A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell
2017-06-18 · Guest: Rebecca Friedrichs and Terry Pell (Teacher and President of the Center for Individual Rights) · 34:57
Challenging Compulsory Public Sector Union Dues
Bob Zadek interviews teacher Rebecca Friedrichs and her attorney Terry Pell regarding their landmark Supreme Court case challenging compulsory union dues in the public sector. They discuss how union seniority rules and collective bargaining positions often conflict with the personal values and professional standards of teachers, leading to a First Amendment challenge against compelled speech.
Topics: First Amendment, Free Speech, Public Sector Unions, Collective Bargaining, Tenure, Seniority Rules, Supreme Court, Friedrichs v. CTA, Abood v. Detroit Board of Education
Speakers: Bob Zadek — Host Rebecca Friedrichs — Teacher and Plaintiff Terry Pell — President of the Center for Individual Rights Caller (Nick) — Listener
The Death of Justice Scalia and the Friedrichs Case [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. The show of ideas, not attitude. Thanks so much for listening. 800-345-5639.
February 13th, 2016. A very important date in the lives of all Americans, if not every citizen on the planet. It was the day that Justice Scalia, a sitting justice on the US Supreme Court, died somewhat suddenly. And his death changed everything in America. I did a show on Scalia’s death right after he died, and I tried to explain and to summarize all the ways that our lives would be affected by his death and the resulting votes in the US Supreme Court.
One of the Americans, or the group of Americans, whose lives changed perhaps the most, is my guest this morning. This morning, I’m proud, I’m delighted, I’m happy to welcome to my show two guests. They’ll be on the phone at the same time. Rebecca Friedrichs. Rebecca Friedrichs is a teacher in California who brought a lawsuit in California asking the courts to not require her to contribute her own money in support of causes she didn’t agree with—specifically, the California Teachers Association. She was represented by Terry Pell. Terry is with the Center for Individual Rights. That case was argued before the US Supreme Court, and as you will hear, although it was expected that Rebecca would be victorious, when Scalia died, it changed everything. Rebecca has a compelling story. Terry is her lawyer, and both Rebecca and Terry will be on the show this morning. Rebecca and Terry, thanks so much for joining me this morning.
Rebecca Friedrichs: Well, thanks so much for having me.
Terry Pell: Great to be here.
Bob Zadek: Oh, thanks for joining me both. Okay, now, this story has a personal component, it has an important political component—political by that I mean the relationship of individuals and their relationship to our government—and it has a compelling legal story. Now Rebecca, there you were, you were a teacher for about 28-plus years in the California school system. Life is good, one would think. You’re a tenured teacher, you’re doing a great job. What happened one morning, and what was your thought process that made you decide you had to take the extraordinary step of suing the California Teachers Association? What relief were you seeking when you made that very important decision?
The Conflict of Values [03:54]
Rebecca Friedrichs: Well, Bob, throughout my teaching career, from day one, I have been very discouraged by the way the unions are not accountable to teachers. Their core values are in direct opposition to my core values and the core values of many of its forced members. The union’s core values impact every political decision and collective bargaining stance that they take. So no matter where my fees are directed, whether it’s toward their overt politics or toward collective bargaining, those fees are used to promote the union’s political agenda.
Bob Zadek: But a union, Rebecca, a union is a collection of members. And isn’t the union and isn’t its policy done or formed democratically? So you get your say, albeit one vote. So why is that something you disagree with? We’re citizens in America, and for many years, I don’t like what happens in government, but I’m stuck with it because I only am one vote.
Rebecca Friedrichs: Well, wouldn’t that be great if it was really that way? What happens in the union is people like myself are forced to fund collective bargaining positions with which we disagree, and they’re bargained by a union that, in my case, was voted in when I was a small child. So I have never even been given a vote on whether I want this union or not. In addition to that, the union says that it speaks on behalf of all teachers, but in reality, the union speaks on behalf of itself. We are not given a vote on all of the stances they take politically or through collective bargaining. And this is all because of this automatic dues-paying system.
Bob Zadek: Ah, I was getting to that, Rebecca. Now, you said you’re forced to support positions with your dollars that you don’t support politically. Now, tell us about that being forced to support with your dollars. Tell the audience exactly how it affects you economically and where does the compulsion come in?
Rebecca Friedrichs: Sure. Well, economically, someone like myself, who’s called a “fee payer”—
Bob Zadek: So you’re a fee payer, not a dues payer. That’s a distinction.
Rebecca Friedrichs: That’s exactly correct. So fee payers like myself, we’re paying about 70% of the dues, which in my case runs around $650 to $700 a year. You would think paying that kind of money, I would have a vote. But I do not. When you are a fee payer, you are not given a vote within collective bargaining, you cannot serve within leadership, you’re completely voiceless. They strip you of all your rights of membership. However, they take your money. So basically, they free-ride off of people like myself, do whatever they want with our money, and give us no vote.
The Straw That Broke the Camel’s Back [07:05]
Bob Zadek: So you woke up one morning—what was the—if you can remember, you were going along and you tolerated this for about 25 or so years. And then you woke up one morning and you said what? Enough is enough?
Rebecca Friedrichs: Yeah, I was not tolerating it at all for those first 25 years. I was actually trying to fight this. I even was a full union member for a full 14 years of my teaching career, and I even served within the union leadership. I was on our union executive board for three years, tried to make the voice of myself and my colleagues heard, and I kept bringing up these issues.
I’ll tell you, I think the straw that broke the camel’s back—I don’t know, there were so many—but I think the final straw was when we were trying to save the jobs of many outstanding teachers in our district. They were doing a great job, they deserved to stay, the families loved them, the kids loved them, and they were even bringing up test scores. But they were going to lose their jobs.
Bob Zadek: Is that because of the seniority rules?
Rebecca Friedrichs: Yes, because of “last in, first out,” which is a collectively bargained issue by the union with which I disagree. I think the best teachers should keep their jobs, not the ones who have been there the longest.
Bob Zadek: And “last in, first out” means strict seniority, irrespective of competence. If you’ve been there longer—if you’re incompetent but there longer than somebody who’s competent—then the competent, shorter-tenured teacher has to go first.
Rebecca Friedrichs: You stated that exactly right. So what happened in this situation? Here I was, a union leader, and I went in and said, “Look, we’re going to lose these great teachers in our district.” And I teach in a lower-income district; we need smaller class sizes, we need outstanding teachers. I said, “How about if we as teachers take a small pay cut?” Because, you know, the economy had crashed, there really wasn’t any extra money. So I said, “How about we as teachers take a small pay cut? I’ve been talking to teachers on my campus, they’re supportive of this idea. Let’s vote. Let’s take a small pay cut to save all these jobs.”
The union not only would not listen to me, they would not consider this, they would not allow a survey. I said, “Please, if we just do a survey, if 51% of the teachers say no, I’ll back off. But please, let’s just ask all the teachers.” They would not allow that survey. And do you know, they said to me, “Look, Rebecca, don’t worry about those teachers. The union’s going to protect them. We’re going to take care of them. We’re going to offer them a seminar on how to get unemployment benefits.”
Bob Zadek: Oh my god.
Rebecca Friedrichs: Yeah. So for $1,000 a year, these teachers were given unemployment. And we could have saved their jobs quite easily, and many boots-on-the-ground teachers wanted to save their jobs, but our voices were stifled by the union we are forced to fund.
The Legal Challenge: Compelled Speech [10:04]
Bob Zadek: And then you found your way to Terry at the Center for Individual Rights.
Rebecca Friedrichs: Yes, that was a blessed day when I found Terry.
Bob Zadek: And Terry, tell us—now Terry, you are president of the Center for Individual Rights. You have a PhD from Notre Dame. You have worked in private practice. Tell us about the Center for Individual Rights and when you heard Rebecca’s story, how did you process that and how did you convert Rebecca’s complaints into a cause of action against the teachers union?
Terry Pell: Well, our firm has over the 20 years of our existence emphasized the defense of free speech, the free speech rights of individuals, particularly individuals who the government decides have to be silenced or pushed aside because they’re not expressing a politically correct or politically favored point of view.
Bob Zadek: But Rebecca had all—there was nothing stopping Rebecca from saying anything.
Terry Pell: That’s exactly right. But nevertheless, the compulsory dues are a free speech issue because what the state is doing is forcing teachers to support the union with which they might fundamentally disagree. When they pay their agency fees, when they pay their dues, they’re paying an organization to speak on their behalf, to lobby on their behalf, and to bargain on their behalf. And under the law, that’s considered compelled speech. That’s where the state is forcing people to support an organization to speak on their behalf, even if they fundamentally disagree with that organization.
Bob Zadek: Now Terry, in our country, one can divide the 50 states into right-to-work states and non-right-to-work states, with the distinction being that in right-to-work states, you can’t be compelled to join a union if you have employment with a company. So is this a variation—how does your issue in this case compare with the issue of right-to-work?
Terry Pell: Well, there are 23 states that have compulsory dues laws. The rest of the states are considered right-to-work states. But that’s the result of a decision by the state legislatures in those states. And in our view, this isn’t an issue that can or should appropriately be decided by state legislatures. We believe that the US Constitution, in particular the First Amendment, prohibits the state from enacting compulsory dues laws. So we don’t see this as an issue that the majority gets to decide through its elected representatives; we see this as an issue that the Supreme Court needs to decide for the country as a whole. There shouldn’t be right-to-work and non-right-to-work states. The fact is no state is permitted under the Constitution to compel public employees to support a union with which they fundamentally disagree. So that’s why we believe this issue should be settled by the court and not by 50 different state legislatures.
Fast-Tracking to the Supreme Court [13:25]
Bob Zadek: Now Terry, get us into the conference room of your law firm. You hear Rebecca’s story, and what were the challenges you saw in bringing this First Amendment case? What did you have to overcome, and what was your plan on how to do it?
Terry Pell: Well, our biggest problem in bringing any kind of a case like this is finding clients who want to be part of a high-profile lawsuit that may go to the Supreme Court. Not everybody wants that. And we were stunned and surprised when we discovered in the state of California that many, many teachers were looking for just such a lawsuit. There’s a lot of unhappiness in California about compulsory union dues. And so we set about—we couldn’t have known that ahead of time—we set about trying to find clients. And within several months, we had 10 to 15 individuals that were interested and willing to be clients in the case. So that was the first challenge, and in many cases the biggest challenge.
In this case, we were lucky to get clients right away. The next big challenge is getting this case filed in court and up to the Supreme Court. Normally it takes five to seven years from the time you file a case before it gets to the Supreme Court. In our view, though, this is an issue that only the Supreme Court could decide. And so we persuaded the District Court and the Ninth Circuit Court of Appeals to pass the case on as quickly as possible to the Supreme Court so that the rights of our clients could be adjudicated by the Supreme Court as quickly as possible.
And we were successful. We basically went to the District Court and the Ninth Circuit Court of Appeals and said there’s nothing for you to decide. The Supreme Court has previously ruled that compulsory dues are constitutional.
Bob Zadek: And that was the Abood case in ‘77, I think.
Terry Pell: That’s exactly right. And so we said, “Look, we have to get this case to the Supreme Court because the Supreme Court is the only court that has the authority to overrule its own past precedents.” And both the District Court and the Ninth Circuit Court of Appeals agreed with us. They said, “Really, this case isn’t for a lower court to decide; only the Supreme Court could decide it.” So they effectively decided the case against us, which is what we asked them to do, so that we could get to the Supreme Court for a prompt hearing on the merits. And that’s what we had last January.
The Political Nature of Collective Bargaining [16:09]
Bob Zadek: So here you are, you do all of this work, you have an appealing story with appealing plaintiffs. In your mind, this is the perfect case, the perfect time, and you have a chance to overturn a prior Supreme Court precedent. You were not trying to make law; you were trying to do something even more challenging, which is get the Supreme Court to reverse itself on a prior decision, which is more challenging than trying to establish a new principle.
Terry Pell: That’s exactly right. We knew, though, that the Supreme Court would be receptive to the Friedrichs case because in several decisions in recent years, a majority of the court itself has expressed doubt that Abood, the 1977 decision that you mentioned a moment ago, continued to be good law. And so we had a majority of the justices on record saying, “This is an area of the law that needs to be revisited. We need to take another look at this.” And so that’s one of the reasons we were encouraged to bring the case against the California Teachers Association and try to get it to the Supreme Court as fast as we could.
We thought we had good prospects, and we were very pleased during oral argument in January when it did appear that a majority of justices agreed with us. They agreed that it’s not the teachers who are free-riding on the union; it’s the union that’s free-riding on the teachers, collecting money from people who disagree with it and spending it for purposes with which those individuals do not agree and do not support.
Bob Zadek: Now what about the argument, Terry, what about the argument the unions make? The unions said, “No, that’s not quite true. Rebecca is only paying agency fees, not dues, and she is paying less than a dues payer. And the difference is we don’t charge her for the purely political positions we take. We do very careful accounting, and we only pay her for the workplace issues of working conditions, salary, and benefits.” So she’s the free rider, or she’s not paying for the political process—that’s the 30% she doesn’t pay.
Terry Pell: Well, that was a key argument in our case. In our view, the collective bargaining positions the union takes are every bit as political as its overt lobbying. I mean, take for example the issue of salary. The union constantly ratchets up and negotiates for higher salaries for teachers. Well, sometimes that’s good, and many teachers support that. But in California, certain localities are going bankrupt because of the high cost of public employee salaries as the result of public employee union bargaining. So a teacher in a district that’s economically depressed might not agree with the union’s desire to constantly raise salaries, especially during a time of economic contraction when many of the parents of the students are either out of work or working part-time.
So that’s an example of an issue that the union likes to present as just a straightforward issue of economic interest that benefits all teachers and therefore all teachers should pay for the union’s bargaining, when in fact it’s an issue that a lot of teachers disagree with the union on. They don’t think that higher salaries are the best course of action. They would prefer to keep salaries a little bit lower and have more teachers, with the result that class sizes can be smaller. That’s a perfectly reasonable position, and a teacher who has that position should not be forced to pay dues to an organization that’s essentially fighting against what they take to be the best course of action for their school district.
So in our view, the case of Friedrichs v. California Teachers doesn’t have automatic applicability to the private sector. It’s a case which is special to public employee unions. Is that so?
Terry Pell: That’s exactly right. The First Amendment governs the state, and it’s the state law that requires public employees to join a union as a condition of employment that we’re challenging. If we win our case, it has very little, if almost no relevance to the private sector. This just applies to public employee unions.
Bob Zadek: So this was not a case that was brought with the purpose of destroying or even harming unions. It was a case which was brought to adjust the power of the unions to deny free speech to its members and to its agency payers, and place that free speech back with the individual. This was not a union-busting case as such; it was a pure First Amendment declaration of independence, a First Amendment to the Constitution free speech case, not an anti-union case. And that’s very important for our listeners to understand.
Terry Pell: That’s exactly right. If we win our case, every teacher in California and elsewhere will have the right to decide for themselves whether to join the union. Many teachers like their union; they’ll continue to be members. And the outcome in our case protects their right to decide to be members. But it also protects the right of a minority of teachers to decide not to be members or agency fee payers or have anything to do with the union. Right now, about 10% of the teachers in California are agency fee payers, which they’re allowed to be. They’ve opted out of the political portion of the dues. And that’s a good guess of the number of teachers that, if we win our case, will decide not to join the union at all. So we’re really talking about the right of 10% of the teachers to decide on their own as individuals not to join the union because they don’t support the union. That’s what our case is about.
The Culture of Fear and Misinformation [22:37]
Bob Zadek: I’m surprised—we’re going to go to break in a second, Terry and Rebecca—I’m surprised, and maybe this question is to Rebecca. I’m surprised that Terry’s estimate is only 10%. I would have thought that a much higher percentage of teachers, whether they agree with the union or not, would want to have the right to speak for themselves. So why are only 10% of your colleagues protective of their free speech rights, Rebecca? And we have two minutes till break.
Rebecca Friedrichs: Yeah. Well, there’s a couple of answers to that question. Right now, you know, it’s not a very popular stance to be a fee payer. You are shunned and you are bullied if you dare to become a fee payer. Because you’re not paying those overt politics, you are going to be picked on by union leadership within your district.
Bob Zadek: But what about the members? Why do the members denigrate their own free speech rights? And Rebecca, we may have to finish this—in fact, let me go to break now, and we can finish this answer after the break, Rebecca, because it might—I don’t want to cut you short. It’s an important question and an important answer. This is Bob Zadek. I’m speaking with Rebecca Friedrichs. She is plaintiff in a US Supreme Court case, Friedrichs v. California Teachers Association. She is joined on the air with her lawyer, Terry Pell. Terry is with the Center for Individual Rights. This was a case that, as you will learn, was profoundly affected by the premature, by the early, unfortunate death of Justice Scalia. More about this case, what it means to unions and union membership in the public sector in America, when we come back. 800-345-5639. All calls are welcome.
[Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. Now and always, the show of ideas, not attitude. Thanks so much for listening. This morning I’m speaking with Rebecca Friedrichs. Rebecca is the plaintiff in a US Supreme Court case captioned Friedrichs v. California Teachers Association. She has sued the California Teachers Association with the aid of her counsel, Terry Pell, at the Center for Individual Rights. They are seeking to re-establish the free speech rights of public employee union members so they not be compelled to support speech they do not approve of. 800-345-5639 to join my conversation.
Before the break, I had asked Rebecca—I learned from Terry that in his estimate, about 10% of the teachers in the teachers union are agency fee payers rather than dues payers, which means that only 10% of the teachers really care about preserving their individual free speech rights. That seemed unusually low to me. I would think a higher percentage of teachers would, irrespective of the specific position, they would simply want to preserve to themselves their own free speech rights. So Rebecca, why do not teachers value their First Amendment free speech rights?
Rebecca Friedrichs: Well, I think teachers do value their First Amendment free speech rights. However, the unions control teachers with fear and a lot of misinformation. What a lot of people don’t realize is the unions have monopoly control. So let’s say we wanted to have a second union. Our union wasn’t doing a great job and we wanted to bring in a different one. We can’t do that. They have total monopoly control. They have monopoly control over teacher email and teacher mailboxes, physical mailboxes.
Bob Zadek: Oh my goodness.
Rebecca Friedrichs: Yeah. So because of that, teachers are only hearing one side of the story. Unless you’re like me and you’re just really someone who’s passionate on these issues, you really haven’t heard both sides. So what the union does is they really hold teachers under this culture of fear. Many teachers are fearful that if they opt out, oh, they’re suddenly going to get fired, they’re going to lose their job, they’re going to be picked on by some unscrupulous administrator. And so they’re just running afraid, full of mistrust and fear. The unions are very good at dividing, so they create this culture of division between teachers and administration, teachers and administration and parents. There’s all this division going on. So teachers are just afraid, and that’s why, in my opinion, why more of them aren’t opting out.
Seniority vs. Meritocracy [27:52]
Bob Zadek: Now, Terry and Rebecca, we have a caller. We have Nick on the line this morning. Nick, welcome to the show this morning. How are you?
Caller (Nick): Hello?
Bob Zadek: Yeah, we can hear you, Nick. What’s on your mind this morning?
Caller (Nick): Oh, sorry about that, I apologize. So my first question is this: this happened to my sister. They forced her out of the school system essentially into another career, which I see as a huge executive waste. What is being done about the teachers who essentially hold slots and bring no real value to the environment in terms of inspiration and in terms of working with our children, our greatest commodity? That’s my first question.
My second one is this: this happened to five of my friends. We were all scientists in biotech. We got lucky and had some stock options, and we were all going back in to try to teach with our real experience, for real application, to set up a roadmap to get kids into science and the biotech sector. The union came back and said no, and hired five teachers from Poland through the State Department that never taught in America, had no experience. And I don’t want to honk my own horn, but I’m sure it happens to other people where we have qualified people who want to return to teaching with real industry experience and a passion to help people, but are shut down just because they take up a slot.
Bob Zadek: So Rebecca, Nick’s question is there seems to be a disconnect between the goal, which you would think is the goal of everybody, of hiring the most qualified candidate for a job, whether it’s public sector, private sector, union or non-union. So what’s the disconnect in the public sector where that is not the primary goal of simply hiring the best—old, young, wherever they come from—why isn’t it a meritocracy in the teaching system?
Rebecca Friedrichs: Yeah, I’m—thank you so much for the question, Nick, and I’m grateful to you for repeating it. I was having a very hard time hearing him. I’m going to answer this in the best I can in two ways. Number one, I mentioned earlier that the unions are not accountable to teachers. I agree 100% with your caller. We should be hiring whoever is best for those kids. Who is going to bring across the information in the most passionate and effective manner? How are we going to educate America’s children? We need to do what’s right for America’s children. We are public servants, number one, and we need to bring in the best public servants we can find, no matter where they’re coming from within our culture.
So here’s where I disconnect with my union in a big way. I see myself as a public servant. They approach collective bargaining as if I’m entitled to a whole bunch of stuff. And they continue to claim that we’re doing what’s right for the children, but they continue to make decisions that are not right for the children.
So the second way I’m going to answer this, I hope this helps, is the tenure problem. One of the things that the union fought for to get a law for was tenure. So tenure’s a law now. But what the unions do is they use the collective bargaining money that they take from people like me, and they push for these collectively bargained grievance procedures. So what happens is they use tenure laws that they pushed for, and then they use these grievance procedures. They take these things together—I call it the one-two punch—and they make it almost impossible for administrators to do what’s right for students and the taxpayers.
So if an administrator has an underperforming teacher or even a teacher that’s abusive—I have seen with my own eyes abusive teachers who were not fired—and it’s because these administrators try to discipline these teachers, but when they do this, they run headlong into the union-engineered grievance procedures. And the net result is that the unions, because of their laws and collective bargaining practices, have completely tied the hands of taxpayers, tied the hands of administrators, tied the hands of all of us to make decisions that are right for children, that are right for this country, that are right for taxpayers. And in my view, this is not moral. And this is really the basis of why I believe I should not have to fund collective bargaining stances that are against my own moral code.
The Supreme Court Oral Arguments [32:37]
Bob Zadek: And to our listeners out there and our friends, you are listening to the passion and the commitment of Rebecca Friedrichs, a very brave teacher who is the plaintiff in this lawsuit. So what we have is we have a committed individual who all she wants is the right not to have to support political—what amounts to political positions that she doesn’t want to have to support with money—political positions that she opposes. And her lawyer, Terry Pell, is the one who is helping her realize her fervent wish of simply preserving her free speech rights.
Now Terry, you had an accelerated process at the trial court and the appellate court at the Ninth Circuit, and you get to the Supreme Court in January. Tell us about the oral argument. What was the reception of the justices? What was the questioning like? And what did you say to Rebecca when you walked out of the courtroom at the US Supreme Court?
Terry Pell: Well, the oral argument went quite well. I mean, much better than I think we had a right to expect. The bench was very “hot,” which means they knew the issue, they were on top of it, and they had tough questions for both sides. But I would have to say over the balance of the argument, the unions were very much on defense. At least five justices came ready, primed to press the union on a number of claims it made, and the union was forced to concede a lot of things. So when we walked out—
Bob Zadek: Terry, what was some of—this is sort of inside the Beltway, but it’s fascinating to myself and I have a very engaged audience, and I’m sure fascinating to them as well. What was some of the hard questions, if you can recall, that the union had to deal with, and what were some of the toughest questions you had to deal with?
Terry Pell: Well, let me start with the tough questions we had to deal with. The liberal justices were very concerned about—
[End of Clip]