Rebecca Friedrichs

Faced with the greatest legal challenge to their core source of revenue, California unions have braced for defeat and scrambled for alternatives.

Some time after its new term begins this month, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, which challenges the union’s collection of mandatory fees from members. The case’s stakes have been raised as high as possible by plaintiffs’ supporters. “We are seeking the end of compulsory union dues across the nation,” said Terry Pell, president of the Center for Individual Rights, according to the Sacramento Bee.

“Since 1997, the Supreme Court has held that requiring non-union members to pay the cost of collective bargaining prevents ‘free riders,’ meaning workers who get the benefits of a union contract without paying for it,” as NBC News noted. “But in subsequent rulings, several of the court’s conservatives have suggested that the decision should be overruled.” Legal analysts suggested the track record implies a victory for California’s plaintiffs. Erin Murphy, a federal appeals lawyer, told NBC News she “would not feel very good about my prospects if I were the unions.”

Crisis mode

At the end of the Legislature’s final session, pro-union Democrats attempted an unusual “gut and amend” maneuver, wherein a bill’s contents are wiped out and completely replaced without revisiting the standard hearing process. The new language would have required one-on-one, union-sponsored “public employee orientation” for existing and new employees. The content of the orientation “would be the sole domain of the union and not open to negotiation,” with employees “required to attend in person during work hours. Taxpayers would pick up the tab,” the Heartland Institute added in a critical summary.

Although the effort failed, it was a notable reflection of state unions’ concern that they can’t rely on the Supreme Court to protect their current practices. “Public employee unions haven’t had mandated orientations because they don’t need them,” U-T San Diego’s Steven Greenhut observed, calling the last-minute gut and amend a “pre-emptive strike” on the court’s hearing of Friedrichs. “Newly hired workers must already pay dues to the recognized union.”

Not all union supporters have framed the impending decision as a crisis, however. “Even some pro-union voices have argued the Friedrichs case doesn’t portend the end of the world for public-sector unions, in that it might force them to become more responsive and democratic,” Greenhut suggested.

But the court’s decision is likely to hinge on more fundamental questions pertaining to the very definition of a union.

What’s a union?

One element of the problem has been that unions fear members just won’t pay dues if they can get away with it — the so-called “free rider” problem, familiar from the idea that many fewer Americans would pay taxes were they merely voluntary. “No one knows how many would, with annual dues in the CTA, for example, often topping $1,000,” according to the Los Angeles Daily News. “That makes this a life-and-death case for the unions,” which fear the political power of their main adversaries — certain large corporations and high-net-worth individuals — would go undiminished. It would be very difficult, in other words, for the court to successfully separate the question of unions’ political power from the question of their existence.

That has led analysts to focus on a second aspect of the problem of what a union really is. One Justice, Antonin Scalia, has indicated in the past that the existence of unions within the American system of law depends on their ability to generalize the burdens of keeping them running. “In a 1991 case, he wrote that because public sector unions have a legal duty to represent all employees, it’s reasonable to expect all workers to share the costs,” the Daily News noted.

For that reason, the question of what counts as political expenditures would likely come to the fore before the court. But the plaintiffs in Friedrichs have anticipated the controversy, because they see it as the foundation of their entire case. “All union fees, they argue, are in some way used for political activities and since they don’t always agree with the union’s stance, having to pay any fees is an infringement on their first amendment rights,” the Guardian reported.

Monday marks the start of a new school year for Rebecca Friedrichs, a kindergarten teacher at Holder School in Buena Park, a Southern California city of 82,000.

The 25-year veteran of the Savannah School District is to be forgiven if she is wary of the reception she will receive from her public school colleagues.

Not just because she resigned her membership last year in the California Teachers Association, the union that represents most of the state’s public school teachers.

But also because she is the lead plaintiff in a federal lawsuit, Friedrichs vs. California Teachers Association, that challenges the state’s so-called “agency shop” arrangement, which  forces her to pay dues for the collective bargaining the teachers’ union performs not only behalf of members, but also non-members — whether they like it or not. It is being heard in the District Court of the Central District of California, Southern Division.

Freidrichs would prefer not to pay the CTA $1,000 or so a year for its representation. But what really galls the teacher is the $350 or so of her compulsory union dues that go to support the CTA’s political activities, with which she disagrees.

Indeed, the kindergarten teacher supports school vouchers, which the teachers’ union has used her compulsory dues (and the dues of political dissenters among its rank-and-file) to defeat.

Similarly, she opposes measures — like Proposition 30, the $7 billion tax-increase initiative — for which CTA spent millions in union dues last year to win passage – that confer higher salaries and more generous bemefits upon teachers at the expense of everyday taxpayers.

“I think that is wrong,” said Friedrichs.

So do nine other teachers, representing public school districts throughout the state, who have joined Friedrichs in the federal lawsuit against not only the CTA, but also the National Education Association (which receives a portion of their union dues) and 10 local teachers’ unions. The CTA is a division of the NEA.

Center for Individual Rights

The lawsuit by Friedrichs and her fellow teachers was filed by the Center for Individual Rights, a non-profit public interest firm that specializes in civil rights, free speech and other cases affecting individual rights. CIS is working alongside the law firm Jones Day, with partner Michael A. Carvin serving as lead counsel for the plaintiffs.

Carvin argues, “Forcing educators to financially support causes that run contrary to their political and policy beliefs violates their First Amendment rights to free expression and association.”

Not surprisingly, the powerful CTA disagrees. “No one is forced to join a union or to spend money on politics,” said Frank Wells, a spokesman for the teachers’ union. If Freidrichs or any other dissenting teacher doesn’t want their compulsory dues supporting the union’s political activity, he said, they can simply “opt out.”

CIS maintains that opting-out is not nearly as simple as Wells suggests. It is an “often intimidating and time consuming” process politically-dissenting teachers must endure each and every year.

The public interest firm believes that Friedrichs vs. California Teachers Association eventually will find its way to the U.S. Supreme Court and Carvin, lead counsel for Friedrichs and her fellow teachers, thinks there is a very good possibility the justices will rule in the plaintiffs’ favor.

His optimism is based on the majority opinion of Justice Samuel Alito in the high court’s ruling last year in Knox vs. Employees Intl. Union, which held that the Service Employees International Union violated the First Amendment rights of its non-union members by forcing them to pay a 25 percent increase in union dues without their consent to help fight ballot initiatives in the state.

Wells, the CTA spokesman, suggested that the Supreme Court has previously allowed unions to offer the opt-out option to politically dissenting non-members like Friedrichs and her fellow teachers

But in Knox, the justices appeared of a different mind. “[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed,” wrote Justice Alito, “our cases have substantially impinged upon the First Amendment rights of nonmembers.”