Law & Courts

High Court Hearing in Fees Case Has Unions on Defensive

By Mark Walsh — January 19, 2016 6 min read
Michael A. Carvin, the lawyer representing 10 California teachers who refuse to join the teachers' union, argues at the U.S. Supreme Court that the union should not be allowed to levy fees on non-members for collective bargaining.

Teachers’ unions were on the defensive in the U.S. Supreme Court last week as conservative justices appeared open to overruling a key precedent that authorizes public-employee unions to collect fees from non-members for collective bargaining.

“The union basically is making these teachers compelled riders for issues on which they strongly disagree,” said Justice Anthony M. Kennedy, putting a twist on the idea that non-union members are “free riders” unless they are required to pay for the union’s representation efforts.

“Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions,” Kennedy added during the Jan. 11 oral arguments in Friedrichs v. California Teachers Association (Case No. 14-915). “And agency fees ... require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.”

Justice Antonin Scalia, who has expressed concerns about free riders and thus was perhaps the unions’ best hope for the crucial fifth vote to join the court’s four liberals to preserve the 1977 precedent, Abood v. Detroit Board of Education, did not give the unions much reason for optimism.

“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Scalia said. “Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or [some other] basis? All of those questions are necessarily political questions.”

Dueling Rallies and Arguments

Ten California teachers who refuse to join the teachers’ union are asking the Supreme Court to overrule Abood and hold that states may not allow unions to exact such agency fees. The teachers contend their First Amendment speech rights are offended by such compelled fees.

Abood held that state interests in maintaining labor peace and eliminating free riders justified requiring nonmembers to pay such fees, which are also known as service fees or “fair share” fees.

The case is a high-stakes battle between non-union groups and public-employee unions.

Although the proportion of fee-payers in the 23 states that authorize such fees is relatively small, a decision against the unions would lead some full members to quit, since they would no longer face the alternative of having to pay the agency fee. That would hurt the unions’ treasuries, and potentially their political clout (even though agency-fee payers have never been required to support unions’ outright political activities).

On a cold Monday in Washington, hundreds of teachers’ union members rallied outside the Supreme Court building for their side, while nearly as many union opponents gathered as well.

Inside the courtroom, Michael A. Carvin, the lawyer representing Rebecca Friedrichs and the nine other teachers challenging the fees, told the justices that each year, the non-union teachers “are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize.”

Carvin was challenged aggressively by members of the court’s liberal bloc—Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. They had dissented two years ago when the court ruled that a group of Medicaid home-health workers were really not government employees and could not be forced to pay agency fees to a union representing a majority of such workers in Illinois.

Writing for a 5-4 majority in that case, Harris v. Quinn, Justice Samuel A. Alito Jr. wrote at length about Abood’s “questionable foundations,” but he concluded it wasn’t necessary to overrule the 1977 decision in the Illinois case.

Lesa Curtis of Westchester, N.Y., right, a former president of her union, rallies outside the U.S. Supreme Court, which heard arguments Jan. 11 in Friedrichs v. California Teacher's Association.

‘It’s All Money’

Last week, Kagan, whose Harris dissent was a strong defense of Abood, said the non-union teachers faced a “heavy burden” in overcoming stare decisis, the court’s principle of overruling its past decisions only in extraordinary circumstances.

“This is a case in which there are tens of thousands of contracts with these provisions,” Kagan told Carvin. “Those contracts affect millions of employees, maybe as high as 10 million employees. So what special justification are you offering here?”

Carvin said the Abood decision erroneously denied a group of people a fundamental right to be free from supporting speech with which they disagree.

The defense of Abood and agency fees was divided among a lawyer for the state of California; one reprsenting the CTA and its parent, the National Education Association; and one from President Barack Obama’s administration.

Edward C. DuMont, the solicitor general of California, said the states and local governments have important interests as employers when they seek to bargain with a single union representing a class of employees and that union is representing the interests of the non-members as well as members.

Chief Justice John G. Roberts Jr. asked DuMont for an example of an issue subject to collective bargaining that did not implicate public policy issues on which the non-members might disagree with the positions of the union.

Dumont said there were many mundane items that were part of bargaining, such as the mileage-reimbursement rate for business use of an automobile.

“It’s all money,” Roberts replied. “That’s [a question of] how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money. And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

David C. Frederick, representing the CTA and other teachers’ unions, told the justices that “overruling Abood now would substatially disrupt established First Amendment doctrine and labor-management systems in nearly half the country.”

Frederick argued that where an agency-fee system did not exist there was a lack of labor peace.

“In New York City, for example, there were strikes that were occurring all of the time until an agency-fee system was put into place, and that enabled the city to better deliver transit services, school services, and the like,” he said.

U.S. Solicitor General Donald B. Verrilli Jr. also argued on the unions’ side, saying that the reliance on Abood was decided, and “goes far deeper than those 20 state laws and the thousands of contracts affecting millions of people that are based on those laws. In those states, the agency-fee requirement has worked its way, woven its way into the fabric of the relationship between workers and management.”

The Day After

With journalists and other observers almost universally predicting a win for the non-union teachers based on the tenor of the arguments, there was an air of elation the day after at an event at the conservative Heritage Foundation. Carvin and lead plaintiff Friedrichs spoke to a room full of anti-union sympathizers."I thought the argument went well,” said Carvin, but quickly adding, “I’ve taken a blood oath, primarily because of prior experience, never to even hint at a prediction on how a case is going to come out.”

Across town at the headquarters of the NEA, General Counsel Alice O’Brien agreed it was treacherous to predict an outcome based on oral arguments. And she seemed genuinely convinced that the justices would find it difficult to take the drastic step of overruling Abood.

“I think it will be hard for the court to get there once they put pen to paper,” said O’Brien, who attended the arguments. “It would be extremely difficult for the court to reach that result in a way that is principled.”

A decision in the case is expected by late June.

A version of this article appeared in the January 20, 2016 edition of Education Week as Unions on Defensive As High Court Hears Dispute Involving Fees

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