –deceiving workers into believing that Massachusetts law required the payment of agency fees equal to full union dues through payroll deductions, by conflating the payment of agency fees with the method of payment, thus evading the procedural protections enshrined in 456 CMR 17.00 and Massachusetts case law.

Another tactic witnessed involved the union’s refusal to issue an annual Hudson notice, or issue a Hudson notice in a Lilliputian font that the non-member could not possibly read – or challenge – without access to a microscope. If the non-member persisted in exercising the rights of a non-member to recoup non-chargeable agency fees – money withheld from the non-member’s wages through fraud – the union and employer engaged in a conspiracy of silence and only responded to the non-member, if and when litigation arose knowing that few workers will spend thousands of dollars in attorney’s fees to recoup less than a hundred in overpaid agency fees.

Thus the union, “when they get in trouble” modify their conduct, not the “free-riding” non-member.

Posted by: Mark E. Moore | May 10, 2013 8:30:35 AM

Can we battle anecdotes some more? Mine versus yours? I choose Charizard.

Posted by: Per Son | May 10, 2013 12:10:18 PM


I bet I have counter anecdotes to your anecdotes. Does not really get us anywhere does it? Of course the plural of anecdote is not data.

Posted by: Per Son | May 11, 2013 5:28:38 AM

My "repeated statements that are contrary to accepted law." "The free rider concern is legitimized by many things including current law in all non right to work jurisdictions"?!?!

Well, so was "dissent is not to be presumed," until Justice Alito called it out for the dicta that it is and always was in Knox v. SEIU Local 1000, 132 S.Ct. 2277 (2012). Complaints about "free riders" is a political argument, not a legal one. As evidenced by the fact that those defending BarryCare dared not make it when the case against it arrived in the courts, even though it is the prime motivation behind the individual mandate.

And of course, it's a fraudulent one (much as it would have been in the health-insurance context, where it's a problem also created by Congress). Based upon the myth that unions are "forced" to do something they don't want to do. Institutionally, and no matter how "many union folk ... would l[o]ve to see it go away," unions (and some employers) support it. It would disappear tomorrow if unions were to lobby for a change in the law.

Posted by: James Young | May 12, 2013 3:54:19 PM

Here are my anecdotes: every week I hear from non-union members who tell me they would join if the had to join the union, but do not because "they get the same benefits and the union needs to represent them." They learn this is patently false, and regrets have been expressed to me. I shed no tears. For example, in the federal sector, the union only needs to treat folks the same for things that arise as a result of the exclusive representation - - this is how it works for performance-based removals:

1) Members get the coaching and mentoring during the Performance Improvement Plan period. No requirement under the CBA to provide this so nonmembers get told to join or don't bother us until you want us to consider arbitration.

2) Members get representation by seasoned leaders during oral replies. Oral replies are available to everyone with any representative. The union can say no to nonmembers, who are left to do it on their own or pay an attorney.

3) The removal is upheld by the Agency and it is time to request arbitration. We do not take all cases forward, but generally the nonmembers who went it alone did such piss-poor work putting their PIP period together that the case is unwinable.

Why do I give yet another anecdote? Because I see time-and-time again smug nonmembers who learn too late what the union could have done for them. There are few places where I can tell members to pound sand, but when I do, it tastes so sweet.

Posted by: Per Son | May 13, 2013 2:02:50 PM

And I wonder why Federal-government unions provide those non-bargained-for services, "Per Son"? Might it be because they are disciplined by the market, as they are not permitted to force "represented" employees to pay dues, and are forced to EARN their support?

Posted by: James Young | May 15, 2013 6:16:56 PM


There is a mixture of a lot of things. My union provides almost nothing to nonmembers if we are not required to provide those services by law--which is anything other than stuff arising from the contract. I'll be honest, when a non-member freeloader comes and says they are hanging on by thread and need our support and help, and they don't join then, I ask if they want us to file a grievance. If they say no or say they need help with their oral/written reply, I walk away with a clean conscience. If there were agency fees we could a whole lot more effective at helping folks--it is plain and simple, and we wouldn't need to waste money and bargaining strategies on folks who like the fruit, but won't pay for the fertilizer.

On that note, I have yet to meet someone who is opposed to our negotiated fruit.

Posted by: Per Son | May 16, 2013 8:05:57 AM

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