Published Online: July 8, 2014
Published in Print: July 9, 2014, as High Court Stops Short of Overruling Precedent on Union Fees

In High Court Decision, Public-Employee Unions Avoid Damaging Blow

The teachers' unions avoided a damaging blow last week when the U.S. Supreme Court stopped short of overruling a key precedent that authorizes them to extract service fees from those who object to joining the union.

In a case involving the unionization of home-health-care workers in Illinois, the justices ruled 5-4 that workers under the Medicaid program were not full-fledged state employees, and thus the court's 1977 precedent permitting unions to charge "agency fees" to nonmembers for collective bargaining did not apply.

But writing for the majority in Harris v. Quinn (Case No. 11-681), Justice Samuel A. Alito Jr. devoted page after page to undermining the precedent, Abood v. Detroit Board of Education. He repeated his stance from a 2012 decision that Abood is "an anomaly" that doesn't fit well with the First Amendment's guarantee of free expression because it permits states to compel union objectors to support views with which they disagree.

"While we do not overrule or affirm Abood," Justice Alito said in court on June 30, "we refuse to extend it" to the Illinois home-health workers. His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Theories abounded last week about why the court's conservatives declined to overrule the Abood precedent. Justice Alito had essentially invited a challenge to Abood in the decision two years ago, Knox v. Service Employees International Union, which also dealt with agency fees, and most of the briefing and argument in the Illinois case this term had been about whether Abood should be overruled.

One theory is that the Illinois program showed itself to be different from the normal case of government employment. The patients, or "customers," in the Medicaid program control most aspects of the home-health workers' employment, and they were only considered state workers so they could form a union.

"It is therefore unnecessary for us to reach [the objecting workers'] argument that Abood should be overruled," Justice Alito said in a footnote—after he spent about 12 pages questioning Abood and its underpinnings in the court's other precedents on private-sector union shops and public-sector agency shops.

Another, seemingly more likely theory, is that Justice Alito's draft opinion was aiming to overrule Abood, but one or more members of his majority declined to go that far.

"It's very interesting that after the Knox case, in which Alito invited this full-dress challenge to Abood, he couldn't get the fifth vote for that proposition," Alice O'Brien, the general counsel of the 3 million-member National Education Association, said in an interview.

But she agreed that Justice Alito and the majority were potentially sending another, more formal "warning shot" about the continued viability of Abood. The NEA filed a friend-of-the-court brief in the case on the side of the state of Illinois (and argued for not overruling Abood).

Matthew T. Bodie, a law professor at St. Louis University and a labor law expert, agreed that the court's conservatives are likely setting the stage for the next challenge to Abood. He noted a third theory, that "this is as far as they are able to go."

This is the view advanced by Justice Elena Kagan, writing the dissent also signed by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor.

After criticizing the majority for "taking potshots" at the 1977 precedent, Justice Kagan said, "The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision."

Teachers' Case Coming

The foes of public-employee unions were masking any disappointment that the court did not go further and overrule Abood.

"Here, they didn't need to, and if the court can avoid overruling a precedent, it will," said William L. Messenger of the National Right to Work Legal Defense Foundation, the Springfield, Va.-based group that represented the objecting Illinois workers and which has battled the teachers' unions for years over issues such as compelled fees.

Still, "the court's holding that Abood is on shaky foundations means that its days may be numbered," Mr. Messenger said.

The next challenge to Abood may reach the Supreme Court sooner than later. In California, a group of 10 nonunion teachers from several districts are challenging that state's law authorizing teachers' unions to charge agency fees to nonmembers.

The nonunion members object not just to political spending by their local and state NEA affiliates, which they theoretically aren't being charged for, but they also "fundamentally disagree with many of the policy positions the unions advance in the collective-bargaining process," their court papers say.

Michael A. Carvin, an experienced Supreme Court litigator in Washington who is helping to represent the teachers, noted last week that the teachers can only win if the high court overrules Abood. So he renewed a request last week that the U.S. Court of Appeals for the 9th Circuit, in San Francisco, rule against the group as quickly as possible so the case can be on its way to Washington.

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"I think the [Supreme] Court will seriously entertain a case from teachers asking whether Abood should be overruled," he said.

Mark Richard, counsel of the 1.5 million-member American Federation of Teachers, said that "unions have to assume that as they go forward, that Abood is at risk. You can't read Alito's comments without concluding that." He said the "counterintuitive" assessment is that "unions will use the ruling to actually get stronger. … The court may change the rules, but that will not dissuade union leaders from more organizing."

Ms. O'Brien of the NEA noted that one of her lieutenants in the union's legal office, Jason Walta, wrote an online essay last week suggesting that even if Abood were overruled, "it would hardly be the kill-shot that some union opponents have cheered for."

"Our ability to recruit and retain members is not affected by" the wrangling over agency fees, Ms. O'Brien said. "The NEA existed long before Abood, and, God forbid if it goes away, the NEA will exist long after Abood."

Vol. 33, Issue 36, Pages 24,32

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