consultants are sandburs

Sunday, January 24, 2016

Friedrichs v. California Teachers Assn. [YET MORE]

I run this blog and make whatever decisions about it I like, and while the below text was submitted to me as a comment to this post, my belief is readers are well served by converting it to a guest report, analysis, and editorial. With an online link to the Abood case added now and the Google Scholar search link, for "how cited," etc. also added as a convenience to readers, and then with only a change or two (italicizing Abood and Harris which is lost in plaintext comment submission, and adding the bracketed aside) modifying context to fit a guest posting format - it is entirely as submitted, by Wes Volkenant; and in submitting it his wrap up reminder was:

I did write about this on January 11th in the Issues section of my own campaign website (currently, as of 1/24, it's the 3rd item down on the Issues page):

Without further ado, the guest editorial with which I concur and with which I urge readers to concur:

As a Hennepin County employee, in a job classification that chose to be part of the union, as a long-time union member and activist, and a recently-retired messenger for the Union, through my years editing and producing the AFSCME Local 34 monthly newsletter, this Court case is very familiar to me and other union activists. We're very troubled by the likely ruling in favor of Friedrichs on her 1st Amendment grounds, overturning nearly 40 years of case law in Abood. The Abood decision basically affirmed that if the union has to represent you - which is does - and provide you with grievance representation, even if you choose not to pay full dues as a union member - which we do, and will have to do - you have to pay the union a fair share fee (about 85% of dues to cover union administrative costs, any wages its officers and stewards earn doing the work of the union, and costs associated with the higher levels of the union's organizational units). Basically Abood said you have to pay because you can't ["shouldn't" being perhaps a more fitting word here given this current Court's predilections] get something for nothing.

Of course, this case turns it around, suggesting that since we work for the government, every choice made in negotiations is political, so now it's all political speech - which of course it isn't, because it's an employer and its employees - and then those disagreeing employees are having their 1st Amendment freedoms taken away by the "government" - their employer - by forcing them to pay the union - made up of their work colleagues of course - these fees.

So in this convoluted way, public employee relationships with their bosses will be treated differently than private union employees working for their bosses. Unions protect employees from employer abuses, criticisms, disciplinary actions and terminations. Both private sector and public sector unions.

Of course the whole thing really is about politics. Public employee unions want good bosses, which usually means getting people elected who will help the employees work in good, safe, rewarding work environments. Compare working in Ramsey, Washington, Dakota, Scott and Hennepin Counties to non-union Anoka County. Huge differences in working in the first five to working in Anoka. But, because most Republicans are inclined to either reduce employee wages or basically tread water, and because most Republicans see government as the bad guy and want to reduce it - costing employees their jobs, few Republicans get these unions to support them. It shouldn't surprise that it's not in our interest to see most Republicans elected to positions affecting government employees. But it also makes our unions a target for Republicans to take down. Long-time Republican activist Sam Alito - now Justice Alito - is one of those anti-union Republicans, and helped put this case in motion with his ruling in the Harris case in the recent past. Next year, he'll have another one against the California Teachers that goes beyond attacking our ability to collect fair share fees - this one could find public employee unions lacking the right to exist or could lop off the ability to have the employer take dues out of paychecks, forcing the union - composed not of paid union people, but fellow 40-hour a week workers - to have to collect dues from each member on a one-to-one basis, off-the-clock and outside of the workplace (which in today's mobile society with flexible work schedules, will prove next to impossible and ultimately crippling, for the unions).

Unfamiliarity with the issues leads to speculation the Harris case Wes referenced is this online Google Scholar item, as identified by websearch, here; Alito authored and citing Abood; and Wes can correct things if that guess is wrong.

While I am not fully informed of "non-union Anoka County" differences from other counties indicated by Wes as unionized, I can imagine things; and I invite comments from any reader, anonymity being understood as perhaps needed under circumstances of employer-employee tensions; and that invitation extends, in particular, to my good friends on the County Board, again in particular, my own Board District 1 rep.

Yo, Matt, are you there? Any thoughts to share?


Wes has graciously revised and extended his remarks

A little more on the 2014 Harris v. Quinn case... here's a link to the highly respected Court analyst Lyle Denniston at ScotusBlog:

A couple of key excerpts: "What the Court did do specifically was to draw a legal distinction for now between state and local employees that it will consider to be “full-fledged” public workers and workers who will be treated as something less than that — “partial public employees,” such as the workers in this case — for purposes of union organization. The workers in this case are home health care workers who look after a patient or two in the privacy of a household.

Illinois state officials mandated that those workers, who mainly answer to the patients for whom they work, nevertheless must provide dues to support a labor union that will represent their job interests before state agencies. Ruling against that requirement, the Court said the home health care workers are protected by their First Amendment rights from having to put up money to support a labor organization they do not want to join."


"He stopped short of the ultimate conclusion that Abood could no longer stand, however. While that ruling has many flaws, Justice Alito wrote, the Court could stop at this point by refusing to extend it to “partial public employees.”

The 1977 precedent, confined to public employees, does have “clear boundaries,” the opinion said, but it refused to extend those boundaries to require fee-paying by “partial public employees.” One of the risks of doing so, Justice Alito added, is that almost any group of workers who receive payments from a governmental agency “for some sort of service” could be put under the Abood union support requirement. “It would be hard to see just where to draw the line,” the opinion concluded.

Although dues-paying requirements for non-members of a union in a unionized workforce are also common in the private sector, the Alito opinion sought to draw important distinctions between the nature of employment in the public sector as opposed to private industry.

Public employees do not have to worry, the opinion said, about pushing up prices by their demands for wages and other benefits because they work for the government. Moreover, it added, most of the pulling-and-hauling of bargaining over public employees is a part of the political process."

And, here's one advocate piece on the ruling that appeared in Mother Jones in June, 2014:

Summary excerpt from that article:

"In the case Harris v. Quinn, the court's five conservative justices ruled that home-care workers in Illinois—such as the lead plaintiff, Pam Harris—cannot be forced to pay dues to a union if they're not union members because they are not full-fledged public employees like cops, firefighters, and teachers.

But there's good news for organized labor: The court did not deliver the killer blow to public-employee unions as some warned it might. The court declined to overturn the 1977 decision in Abood v. Detroit Board of Education, the opinion that upheld the model of public-employee unionism. Had the court tossed out Abood, it would've essentially made right-to-work—one of the conservative movement's favorite anti-union policies—the law of the land and dramatically damaged the ability of unions such as SEIU, AFSCME, and others that represent public workers to collect dues and engage in political and issue advocacy."

This should help give context on the one-two punch that Harris - and now potentially, Friedrichs are delivering against public employee unions.

Crabgrass opinion is Alito is a hack, Roberts an unprincipled scoundrel. Opinions can differ. Iincluding reversal of labels.

In terms of usurpation of the legislative function, I envision MnDOT engineers, this bunch, designing and specifying concrete and rebar needs, not political, this bunch, laying out a route and interchange dimensions, clearly political; etc., these are judges, not legislators, AND THEY SHOULD KNOW THEIR OWN CONSTITUTIONAL LIMITS. Separation of powers is not rocket science. The Alito and Roberts hangers-on in making a majority can even understand Separation principles. Now if they would only honor them . . .

In the spirit of Franklin Roosevelt, is it time to propose packing the Court? Wikipedia: Judicial Procedures Reform Bill of 1937. Free Dictionary: Footnote 4, Carolene Products. Ecclesiastes 1:9

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