The theory of the Friedrichs case is that requiring the plaintiffs to pay fair share fees imposes a “severe and ongoing infringement” of their rights to free speech. Their Complaint asserts that each plaintiff “objects to many of the unions’ public policy positions, including positions taken in collective bargaining.” The fair share fees that are at issue in the case do not go to fund the unions’ public policy initiatives. Instead, they only fund activities that are germane to collective bargaining. And because of the way the case has been litigated, the plaintiffs have not identified which specific provisions in their collective bargaining agreements they oppose.
In their Supreme Court brief, the Friedrichs plaintiffs argue that wages and benefits for teachers can be controversial, and they assert that collective bargaining involves matters relating to education policy, but they never assert that they personally oppose their union on any issues addressed by their own collective bargaining agreements. While the brief is full of generalized assertions about collective bargaining agreements, it never addresses any of the specific collective bargaining agreements that apply to the plaintiffs. As far as I can tell, the only collective bargaining agreement in the record is the agreement covering teachers in the San Luis Obispo County school district — an agreement that applies to only one of the ten individual plaintiffs. And, while Friedrichs’ brief asserts that seniority preferences for assigning teachers may have a detrimental effect on education policy, the brief does not acknowledge that in San Luis Obispo, seniority is only the deciding factor in filling vacancies after consideration of each applicant’s credentials, training and experience, commitment, and performance assessments.
While the right often speaks with contempt about trial lawyers, the brief filed by the Friedrichs plaintiffs makes you realize how much this case has been driven by lawyers instead of teachers. The brief quotes former Los Angeles Mayor Richard Riordan complaining that “all that makes urban life rewarding and uplifting is under increasing pressure, in large part because of unaffordable public employee pension and health care costs.” Leaving aside that in California, pension benefits for teachers are not subject to collective bargaining, none of the Friedrichs plaintiffs have asserted that their own health benefits are too generous. The brief states that class size is “a hotly debated policy issue,” but I’ve never heard a teacher complain about not being allowed to teach larger classes. The brief similarly refers to criticism of salary scales that reward teachers based on longevity, but the Friedrichs plaintiffs are long-term teachers who benefit from a compensation system that provides higher salaries to more experienced teachers.
The San Luis Obispo teachers’ contract provides that all teachers are entitled to a duty free lunch period of at least 30 minutes. It’s possible that some teachers wish they had to work through lunch, but it seems unlikely. The collective bargaining agreement also provides for various forms of paid and unpaid leave. The agreement also provides that teachers will be paid if they are called for jury duty. Other topics covered by the collective bargaining agreement include the procedures to be followed for teacher evaluations, a peer assistance program to provide struggling teachers with support from their colleagues, the establishment of a safety committee, and a grievance procedure. The extent to which the Friedrichs plaintiffs object to the specific provisions in their collective bargaining agreements matters because it goes to the question of whether any payments to fund collective bargaining activities really constitute the “severe” infringement on their free speech rights that they allege. The Court must assess the extent of the infringement in order to balance the interests of the Friedrichs plaintiffs against the interests of the State of California in maintaining the fair share requirement. The unwillingness of the Friedrichs plaintiffs to identify the specific collective bargaining activities that they find objectionable is at odds with the heated rhetoric in their lawyers’ Supreme Court brief. While their lawyers assert that the Friedrichs plaintiffs are being forced to contribute money “for the propagation of opinions which [they] disbelieve,” in fact, it appears that their agency fees are going to fund negotiation and enforcement of collective bargaining agreements that directly benefit them.