California's public-employee unions are among the most powerful interest groups in the state Capitol, yet an effort to sneak some language into a bill during the last week of the legislative session shows the degree to which even these lobbies fear a coming rollback in their financial power.
Efforts were underway to pass a "public employee orientation" mandate in which all newly hired public employees — including public-school employees and transit workers — must attend a program sponsored by the recognized local union. The "orientation" would take place during the workday. Employees would be required to show up in person. State taxpayers would pick up the costs. That effort just died in the Assembly yesterday, but is expected to return next year.
Under proposed language, "The content of the recognized employee organization's presentation shall be determined solely by the employee organization and shall not be subject to negotiation." The unions are carving out a right to lobby new employees to join and pay dues.
Put aside obvious concern at this privilege or the gut-and-amend process that would have it move along without normal hearings. This is the real eye-opener: Public employee unions haven't had mandated orientations because they don't need them. Newly hired workers must already pay dues to the recognized union.
What's going on?
This is a pre-emptive strike against a U.S. Supreme Court case that will be decided next summer. In Friedrichs v. the California Teachers Association, some Southern California teachers are challenging the fees workers must pay to teachers' unions. It could affect all public-sector unions.
Currently, the employees must pay dues, but can opt out of membership and need not pay for overt politicking. They must pay "agency shop" fees that deal with collective bargaining under the idea that all employees benefit from that work. Critics complain that these encompass most of the dues employees pay — and the unions throw obstacles in the way of employees who want to opt out of the political portion of their dues.
This legal situation stems from a 1977 Supreme Court decision known as Abood. The justices found it a violation of the First Amendment to force government employees to subsidize political causes they might not endorse, but acceptable that they must pay these "chargeable" expenses.
Friedrichs plaintiffs argue unions use these dues to negotiate with public agencies over the allocation of tax dollars, which is an inherently political question. If, say, unions gain big pay raises or higher pensions, that money comes from taxpayers — or is diverted from other public programs. They don't want to be forced to support those efforts. In a Supreme Court ruling in a 2014 case, Justice Samuel Alito seemed to invite a First Amendment challenge on this point.
The court could simply change the opt-out process, but it could toss out mandatory unionization. Unions are worried.
The California Teachers Association prepared a presentation titled, "Not if, but when: Living in a world without Fair Share." Fair Share is what the unions call the agency shop fee. Most of the union's stated response is unobjectionable, as it involves getting the group's message out to teachers.
But the latest legislative proposal is highly objectionable to many influential groups. "If proponents of agency fees are allowed to urge public employees to pay them voluntarily, this provides an opportunity to anyone with opposing views to address those employees in the same manner," argued a letter to legislators last week from several associations representing local officials including the League of California Cities and the Association of California School Administrators.
"We cannot emphasize too strongly that any legislative proposal on this matter would be premature, as it would pertain to a case that has not yet been considered and decided by the court," the groups added. That's the most obvious point. Why not wait and see what the court decides?
Even some pro-union voices have argued the Friedrichs case doesn't portend the end of the world for public-sector unions, in that it might force them to become more responsive and democratic. In other words, it could be a good thing for everyone if unions learn to rely less on their political power and more on convincing members to voluntarily join and pay dues. The unions might start practicing by holding orientations on their own time.