A Witness to History: Two Teachers Attend Friedrichs vs. CTA

By: Marla Kilfoyle, Executive Director of BATs and Melissa Tomlinson, Asst. Executive Director of BATs

At 6:45 a.m., braving about 30-degree weather, we took a cab down to the Supreme Court building. Although we got there around seven a.m., we were still 30th in line. We understood clearly that were were in line to witness the case that could destroy the unions that we belong to with pride- Melissa, as a member of NEA and Marla, a member of AFT. We have personal involvement in this case, enough that spurred us to spend a better part of our summer co-writing and submitting an Amicus Brief to be read by the Justices.  http://www.scotusblog.com/wp-content/uploads/2015/11/14-915_bsac_Brittany_Alexander.pdf

The date was January 11th; the court case was Friedrichs vs. CTA.

As we stood on the sidewalk, we watched the demonstrators line up.  By the end of the morning, the “I stand with Rebecca” crowd numbered about 50 supporters, the union side about 500.  We stood in line for about 3 ½. At approximately 10:05 we were let into the Court to witness the entire oral argument.

We were overwhelmed

We were to be witnesses to history

Would it be the history that saves our unions?

or

Would it be the history that destroys our unions?

Here are our thoughts as we listened from the eyes and ears of two teachers.

Here is the full transcript of the oral arguments.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-915_e2p3.pdf

In this piece, we would like to share what we thought were some of the most poignant moments of this case. At the core of this case is the overturning of the four-decade-old case of Abood. Abood is the Supreme Court case that protects agency shop fees and thus holds up the ideals of “collective” bargaining.   We would also like to address some of the comments that the Justices, Mr. Carvin, and the Union side made.  Our observations, once again would come from the experience, and lens, of working teachers who have had unions working for them.

Breyer, Kagan, Sotomayor, and Ginsberg Weigh In

Justice Breyer was perhaps the strongest ally on the court for the unions.  He made some adamant points and arguments for collective bargaining, unionism, and upholding Abood.  Perhaps the most powerful statement he made was making clear that the Supreme Court is charged with providing stability to the nation and that indeed, overturning Abood could cause immense instability because it will undo other cases that used the Abood framework.  Breyer hammered home his understanding that the state of California wanted a coherent group of people to bargain worker conditions.  Breyer went further to explain to Carvin that asking the court to undo something that has worked reasonably well is problematic.  To counter Carvin’s argument that Friedrichs is seeking to protect their right to free speech, Breyer countered that there are plenty of cases where the court has denied individual rights for the betterment of society.   Breyer also argued that such Supreme Court rulings like Plessy v. Ferguson (which established separate but equal) needed to be overturned because they were inherently unequal. The argument to overturn Abood does not fit this framework, Breyer noted.  Breyer’s strong statement to Carvin that people will spend money on things that will eventually go to the government, and, in turn, the government will spend it on things they don’t agree with. Breyer did not see anything basic in the lines that Friedrichs was drawing to this point.

Justice Kagan also had some powerful statements that supported Abood and union rights. Kagan first argued that when the government acts as the employer, it should have the same rights that private employers have, which include the ability to collect agency fees from unionized workers.  She noted, correctly, that unions need money to operate.  Kagan pounded the idea that Abood has protected millions of workers in America and if overturned could, in essence, reverse many decisions that have protected workers. In fact, Kagan noted that Harris and Knox, two recent court cases, showed that the court did not want to overturn Abood.

Justice Ginsburg, although she did not speak much, made several influential connections.  She quickly pointed out that Carvin (the Friedrichs lawyer) felt it was fine for the private sector to collect agency fees but not for the public sector.  Her statement drives to the point of the hypocrisy of the Friedrich case.  It is acceptable to collect agency fees in the private sector, and perhaps as Friedrichs argues, impinge on their first amendment rights, but not on the side of the public sector.

Finally, Justice Sotomayer surgically dissected the need for labor unions and the strength of Abood.  She made a powerful statement that the unions cannot negotiate what the state does not bring to the table.  The state can tell the union, “this is not negotiable” when it comes to negotiating things like merit pay or teacher tenure.  She also questioned Mr. Carvin, the lawyer for Friedrichs side, when he made a statement about fire unions in California who use union dues to subsidize safety equipment that the state cannot afford.  Carvin tells Sotomayer that you don’t have to subsidize safety equipment if you don’t want to.  Sotomayer asked, why would you do that if it was going to benefit YOU?

Time to Hear from Roberts, Kennedy, Alito, and Scalia

Some of the Justices on the court seemed out of touch with the trappings of the everyday life of teachers and what unionism does for our workplace, which in the long run influences children.

Chief Justice Roberts, in particular, seemed to examine the issue of free riders as just black or white.  Robert’s opening statement was that the things that unions bargain for are political. Our argument, as two teachers sitting in the audience, would be that they are not political, they are being twisted in a way by politicians and think tanks to make them so, especially in this time of corporate education reform.   Things like small class size, a living wage, and job protections are things that are negotiated but are not political; they are things that make schools great for kids. Roberts felt that everything that is negotiated between the state and their unions is a matter of public policy, which is correct because schools are public institutions.  It stands to reason that public policy should be good for the public. Roberts felt that because schools get public money that everything done within the scope of collective bargaining is part of public policy.  We would say yes, and that leads us back to the question.  If unions are bargaining policies that are good for teachers, that turns around and makes schools strong places for kids.  Small class size, a bargained item, directly impacts children. Not as easily seen is the necessity of a living wage for the teachers. It is necessary to compensate teachers to retain and attract the best educators who, in turn, provide the best education to the students.  Merit pay could be bargained, but most teachers do not like the concept of merit pay because it causes competition among teachers, who should be working collaboratively.  Bargaining items that are perhaps part of public policy also have an impact on the children in our schools.  

Another point we would make is in democracy, not all views are represented, but the will of the majority is.  In a few statements Roberts made it clear that he felt the ideals of collective bargaining and unionism would survive if the court were to remove agency fee stipulations.  Roberts did say, and was correct in this statement, that free riders (those who do not pay union dues) are not paying for services that the union provides.  Free riders, Roberts notes, cause labor strife.  We acknowledge to Roberts that this is true.  In fact, when you have teachers who refuse to pay dues, get in trouble and need union services,  yet receive them because the union must represent all, other teachers get resentful of this! Unfortunately, Roberts continued to make the correlation that because schools are public institutions everything that they do is political and a matter of public policy.

Justice Kennedy had the most questions and critique for agency fees.  Most disturbing were his comments that “MANY” teachers disagree with the union on tenure, merit pay, and class size.  We were dumbfounded when Kennedy made this remark, and it is an example that he will use several times during oral arguments.  We can say with pretty strong certainty that MANY teachers agree with tenure, disagree with merit pay http://files.eric.ed.gov/fulltext/ED533331.pdf    and favor small class size.  Justice Kennedy continues by stating that teachers who do not agree with their unions on issues such as tenure, merit pay, and class size must still subsidize them.  What concerned us at this point was that union officers are elected in a democratic process because all teachers collectively decide that is what they want.  Once again, the will of the majority is represented.  Consequently, what we wanted to shout to Justice Kennedy was that our highest performing states are states in which teachers are unionized  http://inthesetimes.com/article/14160/how_teachers_unions_can_lead_the_way_to_better_schools  

Justice Kennedy, one would hope, should clearly understand that what teachers bargain at the state and local level are those things that influence their working conditions, and in return, a student’s learning condition.  When teachers bargain for small class size, that in turn helps children.  Small class size is proven to have better outcomes for children.  Teachers unions also bargain things like mandatory after-school extra help.  These things, we want Justice Kennedy to understand, are NOT political speech.  Justice Kennedy also highlighted the fact that unions pay for media and letter writing campaigns to preserve tenure and fight against merit pay as chargeable items.  We disagree with that.  Kennedy used a weak example that if “x” was forced to pay $500 to their union and their union advocates for things they don't believe in, then “x” would need to pay another $500 to be able to go out and advocate on their own.  For example, if Rebecca Friedrichs had to pay CTA $500 in union fees and CTA were to bargain for teacher tenure, and Rebecca doesn't believe in teacher tenure, she would have to pay $500 to go to her state Capitol and advocate against teacher tenure.  You see where we are going with this?  Justice Alito brought out at this point that according to California state statute that fees can be used to lobby for better hours or working conditions.  This comment was strange coming from the Justice, who fast-tracked this case to the Supreme Court and who seemed to think that better hours was something that is political!  

Justice Scalia had great questions about the survival of unions if agency fees were nixed.  Scalia wonders how initiating fair share STOPPED strikes in NYC transit and why do people think that unions would not survive without dues?  From a teacher’s standpoint, we were mouthing the answers to Justice Scalia in the audience.  To the first question, agency fees stopped strikes because workers “collectively” elect their representatives and those representatives bargain issues for them with employers.  The strength comes in the collectiveness - you now have workers represented by a single representative.  Teachers pay their representatives, who are in many cases trained, to negotiate working conditions.  So, what Justice Scalia must understand is that once you cut off the money, or reduce the money, it weakens the position of the union.  The job of being a union representative takes an immense amount of time to negotiate, train, and perhaps travel.  Many representatives are highly trained and paid. There will be no funds to train union representatives. Therefore, the desire for motivated people to do the job will decrease,  and eventually, the entire system would deteriorate.  We became most concerned when some of the justices, including Scalia, thought that pay was negotiated at the state level, and, therefore, making what unions do political.  What the justices should clearly understand is that salaries are mostly negotiated at the local level, not the state level.

Carvin Argues for Friedrichs

As two teachers who researched this case extensively and co-authored an Amicus Brief submitted to the Court, the points put before the court by Carvin were weak at best.  The side he was representing came to full light when he made the statement that union dues were being used to inflate the “union war chest” for politics.  The one thing that everyone seemed to forget about is that this was not about the adults (aka teachers), but about adults who teach our children.  With that in mind here are some of the points made by Carvin for Friedrichs.  The plaintiffs, Carvin argued, are forced to support viewpoints they do not agree with.  Specifically, a teacher’s right to tenure, merit pay, and excessing teachers based on seniority.  The plaintiffs, all public school teachers, do not support a teacher’s right to due process, they support merit pay, and they don’t think that seniority should be considered when districts lay off teachers. What Carvin and Friedrichs do not realize is that a majority of teachers support tenure, do not support merit pay, and support seniority during periods of excessing.   It seemed strange to us that on page 17 of the linked court transcript that Carvin said, “unions don’t allow agency fees for lobbying.”  Which is correct and the whole argument that the unions were trying to make clear.  Our dues are used to bargain the things we need for working conditions. Carvin further said that Abood denies the plaintiff their fundamental right to free speech.  Which in essence, it does not because according to Hudson, the plaintiffs can opt out of agency fees (which all of the plaintiffs, in this case, have done).  Ironically as well, Rebecca Friedrichs, as noted by CTA has said publicly that she is happy with the positions that the union is taking on pay.  We found out as well that another plaintiff, Peggy Searcy, has benefitted enormously in her retirement.  She is living off a pension negotiated by her union and between 2008 to 2013 she did not have to take furlough days bargained by her local union SASE.  

Carvin was wrong when he told the court that contracts would operate the same if Abood were overturned.  Perhaps they would operate the same the year after, but soon those contracts would weaken as people stopped paying the union to negotiate for them.  As General Dumont, the lawyer for the State of California said to the Justices, people are NOT going to pay for something they can get for free.  Carvin is also wrong when he insinuated that benefits would remain the same if Abood were overturned.  Once again as the funds diminish that should be going to pay for union negotiations, training, and personnel; benefits will inevitably change because unions will lose their power to represent the larger collective.  Perhaps the most ridiculous argument made by Carvin was that unions "lobby" for class size (and for the record both national and all state unions advocate for small class size - which is research proven to help kids) and the other side must subsidize their views.  As Justice Sotomayor said - why would you not want to subsidize something that was good for YOU?

CTA, The State of California, and Department of Justice Speak up for Unionism:  It was legally sound

The lawyers who were arguing the side for the Unions were Edward C. Dumont, Solicitor of California.  David C. Frederick on behalf of 22 Union Respondents, and Gen. Donald B. Verrilli, Jr. Solicitor General for the Department of Justice.

Mr. Dumont went up first and made some strong points despite a good grilling by Chief Justice Roberts, Alito, Kennedy, and Scalia.  Some of the strong points Mr. Dumont made were the fact that once the majority of teachers elect a representative that is the framework of democracy.  Union elections are democratic processes, and not everyone is going to be in agreement with everything the leadership does.   The union, Dumont argued, becomes the bargaining agent for the teachers of that state.  Teachers, Dumont continued, can choose to support that slate or another slate; unionism or not but this is the elected representative of that group of teachers.  Dumont further noted that the representative unit must have adequate and stable funding. Most folks, Dumont noted correctly, are not going to pay for a service that they can get for free!  Dumont made the point several times to the Justices that the State of California needs well-funded unions to manage the public workplace and to deal with one entity that represents a majority of the interests of their members.  

Mr. Frederick was up next for the respondents side.  He was powerful.  He began with the fact that undoing Abood would disrupt the labor management systems in this country.  He expanded on the fact that unions research and assist with budget issues which allow districts to run smoothly.  If Abood were undone, Frederick argues, the state would be forced to hear a cacophony of views if it would not be allowed to deal with one entity that workers have elected to represent them.  Perhaps the strongest argument that Frederick offers the justices is that Wisconsin has done away with agency fees for teachers but have kept them for police officers and firefighters.  Over the years as a result of losing the agency fees in Wisconsin, it has caused immense turmoil in schools and also exploitation of workers - the teachers.  http://www.csmonitor.com/USA/Education/2011/0916/Wisconsin-teachers-retire-in-droves-after-union-loss-in-bargaining-fight    Frederick noted that in California fire unions provide safety equipment and do safety training for their members.  As teachers, we know that our unions, using union dues money, provide training for teachers, buy equipment for their school districts, and also use the money to support community service activities.  Frederick, thankfully, set Justice Kennedy straight when Kennedy didn't understand that merit pay, classroom size, and “protecting underperforming teachers” were NOT workplace situations.  Frederick quickly reminded him that they are indeed workplace conditions.  Frederick further went on to state that members speech is not silenced when they are paying a fee so that an exclusive, trained representative can negotiate their health and welfare benefits, their mileage reimbursement, teacher transfer, when teachers must show up for work, duty breaks, or lunch breaks.  These are, Frederick noted, all mundane points but are indeed workplace conditions that unions bargain. Frederick firmly noted that merit pay (which Kennedy kept returning to as something Friedrichs does not agree with) is subject to collective bargaining but if a minority of teachers can convince the majority that this is a position that the teachers ought to take, then it would be so.  The fees, Frederick states, are used to help all workers.  Nothing in the agency fee process suppresses the ability of teachers to speak out publicly. We maintain that it supports that right. Frederick further impressed that in New York City, before agency fees, there were a large number of strikes.  When agency fees were initiated, the strikes stopped.  To this, sadly, Scalia boomed, “I don't understand that.”  Frederick quickly noted that workers do not go on strike because of the power of collectiveness.  To this Scalia stated that by forcing people to pay agency fees means that the union will prevail. Quietly we both whispered, "yes." Mr. Fredericks further notes, there is power in the collective voice.  It is our hope that Justice Scalia read our Amicus Brief where we outline how agency fees allow unions to be the single collective voice of the people.  As noted by Mr. Dumont, maybe some will not agree with positions, but the majority do.  It is the will of the majority that has created labor peace for the country and has been consistently held up by the court in Abood for over 40 years.

The last lawyer to speak on behalf of unions was Mr. Verrilli.  Verrilli summarized the three fundamental reasons why Abood should be upheld.  First, he argued, was that the court for over 40 years has upheld Abood as the law in the area of employment relations.  Verrilli also pointed out that the state acting as the employer should have the same rights as a private employer to manage its workforce.  Verrilli noted that in 20 states public employers have the same latitude as private employers to require agency fee requirements so that they can successfully manage their workplaces.  The reliance on collective bargaining, Verrilli argued, goes far deeper than those 20 states but that disrupting Abood will influence thousands of contracts that affect over 14 million working people in this country.  In those 20 states, Verrilli continued, the agency fee requirement has worked its way into the fabric of relationships between workers and their employers.  It has, as we know, allowed for labor peace to be maintained in this country.  The final point that Verrilli made was the fact that in these times of budgetary constraint employers (the state) are going to have to make employment decisions.  It is always good, Verrilli maintains, that the union representative sits down with the employer to help make those judgments, which are in turn, seen as fair by the workforce.  This collaboration prevents disruption because the union vouches for the employer when employment decisions need to be made.  Verrilli finally argues that agency fees help employers achieve their workplace goals and that the court, by upholding Abood, recognizes that public employers ought to have the same kind of choice to respond to workplace needs as private employers.

In the final argument of the day Mr. Carvin, the lawyer for Friedrichs, made a point to say that the respondents could NOT prove that if agency fees were eliminated unionism would fall.  As teachers, and as history has shown us, we disagree strongly with Mr. Carvin.  The point is that the ability to collectively bargain with a majority of worker voices allows for workplace conditions to be maintained.  That is the entire point in this matter. As well, when we maintain the working conditions of teachers, we also maintain the learning environment for children.  The other issue is the fact that Mr. Carvin maintains that 24 states prohibit agency fees, but when you look at those right to work states they have the highest rates of poverty and the largest amount of schools that struggle.  This is not a coincidence and as teachers we can emphatically affirm that not only will the union not survive due to a lack of funding but our children will suffer as a result.  There will be no strong union to negotiate not only workplace conditions for teachers but learning conditions for children.

Our Hopes for an Outcome

Our hopes, of course, are that the Court recognizes that Friedrichs and her pals are funded by entities that seek to destroy unionism in this country. We hope the Court realizes the necessity of upholding Abood to protect the middle class.  Failing to do so will lead to a widening of the opportunity and income gap in this country.  We hope that the court sees this clearly.  As noted above, the distinct function of teacher unions is to negotiate workplace conditions, not just for teachers, but as learning conditions for children. As we noted in our Amicus Brief, unions negotiate small class size, extra help for children after-school, writing curriculum, and professional development.  All of these things, negotiated by unions, assist the children in our schools.  Will the court see this?  We hope so.  The erosion of these protections has been detrimental to public education, a constitutional right, across the country. The Supreme Court needs to stand up and be the voices of those that have little or no voice.  As Justice Breyer noted, the Supreme Court is the stabling force in this nation, it is our hope that they will see Friedrichs for what it is, an attempt to further suppress the Middle Class and elevate the wealthy.