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Freedom Foundation Files Amicus Brief In Friedrichs Case

Freedom Foundation Files Amicus Brief In Friedrichs Case

September 10, 2015

If Supreme Court ruling goes against unions, we want to ensure they comply
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OLYMPIA, Wash. — The U.S. Supreme Court later this month will begin consideration of a case that has the potential to substantially diminish the influence of unions in the government workplace – not to mention alter the nation's political landscape.

And in anticipation of a favorable verdict for the plaintiffs, the Freedom Foundation is providing the justices with additional ammunition just in case the unions plan to drag their feet rather than comply.

On Friday, the Olympia-based free-market think tank is submitting an amicus curiae – or "friend of the court" – brief in support of California teacher Rebecca Friedrichs, who is suing the California Teachers Association over a state law that requires her to pay dues or representation fees to the union as a condition of employment as a teacher in that state.

"We're uniquely qualified to help out in this case because we've had considerable experience fighting the unions in court," said James Abernathy, the Freedom Foundation's general counsel. "And we know that when they lose, they look for a way to pretend it didn't happen. Our brief is a way to ensure this time they live up to the court's ruling once it's issued."

The unions got a glimpse of the future in June 2014 when the Supreme Court in Harris v. Quinn ruled that Medicaid-subsidized homecare providers could not be forced to pay union dues or fees. In the wake of that decision, SEIU 775 and 925, the locals representing 50,000 independent providers in this state, at first pretended the ruling didn't apply to Washington workers. When it became clear it did, the unions engaged in a number of deceptive strategies to avoid informing "members" of their newly affirmed rights – or allowing anyone else to tell them, either.

"This is a make-or-break moment for government employee unions," Abernathy said. "If they have to lie, cheat and steal to preserve their monopoly over the public-sector workers of this state, they will. They've done it before and they'll do it again if they're not prevented from doing so."

Attorneys representing Friedrichs maintain forced confiscation of wages to support the union in any way amounts to an infringement of a worker's First Amendment rights of free speech and association. The lawsuit seeks to overturn Abood v. Detroit Education Association, the 1977 U.S. Supreme Court case that outlawed so-called "closed-shops" for government agencies, but still required those who opt out of full union membership to pay a "representation fee" to the union to compensate it for collectively bargaining on the workers' behalf.

Friedrichs v. CTA would free public-sector workers from the requirement to pay anything at all, a development that could cost the unions – and the liberal politicians they fund almost exclusively – billions. Consequently, the government employee unions are waging a desperate struggle in court, while simultaneously developing strategies to minimize the damage should they lose.

The most predictable of these are "opt-out" schemes that place the burden of proof on the worker to show he or she doesn't want to support the union rather than forcing the union to demonstrate they actually do.

"This type of 'contribution' amounts to theft," Abernathy said, "and it's unconstitutional.

"From the unions' perspective, the next best thing to an arrangement that gives the workers no choice is one that makes it nearly impossible for them to exercise it," he said. "We've already seen in this state and many others that, left to their own devices, unions and states will simply deem workers to be full dues-paying members unless they jump through a lot of hoops to opt out."

The Freedom Foundation was instrumental in establishing a similar precedent in a 2007 Supreme Court case, Davenport v. Washington Education Association, in which the justices unanimously agreed unions could not use dues money for political purposes without a member's affirmative authorization.

"It's like someone walking into a car dealership and driving off with cars until the dealership objects – and then letting the thief keep the cars he took prior to the dealership's objection," Abernathy said. "You can't just assume someone wants you to take their money or their property. Until you can show the rightful owners really want you to have something, the default assumption is they don't."

Abernathy noted that in Harris v. Quinn, Justice Samuel Alito made just that point when he wrote in the majority opinion, "Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support."

"In Harris," Abernathy noted, "the court said forcing quasi-public employees to pay compulsory union fees is unconstitutional, but it did not address the opt-out schemes unions employ to resist and undermine this decision. The court should finish the job this time and fully protect all public employees from what essentially amounts to state-sanctioned theft by unions."

The court is expected to rule on Friedrichs next June.

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