Farce v. Fact in Friedrichs v. California Teachers Association
January 21, 2016
By James Anderson
The outcome of a case being heard by the United States Supreme Court could determine the fate of organized labor.
With Friedrichs v. California Teachers Association, the Supreme Court will decide on two matters liable to impact the ability of unions to remain viable, capable of protecting workers’ rights.
Rebecca Friedrichs, described as “a dissident teacher in Southern California,” appears poised to continue a trend of severing the land of palm trees and exorbitant rental rates from its counter-cultural history with her legal affront on organized labor now being considered by the nine most influential justices in the US.
The Supreme Court justices must decide whether a decision from the 1977 case Abood v. Detroit Bd. of Ed. should be overruled, thereby invalidating public sector “agency shop” arrangements. Those arrangements are what currently permit the CTA and other unions to collect “fair share” fees from all employees at a unionized workplace whether or not those employees opt to become members of the union. Under the present system, no educators are forced to join a union, but all receive the benefits of union representation as required by law. Those opposed to paying additional dues and joining a union currently do not have to.
Educators in the public sector in states like California, however, can be required to pay fees to help cover the cost of union representation in their workplace. By law, that money cannot go toward political donations. Instead, it is supposed to help with the costs unions incur from bargaining, defending workers through the grievance process and otherwise protecting the rights of both members and non-members covered under a union’s collective bargaining agreement.
Depending on how the Freidrichs v. CTA case unfolds, labor unions across the country – not just in select states – could be denied “fair share” fees in the future.
The Court will also decide whether the current compromise for collecting those fees violates the First Amendment of public employees since with the present system, the employees must affirmatively object to subsidizing the speech of unions as opposed to arrangements that would require employees to affirmatively consent to supporting such speech.
The Supreme Court started hearing arguments for the case on January 11.
A petition for a writ of certiorari, an order that enables a higher court to review the proceedings or decision of a lower court, filed late last January, formally initiated the Supreme Court case process. Attorney Michael A. Carvin is representing Friedrichs, the petitioner, in the case against the CTA.
Anti-union educators have rallied in support of Friedrichs with equal parts gusto and what could be called subterfuge if not so farcical.
“The teachers’ unions’ interests are political, and they’re against the interests of the very students that they are being commissioned to help,” said Center for Urban Renewal and Education activist Star Parker, without much – if anything – in the way of evidence to support her claims.
While union activists take pains to point out that teacher working conditions – incontrovertibly worse in states where “fair share” has been banned and demonstrably worse in states where so-called “right-to-work” laws have been passed – are strongly correlated with student learning conditions, the empirically verified arguments in defense of quality education and worker rights do not seem to phase Friedrichs followers.
Neither evidence, nor logic, nor informed analysis nor coherent thoughts appear all that important to supporters of Friedrichs eager to voice what resembles farcical jibber jabber more than it does anything we could honestly call opinion.
“No teacher should be compelled or forced to join a union against their will, most certainly when many of the positions that the unions take are against the will of the teachers,” said Minnesota State Representative Cindy Pugh, sharing her finest non sequitur remark on the case in an interview at a rally outside the U.S. Supreme Court during the hearing.
No teachers are “compelled or forced to join a union” under existing arrangements, but that does not mean, as Pugh and others know, that the opposite cannot be so forcefully asserted facts are drowned in the din of declamations aimed at breaking the increasingly enfeebled backs of unions so as to further concentrate power and wealth at the top, where Friedrichs supporters presumably believe it belongs. They remain vigilant, consummate Don Quixotes in a narrative that has turned sharply to the right and now appears more akin to a ruling class wet dream than any quixotic quest one would find in a classic Cervantes novel.
Not to be outdone, Congressman Barry Loudermilk (R-GA), waxed existential at the rally as regards organized labor.
“For unions to exist they must exist under these circumstances,” he said, clearly contemplating how to make the next words that would come out of his mouth as relevant as possible. “That they represent the will and the interest of the people, and that membership in that union is voluntary, and remains voluntary, because the only way that you have to ensure that they represent you is by the power of your purse.”
Showing that Southern politicians are just as capable of germane political speech, Loudermilk milked the proverbial Straw Man as powerfully as any union-busting blowhard who spoke before him, ripping at the metaphorical teat of the straw figure of misrepresentation his rhetoric limply erected.
Again, the voluntary nature of union membership is not a question the Supreme Court will be deciding in Friedrichs v. CTA. In point of fact, unions permit individuals they represent to become members, participate in organizational decisions and thus ensure members represent themselves through the union – thereby helping to make sure those represented might make a living wage and actually have some power of purse to exercise.
But those nuances need not and do not concern fans of Friedrichs.
Speakers at the rally and throughout the pro-Friedrichs camp could have used, but unsurprisingly did not draw from, for example, extensive research by Jeffrey Keefe with the Economic Policy Institute who examined the issues pertinent to the Supreme Court case.
Closer to reality and safely distanced from the afore-quoted anti-union jibber jabber, Keefe concluded that “there is an inextricable link between” the capacity of a public employee union to perform its primary obligation of collective bargaining as the exclusive representative of employees and the revenue the union collects from members’ dues as well as “fair share” fees.
“Unions are held accountable by internal democratic processes and procedures open to all members and they can be decertified by a majority vote of their bargaining unit members,” he wrote. “Union members ultimately determine how much to ‘tax’ themselves as they set union dues levels, and fair-share fees are based on a percentage of what members pay in dues. Eliminating fair-share fees for public employees can only weaken their labor organizations’ capacity to represent all bargaining unit members.”
The justices sitting on the highest federal court in the country should decide later this year whether unions will be able to retain that capacity to benefit all those they represent and the working class more broadly, or whether history will reflect the farce the Friedrichs position represents.
James Anderson is a doctoral candidate in the College of Mass Communication and Media Arts at Southern Illinois University Carbondale. He taught two media studies classes in the Department of Communication at California State University San Marcos during the fall 2015 semester. He has been a member of several unions, including Graduate Assistants United, the California Faculty Association, UFCW Local 135, and the Industrial Workers of the World. While a Graduate Assistant at SIUC, he served as steward for his college and as co-chair for the Legislative and Political Action Committee. He was a long-time member of the GAU Communications Committee. He regularly contributed to the GAU website and newsletter. His academic writing has appeared in journals like Critical Studies in Media Communication and the International Review of Information Ethics. His journalistic work and editorials have been featured in news outlets including Truthout, In These Times, Toward Freedom, ROAR Magazine, ZNet and Counterpunch.