Geonetta & Frucht, LLP
By: Geonetta & Frucht, LLP

The California Teachers Association (CTA) pushed for the first law requiring free public schools in California, campaigned against child labor, and protested the internment of American citizens of Japanese origin during World War II. California public school teachers finally won the right to collective bargaining in 1975 when the CTA-sponsored Educational Employment Relations Act became the law in California. When you belong to a union like the CTA, the union negotiates with your employer to achieve a “collective bargaining agreement” which defines your wages, benefits, working conditions and your rights on the job for a certain period of time.

According to San Francisco employment rights attorney Kenneth Frucht, “In the 1977 Supreme Court decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court held that no one can be forced to join a public-sector union as a condition of employment, nor could anyone be forced to contribute to a union’s political speech or activities. However, the Court also unanimously upheld the right of public-sector unions to collect mandatory fees from all employees in a bargaining unit, whether or not they were members of the union.”

Attorney Frucht further explains that in the Abood case, “The decision was premised on making sure that all employees paid their ‘fair share’ or ‘agency’ fees to prevent nonunion members from ‘free riding’ off of the union’s bargaining efforts, without contributing to the union.  Opponents of Abood argued that the requirement that nonunion members pay money to the union violated their First Amendment rights and compelled political speech by forcing them to fund union political activities.”

In March of this year, the California Teachers Association again won a major victory for public employee unions when a deadlocked U.S. Supreme Court rejected an effort to end organized labor’s ability to collect dues from government workers who oppose paying fees to cover collective bargaining costs. In Friedrichs v. California Teachers Association, ten California teachers, and the Christian Educators Association International asked the Supreme Court to overturn the 39-year-old Abood decision. Instead, the Supreme Court rendered a 4-4 ruling that effectively upheld lower court decisions in favor of the CTA in the controversial case.

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According to San Francisco employment rights attorney Kenneth Frucht, efforts to overturn Abood “hit a major roadblock with the passing of Justice Antonin Scalia” in February. The attorney explains that “Friedrichs was an appeal from the 9th Circuit, which had upheld agency fees. At the January 11, 2016 oral argument, the 5-member conservative block on the Court appeared poised to overturn Abood, with Scalia equating the agency fees with compelled political speech, noting that ‘everything that is collectively bargained is within the political sphere, almost by definition.’”

“While the unions were bracing for a major defeat, Scalia passed away at a vacation lodge in Texas, which meant that the five-member conservative block was reduced to four. Under Supreme Court rules, the 4-4 vote on March 29, 2016 meant that the 9th Circuit ruling in Friedrichs upholding Abood was affirmed. Though the California Teachers Union prevailed, the case and the issues involved are not nearly resolved. On April 8, 2016, the Center for Individual Rights filed a Petition for Rehearing in the 9th Circuit. To date no action has been taken on the petition,” attorney Frucht said.


Center for Individual Rights President Terry Pell said, “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.” For now, collective bargaining and the fair share fees that make it possible have survived their most serious legal challenge in years, but public employee unions are certain to face additional challenges in the future. Supporters of the CTA’s position – like California’s Attorney General, Kamala Harris – were pleased with the result of the case but wary about further legal battles.

“By upholding current law, the Supreme Court rejected a political ploy by the wealthy corporate special interests backing this case to make it harder for working families and the middle class to come together, speak up for each other and get ahead,” said California Teachers Association President Eric Heins. “Now it’s time for senators to do their job and appoint a successor justice to the highest court in our land,” Heins added, acknowledging the political impact of the case.

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The ruling has already exacerbated this year’s political stalemate over Justice Scalia’s successor. President Obama has nominated federal appeals court Judge Merrick Garland to fill Scalia’s seat. Republicans are promising to block any nomination until after the presidential election.  Democrats argue that the Supreme Court needs its full panel of justices to conduct its business properly.

The legal dispute over public employee unions was precisely the kind of divisive case that can splinter the Supreme Court, especially given the court’s current composition of justices. By leaving the lower court rulings intact – rather than putting the case on pause until the next term – the justices established no overriding precedent, and they thus left the door open for future challenges to fair share fees and to public employee unions in general.

California Teachers

The CTA dispute emerged as public employee unions became the focus of criticism and political attacks in Wisconsin and in New Jersey. In recent years, conservative judges have not hesitated to express doubts publicly about allowing the states to mandate fee payments from non-consenting public employees who are not union members. California teachers who support their union have been genuinely concerned about this case and other legal challenges to public employee unions.


Underlying the CTA position is the presumption that society at large benefits substantially from fair share fees and the work of teachers’ unions. “I think that unions are incredibly important for public education,” said Lynne Formigli, a science teacher at Santa Clara’s Cabrillo Middle School. Opponents of that position believe the unions use fair share fees to advance the progressive political causes of organized labor, regardless of whether those paying the fees agree with those causes.

However, California teachers who do not belong to the California Teachers Association already get back about $350 to $400 of their yearly payments – the estimated amount that’s used for the union’s political activity. The additional loss to public employee unions in California and other states could be hundreds of millions of dollars a year if public employees who are not union members do not have to pay anything. Those dollars are a primary reason why twenty-one states and a number of labor unions expressed to the Supreme Court their support for the CTA’s position in Friedrichs.

Geonetta & Frucht, LLP
By: Geonetta & Frucht, LLP