On November 30, the U.S. Supreme Court granted a request from the Obama Administration that U.S. Solicitor General Donald Verrilli be allowed to participate in the High Court oral arguments now scheduled for the morning of January 11, 2016.
The only case to be brought before the nine justices that day is Friedrichs v. California Teachers Association, a direct challenge to state statutes authorizing the termination of public employees for refusal to join or pay dues or fees to a union wielding monopoly-bargaining privileges in their workplace.
Not surprisingly, given the intense pro-Big Labor bias of President Obama, his administration has sided with top bosses of the Golden State subsidiary of the National Education Association (NEA) union and California Attorney General Kamala Harris (D) in urging the Supreme Court to uphold the permissibility of forced fees for teachers and other public employees under the First and Fourteenth Amendments.
On January 11, Verrilli will be given 10 minutes to make his case, while David Fredrick and Edward DuMont, respectively the counsels of record for the California Teachers Association (CTA/NEA) union and Harris, will be granted 15 minutes apiece. Michael Carvin of the Cleveland-based law firm Jones Day, the counsel of record for the Friedrichs plaintiffs, will have the 40 minutes allotted to his side all to himself.
In the merits friend-of-the-court brief he and his associates submitted on November 13, Verrilli previewed the claims he is likely to make at next month’s oral arguments. In writing, Verrilli emphasized the supposed benefits public employers derive from union monopoly bargaining, or, as he and his legal team put it at one point, from “allowing employees to express their views through a single, democratically selected representative . . . .” State laws such as California’s that prohibit managers of public agencies from directly dealing in any way with employees who dissent from the monopolistic union’s positions about workplace matters result in “more stable labor relations and a more satisfied and productive workforce,” Verilli et al insisted. (See the first link below to read the whole brief.)
As Carvin and his associates explained in the plaintiffs’ own merits brief, submitted just before Labor Day, and as attorneys for the National Right to Work Legal Defense Foundation also documented in a September brief, there are plenty of reasons to doubt that employee forced dues and fees are necessary to sustain a system of monopoly bargaining in the public sector.
But is monopolistic unionism really a “vital public interest,” or even an “adequate justification” for what the High Court has repeatedly admitted is “impinging” on public employees’ First Amendment rights? If one looks at how monopoly bargaining works in practice instead of accepting Verrilli’s glossy generalizations at face value, the answer is obviously “no” in both cases.
Since the passage of Act 10, its landmark labor-policy and budgetary reform, nearly five years ago, the state of Wisconsin has furnished multiple useful, albeit imperfect, examples of how the same school district operates with and without union monopoly bargaining.
The examples are imperfect because in the key area of salaries Act 10 did not eliminate monopoly bargaining, but instead only narrowed its scope. The examples are also imperfect because teacher union officials continue to wield a significant amount of political clout in the Badger State post-Act 10 (albeit not nearly as much as in the past). School boards have consequently not changed the way they manage teachers as much as they undoubtedly would have absent any fear of electoral retaliation.
Nevertheless, measures such as the reforms adopted by the Racine Unified School District last month (see the news story by Aaron Knapp available at the second link below for more information) illustrate the impact monopoly bargaining, euphemistically referred to by Verrilli et al as “collective bargaining,” had on Wisconsin school districts until recently.
As Knapp noted, district administrators favoring the changes believe they will “improve learning conditions for students and working conditions for employees” and also “find cost savings for the district.” He went on to explain the two reforms that K-12 employee union bigwigs had most strenuously decried:
One particularly controversial change will end a preference that senior employees currently have to fill open positions throughout the district and will allow principals to hire whichever candidate they choose regardless of seniority. Currently, the school principal must pick among the two most senior candidates who qualify, according to administrators.
Another divisive change will set a flat hourly wage for extra work by teachers that goes beyond their normal duties . . . . This would replace a system of giving pay for extra work based on a percentage of the teacher’s overall salary, meaning that veteran teachers make more for this work than their less-experienced colleagues.
Virtually no rational persons running a business or a government agency believe a “more productive” workforce will be achieved if they are restricted to two choices among current personnel to fill an open position, instead of being able to pick from all their qualified employees or even make an outside hire. And employees with less seniority are hardly likely to be “more satisfied” if they are denied any realistic opportunity to secure an open position that appeals to them simply because they haven’t been employed in the school district long enough.
But union officials in states like pre-Act 10 Wisconsin routinely get such “seniority preferences” written into government workplace contracts in order to cement their control over employees. In certain other Big Labor-dominated states, including California, Big Labor has successfully lobbied to get such preferences written into law, so school administrators’ hands are completely tied. It is very difficult to believe, as Verrilli would have the Supreme Court do, that legislators who have foisted the monopoly-bargaining system on school administrators over the years did so because they were interested in fostering “good labor relations.” Rather, the legislators knew that, in exchange for their granting special privileges to government union bosses, Big Labor would help them get elected and reelected.
Similarly, it is hard to see how it serves the interests of schoolchildren or taxpayers or most teachers for a district to have to pay a teacher with 30 years of seniority twice as much money to teach a summer school class as they would pay a teacher who is new to the district, but equally experienced to do the same thing. But in Wisconsin and many other states, public-sector monopoly bargaining makes it possible for union officials to keep such counterproductive policies entrenched for decades.
If one or more of the justices confront Verrilli with these or innumerable other similar examples available from media reports regarding how abominably government-sector monopoly bargaining works in practice, he may well admonish them that it is not the judiciary’s place to question the legislative judgment of elected officials in California or any other state.
Perhaps not. But in deciding how to rule in the Friedrichs case, the justices should be allowed to use their common sense and draw on nonpartisan media reports like the Aaron Knapp account quoted here to decide whether or not the Verrilli team’s characterization of how union monopoly bargaining works in the public sector is credible. And the fact is, it isn’t.
Brief amicus curiae of United States filed.
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