The U.S. Supreme Court has now heard arguments in a case with the potential to shake up the collective-bargaining landscape for teachers’ unions and other public-employee labor organizations.
(Case No. 11-681), argued Jan. 21, is a relative sleeper involving eight Illinois home health-care workers (out of 28,000 in the state) who declined to join the union and object to paying agency, or “fair-share,” fees for being represented by one.
Anti-union advocates asked the justices to overrule a key 1977 precedent that authorizes public-worker unions to collect service fees from nonmembers for costs related to collective bargaining.
William L. Messinger, representing the objecting workers on behalf of the National Right to Work Legal Defense Foundation of Springfield, Va., told the justices that the 1977 decision,, should be discarded because compulsory fees infringe upon the First Amendment free-speech and -association rights of the objectors.
President Barack Obama’s administration joined the state of Illinois and public-employee unions in arguing against disturbing the labor-law landmark.
“There is very substantial … contractual reliance throughout the country on the constitutionality of Abood,” U.S. Solicitor General Donald B. Verrilli Jr. told the court.
Signals From the Right
In Abood, the high court upheld a Michigan law that designated a single union as the exclusive bargaining agent for Detroit teachers. Adopting some of its precedents on private-sector “union shop” agreements, the court said teachers in public school districts could be required to pay union fees related to collective bargaining—but not for the union’s political purposes—whether they joined or not.
The Illinois case comes amid a backdrop of growing challenges for public-employee unions, from declining membership numbers to efforts in several states to roll back collective-bargaining rights.
“This potentially could be a very big deal,” Joseph E. Slater, a professor at the University of Toledo and a scholar of U.S. labor history, said in an interview.
Two years ago, in, the court ruled 5-4 that public-employee unions had to get nonmembers to opt in to special dues assessments in certain circumstances. Writing for the majority in Knox, Justice Samuel A. Alito Jr. invited further challenges to the status quo in public-employee unionism when he wrote that “our cases have substantially impinged upon the First Amendment rights of nonmembers.”
The national “right to work” movement picked up on the signal, and is advancing several cases designed to test the viability of precedents such as Abood. A group of nonunion teachers in California is challenging that state’s collective-bargaining law for teachers.
The Abood precedent, unsurprisingly, gets support from teachers’ unions. The National Education Association and its affiliate, the California Teachers Association, filed ain the Supreme Court saying Abood was rightly decided and remains viable. (The American Federation of Teachers didn’t file its own brief in the case, though the .)
The Illinois home-health workers serve under a Medicaid program designed to encourage the states to de-institutionalize some people with disabilities. The workers were getting paid about $7 per hour, with high rates of turnover and low morale, when Illinois decided to make them state employees for collective-bargaining purposes and to certify a union (the Service Employees International Union) as their bargaining representative.
In rejecting the challenge to the service fees by the objecting health workers, the U.S. Court of Appeals for the 7th Circuit, in Chicago, held that the state largely controlled the employment of the program’s home-health workers and thus Abood applied to their collective-bargaining arrangements.
The National Right to Work foundation appealed, and significantly broadened the potential impact of the decision by asking the court to overrule Abood.
During the Jan. 21 oral arguments, there was as much discussion about teachers and their unions as there was about the home-health workers.
Justice Alito suggested that a nonunion teacher opposed to the union’s goals of keeping the tenure system and rejecting merit pay would nonetheless see some of his service fee go to support such goals.
Justice Anthony M. Kennedy questioned charging nonmembers for teachers’ union advocacy for smaller class sizes and shorter hours, matters that ultimately affect the size of the government workforce.
“Is not the size of government a question on which there are fundamental political beliefs, fundamental convictions that are being sacrificed if a nonunion member objects to this line of policy?” he said.
Justices Elena Kagan and Stephen G. Breyer, who voted for the union’s side in the 2012 Knox case, both expressed support for Abood as a matter of stare decisis, or adhering to precedent.
Justice Kagan told Mr. Messinger he was making “a radical argument” for ending compulsory fees that would essentially compel a right-to-work environment in all states, Kagan said.
Even if the court were to go as far as overruling Abood, Mr. Slater of the Toledo Law School said “there will still be public-sector unions around.”
A decision in the case is expected by late June.
A version of this article appeared in the January 29, 2014 edition of Education Week as Collective-Bargaining Case Takes Spotlight at High Court