Friedrichs v. California Teachers Association: U.S. Supreme Court Deadlocks on Constitutionality of Public Employee Union "Agency Fees"

Just a quick word on Friedrichs v. California Teachers Association (SCOTUS 3/29/16), in which the U.S. Supreme Court appeared set to hold that forcing a public employee to pay for a union's non-political activities, such as collective bargaining, violates the employee's First Amendment rights. 

The death of Justic Scalia in February changed the calculus, and the Court announced on Monday that it is equally divided on the issue. In that situation, which we undoubtedly will see more of until Justice Scalia is replaced, the decision of the lower court stands. In Friedrichs, the Ninth Circuit held that under existing U.S. Supreme Court precedent, forcing public employees to pay such agency fees does not violate their First Amendment rights. 

The Court's per curiam opinion is here, but I'll save you the trouble of clicking on it. It reads, in its entirety: 

The judgment is affirmed by an equally divided Court.

As the poet said, "Strange days indeed." 

The SCOTUSblog page for Friedrichs is here. 

Oyama v. University of Hawaii: Ninth Circuit Affirms Summary Judgment in Public Employee First Amendment Case

In Oyama v. University of Hawaii (9th Cir. 12/29/15), a secondary education candidate applied to become a student teacher, a prerequisite for recommendation to the State of Hawaii’s teacher certification board. The University denied his application because he expressed opinions, among others, that "online child predation should be legal" and that "it would be fine" for a 12-year-old student to have a “consensual” relationship with a teacher.

The plaintiff filed suit, alleging that the University violated his rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment, and the Ninth Circuit affirmed, holding as follows: 

The University did not violate the plaintiff’s First Amendment rights "because its decision related directly to defined and established professional standards, was narrowly tailored to serve the University’s core mission of evaluating Oyama’s suitability for teaching, and reflected reasonable professional judgment." 

The University did not violate the plaintiff's Fourteenth Amendment Due Process rights because the University did not deprive him of a constitutionally protected interest, and even if it did, the University provided him with adequate process, advising him repeatedly of its concerns with his performance. The plaintiff was not entitled to a hearing because the decision  “rested on the academic judgment of school officials.”

The opinion is available here. 

Turner v. San Francisco: First Amendment Does Not Protect Employee Complaints that Are Motivated by Self-Interest, and Employee Cannot State Claim for Wrongful Termination

In Turner v. City and County of San Francisco, ___ F.3d ___ (9th Cir. 6/11/15), the plaintiff, Turner, sued the City and County of San Francisco (City), alleging that it terminated him in violation of public policy after he complained that the City improperly employed him and others as temporary exempt, rather than permanent civil service, employees. The district court dismissed the case, holding that he failed to state a claim for retaliation under the First Amendment because he had not alleged facts demonstrating that he had engaged in protected speech. Turner appealed, and the Ninth Circuit affirmed, holding that Turner's complaints were not protected by the First Amendment because they did not address a "matter of public concern." 

[A]lthough Turner’s complaint “ostensibly could invoke a matter of public concern, as it discusses civil service rules prescribed by local law, . . . Plaintiff’s voiced complaint was focused on and driven by his internal grievance.” In other words, Turner’s complaints—while potentially significant in their implications—arose primarily out of concerns for his own professional advancement, and his dissatisfaction with his status as a temporary employee.

The opinion is available here.

Harris v. Quinn: US Supreme Court Rules on First Amendment Rights of Hybrid Public Sector and Private Sector Union Members

In Harris v. Quinn, ___ U.S. ___ (6/30/2014), the United States Supreme Court considered "whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support." The Court held that it does not, although the opinion's scope and future applicability seem to be limited by the fact that the union members at issue occupy a position somewhere between full-fledged public sector and private sector employees. 

The opinion is written by Justice Alito, with Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joining. Justice Kagan wrote a dissent, in which Justices Ginsburg, Breyer, and Sotomayor joined. 

As usual, the decision's syllabus does an excellent job of tracing the ins and outs of the majority opinion: 

Illinois' Home Services Program (Rehabilitation Program) allows Medicaid recipients who would normally need institutional care to hire a "personal assistant" (PA) to provide homecare services. Under State law, the homecare recipients (designated "customers") and the State both play some role in the employment relationship with the PAs. Customers control most aspects of the employment relationship, including the hiring, firing, training, supervising, and disciplining of PAs; they also define the PA's duties by proposing a "Service Plan." Other than compensating PAs, the State's involvement in employment matters is minimal. Its employer status was created by executive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illinois' Public Labor Relations Act (PLRA).  

Pursuant to this scheme, respondent SEIU Healthcare Illinois & Indiana (SEIU-HII) was designated the exclusive union representative for Rehabilitation Program employees. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process. A group of Rehabilitation Program PAs brought a class action against SEIU-HII and other respondents in Federal District Court, claiming that the PLRA violated the First Amendment insofar as it authorized the agency-fee provision. The District Court dismissed their claims, and the Seventh Circuit affirmed in relevant part, concluding that the PAs were state employees within the meaning of Abood v. Detroit Bd. of Ed., 431 U.S. 209 .  

Held: The First Amendment prohibits the collection of an agency fee from Rehabilitation Program PAs who do not want to join or support the union. Pp. 8-40.  

(a) In upholding the Illinois law's constitutionality, the Seventh Circuit relied on Abood, which, in turn, relied on Railway Employes v. Hanson, 351 U.S. 225 , and Machinists v. Street, 367 U.S. 740 . Unlike Abood, those cases involved private-sector collective-bargaining agreements. The Abood Court treated the First Amendment issue as largely settled by Hanson and Street and understood those cases to have upheld agency fees based on the desirability of "labor peace" and the problem of " 'free riders[hip].' " 431 U.S., 220-222 , 224 . However, "preventing nonmembers from free-riding on the union's efforts" is a rationale "generally insufficient to overcome First Amendment objections," Knox v. Service Employees, 567 U.S. ___ , ___ , and in this respect, Abood is "something of an anomaly," 567 U.S., at ___ .   

The Abood Court's analysis is questionable on several grounds. The First Amendment analysis in Hanson was thin, and Street was not a constitutional decision. And the Court fundamentally misunderstood Hanson's narrow holding, which upheld the authorization, not imposition, of an agency fee. The Abood Court also failed to appreciate the distinction between core union speech in the public sector and core union speech in the private sector, as well as the conceptual difficulty in public-sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes. Nor does the Abood Court seem to have anticipated the administrative problems that would result in attempting to classify union expenditures as either chargeable or nonchargeable, see, e.g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507 , or the practical problems that would arise from the heavy burden facing objecting nonmembers wishing to challenge the union's actions. Finally, the Abood Court's critical "labor peace" analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers. Pp. 8-20.  

(b) Because of Abood's questionable foundations, and because Illinois' PAs are quite different from full-fledged public employees, this Court refuses to extend Abood to the situation here. Pp. 20-29.  

(1) PAs are much different from public employees. Unlike full-fledged public employees, PAs are almost entirely answerable to the customers and not to the State, do not enjoy most of the rights and benefits that inure to state employees, and are not indemnified by the State for claims against them arising from actions taken during the course of their employment. Even the scope of collective bargaining on their behalf is sharply limited. Pp. 20-25.  

(2) Abood's rationale is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Even the best argument for Abood's anomalous approach is a poor fit here. What justifies the agency fee in the Abood context is the fact that the State compels the union to promote and protect the interests of nonmembers in "negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances." Lehnert,supra, at 556. That rationale has little application here, where Illinois law requires that all PAs receive the same rate of pay and the union has no authority with respect to a PA's grievances against a customer. Pp. 25-27.  

(3) Extending Abood's boundaries to encompass partial public employees would invite problems. State regulations and benefits affecting such employees exist along a continuum, and it is unclear at what point, short of full-fledged public employment, Abood should apply. Under respondents' view, a host of workers who currently receive payments from a government entity for some sort of service would become candidates for inclusion within Abood's reach, and it would be hard to see where to draw the line. Pp. 27-29.  

(c) Because Abood does not control here, generally applicable First Amendment standards apply. Thus, the agency-fee provision here must serve a " 'compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.' " Knox, supra, at ___ . None of the interests that respondents contend are furthered by the agency-fee provision is sufficient. Pp. 29-34.  

(1) Their claim that the agency-fee provision promotes "labor peace" misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union or that SEIU-HII has no authority to serve as the exclusive bargaining representative. This, along with examples from some federal agencies and many state laws, demonstrates that a union's status as exclusive bargaining agent and the right to collect an agency fee from nonmembers are not inextricably linked. Features of the Illinois scheme-e.g., PAs do not work together in a common state facility and the union's role is very restricted-further undermine the "labor peace" argument. Pp. 31-32.  

(2) Respondents also argue that the agency-fee provision promotes the welfare of PAs, thereby contributing to the Rehabilitation Program's success. Even assuming that SEIU-HII has been an effective advocate, the agency-fee provision cannot be sustained unless the union could not adequately advocate without the receipt of nonmember agency fees. No such showing has been made. Pp. 32-34.   

(d) Respondents' additional arguments for sustaining the Illinois scheme are unconvincing. First, they urge the application of a balancing test derived from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 . This Court has never viewed Abood and its progeny as based on Pickering balancing. And even assuming that Pickering applies, that case's balancing test clearly tips in favor of the objecting employees' First Amendment interests. Second, respondents err in contending that a refusal to extend Abood here will call into question this Court's decisions in Keller v. State Bar of Cal., 496 U.S. 1 , and Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 , for those decisions fit comfortably within the framework applied here. Pp. 34-40.

The full opinion is available here. SCOTUSblog has a number of interesting articles on the decision here. 

Lane v. Franks: Supreme Court Rules on Public Employee's First Amendment Claim

In Garcetti v. Ceballos, 547 U. S. 410 (2006), the Supreme Court of the United States held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id., at 421. Applying that rule to the facts before it, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected speech, and the employee could not sue his employer for alleged retaliation and violation of his Frist Amendment rights under 42 U.S.C. § 1983. Id., at 424.

In Lane v. Franks, ___ U.S. ___ (6/19/14), plaintiff Edward Lane alleged that his former employer, a public entity, terminated him in retaliation for having testified in court regarding the alleged misconduct of another employee. Lane sued under section 1983 for violation of his First Amendment rights, naming his former supervisor, Franks, in his individual capacity and his former employer's acting president, Burrow, in her official capacity.

The Supreme Court held that Lane's testimony in court was speech as a citizen on a matter of public concern and thus was protected by the First Amendment. Slip op. at 8-12. Further, the Court held that the defendants had failed to show that the government had "an adequate justification for treating the employee differently from any other member of the public" based on the government's needs as an employer. Slip op. at 12-13. Accordingly, Lane could pursue a section 1983 action against both Franks and Burrows for violation of his First Amendment rights.

The Court next considered whether Lane's action against Franks, in his individual capacity, should be dismissed on the basis of qualified immunity. The Court held that Franks was entitled to qualified immunity because he reasonably could have believed, at the time that he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. Slip op. at 13-17.

Lane v. Franks is available here.

Dahlia v. Rodriguez: En Banc Panel Holds That Police Officer May Prosecute Section 1983 Action Based on Allegation That Department Placed Him on Administrative Leave in Retaliation for Reporting Alleged Misconduct of Other Officers

In Dahlia v. Rodriguez, ___ F.3d ___ (9th Cir. 8/7/12) (discussed here), the Ninth Circuit held that the First Amendment does not protect a police officer who reports allegedly illegal conduct by fellow officers. On August 21, 2013, an en banc panel of the Ninth Circuit reversed that decision, holding: 

1. After Garcetti v. Ceballos, 547 U.S. 410, 424 (2006), courts must make a “practical” inquiry when determining the scope of a government employee’s professional duties, and Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009) erred in concluding that California broadly defines police officers’ duties as a matter of law for the purpose of First Amendment retaliation analysis; and 
2. Placement on administrative leave can constitute an adverse employment action. 

The Court also held that on remand, the plaintiff could renew his request for leave to amend his complaint to allege more explicitly which acts were protected by the First Amendment and which acts constituted adverse employment actions. 

Dahlia v. Rodriguez, __ F.3d ___ (9th Cir. 8/21/13) is available here. 

Watch List Webinar -- Ralphs Grocery Co. v. UFCWU Local 8: Statutory Picketing Rights and the First Amendment

The State Bar of California Labor and Employment Law Section presents our first webinar from The Watch List:

Ralphs Grocery Co. v. UFCWU Local 8:

Statutory Picketing Rights and the First Amendment

Wednesday, January 16, 2013 at 12 p.m. – 1:00 p.m. Pacific Time

1.0 Total Participatory MCLE Credits (No Ethics)

On December 27, the California Supreme Court in Ralphs Grocery Co. v. UFCWU Local 8 held that two statutory provisions – Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1) – protect a labor union’s right to picket on private property in front of a grocery store, even though that property does not constitute a public forum under the California Constitution’s liberty of speech provision. The Court further held that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations and which are modeled on federal law do not run afoul of the federal constitutional prohibition on content discrimination in speech regulations. 

Speakers: 

Paul L. More (counsel for UFCWU, argued before Supreme Court) 

William J. Emanuel (counsel for amici Employers Group, et al.)

Moderator:   

Steven G. Pearl, ADR Services, Inc. 

Register here or go to www.calbar.org/online-cle and select a subject area.  All Watch List Webinars will be available in our on-line education catalog (listed in alphabetical order) soon after they are aired: http://calbar.inreachce.com. All Watch List Webinars will begin with the words: THE WATCH LIST. 

The Watch List is a series of webinars on the latest cases of interest to California employment attorneys. We will present the Watch List webinars as soon as possible after decisions are published, and our speakers frequently will be the attorneys who argued in the reviewing court. The Watch List webinars will bring you the most up-to-date information from the leading attorneys in California and the nation. 

Ralphs Grocery v. UFCWU: Cal. Supreme Court Holds That Union Has Statutory Right to Picket in Front of Market

In Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (12/27/12) --- Cal.4th ---, the California Supreme Court has ruled on a labor union's constitutional and statutory rights to picket in front of a grocery market's sole entrance. The opinion, by Justice Kennard with Cantil-Sakauye, Baxter, Werdegar, Corrigan, and Liu joining, gives a good summary of the proceedings below and the holdings: 

A supermarket owner sought a court injunction to prevent a labor union from picketing on the privately owned walkway in front of the only customer entrance to its store. In response, the union argued that two statutory provisions — Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1) — prohibited issuance of an injunction under these circumstances. The trial court denied relief, ruling that the supermarket owner had failed to satisfy section 1138.1‘s requirements for obtaining an injunction against labor picketing.  

The Court of Appeal reversed. It held that the walkway fronting the supermarket's entrance was not a public forum under the California Constitution's provision protecting liberty of speech (Cal. Const., art. I, § 2, subd. (a)), and therefore the store owner could regulate speech in that area. It further held that both the Moscone Act and section 1138.1, because they give speech regarding a labor dispute greater protection than speech on other subjects, violate the free speech guarantee of the federal Constitution‘s First Amendment and the equal protection guarantee of the federal Constitution's Fourteenth Amendment. This court granted the union's petition for review.

We agree with the Court of Appeal that the supermarket's privately owned entrance area is not a public forum under the California Constitution's liberty of speech provision. For this reason, a union's picketing activities in such a location do not have state constitutional protection. Those picketing activities do have statutory protection, however, under the Moscone Act and section 1138.1. We do not agree with the Court of Appeal that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations, and which are modeled on federal law, run afoul of the federal constitutional prohibition on content discrimination in speech regulations. On this basis, we reverse the Court of Appeal's judgment and remand the matter for further proceedings.

Slip op. at 1-2. The opinion is available here.  

I am organizing a series of webinars on important recent decisions for the The State Bar of California's Labor and Employment Law Section.  We will present a webinar on Ralphs Grocery within the next two weeks or so.  I am very pleased that Justice Miriam Vogel and Paul More, who argued the case for Ralphs and the Union, respectively, have agreed to speak.  Please stay tuned for more information. 

Dahlia v. Rodriguez: Ninth Circuit Grants En Banc Review of Police Officer Whistleblower Action

In Dahlia v. Rodriguez, 689 F.3d 1094 (9th Cir. 8/7/12) (discussed here) a three-judge panel of the Ninth Circuit held that the First Amendment does not protect a police officer who reports allegedly illegal conduct by fellow officers. On December 11, the Ninth Circuit granted en banc review of that decision. A copy of the Court's order is here. The Ninth Circuit's page for en banc cases (here) states that the case is "To be calendared the week of March 18, 2013, in San Francisco, California." 

More information to follow. In the meantime, I have added Dahlia to our Watch List of pending cases.  

Dahlia v. Rodriguez: First Amendment Does Not Protect Police Officer Whistleblowers

In Dahlia v. Rodriguez, --- F.3d --- (9th Cir. 8/7/12), the Ninth Circuit held that the First Amendment does not protect a police officer who reports allegedly illegal conduct by fellow officers. The Court's introduction does a good job of explaining the case:  

Four days after Angelo Dahlia, a detective in the City of Burbank Police Department, disclosed the alleged use of abusive interrogation tactics by his colleagues to the Los Angeles Sheriff’s Department, he was placed on administrative leave by Chief of Police Tim Stehr. That decision prompted Dahlia to file a 42 U.S.C. § 1983 suit against Stehr and lieutenants, sergeants, and a detective of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights. The district court dismissed the suit, concluding that our decision in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), controlled Dahlia’s case “unless and until overruled” and that, therefore, Dahlia’s speech was not protected by the First Amendment. The district court, correctly noting that “the nature of an official’s job duties are generally a question of fact,” concluded that Huppert held “as a matter of law that disclosure of incriminating facts is within the official duties of a police officer in the State of California.” Although we have significant reservations about the validity of the Huppert decision, we must agree with the district court that, under Huppert, Dahlia’s disclosure to the Los Angeles Sheriff’s Department was made in the course of his official duties, and thus falls outside the protection offered by the First Amendment. We therefore affirm the judgment of the district court.

Slip op. at 8803.  

Courts considering First Amendment retaliation cases must consider the following:  

(1) whether the plaintiff spoke on a matter of public concern; 

(2) whether the plaintiff spoke as a private citizen or public employee; 

(3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; 

(4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and 

(5) whether the state would have taken the adverse employment action even absent the protected speech.

The district court (C.D. Cal., Judge Margaret M. Morrow) held that Dahlia failed to establish factors two and five: that his speech was “spoken in the capacity of a private citizen and not a public employee,” or that placement on administrative leave constitutes an adverse employment action.  

The Ninth Circuit affirmed on factor two, with quite a bit of hesitation:  

The upshot of Huppert is a rule, binding only in our Circuit, that the act of whistleblowing is itself a professional duty of police officers, thus stripping such speech of the First Amendment’s protection....  Huppert’s treatment of the reporting of police misconduct and corruption as a routine professional duty belies the personal and professional hazards of such acts. If reporting police abuse and misconduct during the course of an internal investigation, or even a federal or third-party investigation, is considered a professional duty, and is thus unprotected speech, as a matter of law, it is inevitable that police officers will be even less willing to report misconduct than they are now, particularly regarding their superiors. The reasoning in Huppert that professional duties can be determined as a matter of law is wrong, and the result that reports of police misconduct are not protected by the First Amendment is dangerous.

Slip op. at 8821-8822.

Although affirming on the first point resolves the appeal, the Ninth Circuit took the opportunity to reverse on the second issue, holding that "under some circumstances, placement on administrative leave can constitute an adverse employment action."  Slip op. at 8822-8824.

The opinion is available here.

Ralphs Grocery v. UFCWU: California Supreme Court Schedules Oral Argument in First Amendment Case

On Wednesday, October 3, 2012, the California Supreme Court will hear oral argument in Ralphs Grocery v. United Food and Commercial Workers Union (Case No. S185544).  Ralphs Grocery raises the following issues:

(1) Did the Court of Appeal err in concluding that the parking area and walkway in front of the entrance to plaintiff's retail store, which is part of a larger shopping center, do not constitute a public forum under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 and its progeny? 

(2) Do the Moscone Act (Code Civ. Proc. ? 527.3) and Labor Code section 1138.1, which limit the availability of injunctive relief in labor disputes, violate the First and Fourteenth Amendments of the United States Constitution because they afford preferential treatment to speech concerning labor disputes over speech about other issues?

The Court will have 90 days after oral argument, or until January 2, 2013, to issue its ruling. 

The Court's web page for the case is here.

Ralphs Grocery v. UFCWU Local 8: California Supreme Court to Address First and Fourteenth Amendment Issues in Picketing Case

I am updating my Watch List with a number of new cases, and this is the first.

In Ralphs Grocery v. United Food and Commercial Workers Union Local 8 (Case No. S185544) the California Supreme Court will address the following issues:

(1) Did the Court of Appeal err in concluding that the parking area and walkway in front of the entrance to plaintiff's retail store, which is part of a larger shopping center, do not constitute a public forum under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 and its progeny?

(2) Do the Moscone Act (Code Civ. Proc. section 527.3) and Labor Code section 1138.1, which limit the availability of injunctive relief in labor disputes, violate the First and Fourteenth Amendments of the United States Constitution because they afford preferential treatment to speech concerning labor disputes over speech about other issues? 

The case is fully briefed and awaiting oral argument. The Court's web page for it is here.