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New threat to public employee unionism

Reacting to an undoubted invitation by the Supreme Court to raise the issue, a group of California public school teachers on Tuesday persuaded the Justices to review the constitutionality of requiring government workers to pay fees to support any labor union activity.  The case involves a direct request for the Court to overrule a 1977 decision that had upheld such fees under “agency shop” rules.

It has been clear, since the Court’s ruling exactly one year ago in Harris v. Quinn, that a majority of the Court would welcome a plea to undo the first precedent extending “agency shop” rules to the public sector — Abood v. Detroit Education Association. That four-decade-old precedent was roundly criticized in the lead opinion in Harris, but the opinion stopped short of saying that the ruling should be overturned.

That is the key issue in the new case, Friedrichs v. California Teachers AssociationIn fact, that case from its beginning was intended as a direct challenge to the Abood decision, and two lower courts decided it quickly on that premise, sending it on toward the Supreme Court.

The new case will be decided in the Court’s new Term, which opens in October.  The case is likely to come up for a hearing in December or January.

A final ruling may emerge next year in the midst of a presidential election campaign in which the role of labor unions in American life could be a visible issue.  Wisconsin’s Republican governor, Scott Walker, is expected to seek the GOP nomination for the White House after building his public reputation largely out of a showdown with public employee unions in his state.

At the center of the test case before the Court is a practice that labor unions consider essential to their very survival: the ability to draw some financial support from all workers in a unit covered by a union contract, whether they belong to the union or not.  Because unions have a binding legal duty to act in the interest of all workers included in the unit, the labor organizations want to collect fees even from “free riders,” as they call non-union workers.

Under Supreme Court rulings going back at least to 1944, companies in the private sector may be required to engage in collective bargaining with a union representing all of the workers in a bargaining unit.  If the workplace is not a “union shop,” in which all workers must belong to the union in order to keep their jobs, it can still be an “agency shop.”

Under an “agency shop,” all workers pay union fees.  But two rulings by the Court in 1956 and 1961 declared that workers can only be required to pay an amount to support union activities related to collective bargaining, and not for union political activity to which some non-union workers may object.

In the Abood decision in 1977, the Court for the first time ruled that the “agency shop” can be enforced for government workers, too, provided that the fees non-union members paid are related directly to union expenses for collective bargaining, administering the union contract with the employer, or internal grievance procedures.

Even though unions in the public sector attempt to influence government policy-making, to protect the interests of those they represent, the Court declared that that activity is not to be treated as political for purposes of the amount of “agency shop” fees to non-members.

That rationale for the Abood decision is the direct target of the new Friedrichs case.  The lawyers who developed that case contend that everything a public-employee union does is an attempt to influence public policy, so non-union members should not have to pay any fees to support the union, if they have a personal objection.

Thus, the case seeks the overruling of the 1977 precedent, to establish a new ban on the “agency shop” throughout the public sector.

A second issue in the case — added in case the Court chose not to overrule Abood — is whether it is unconstitutional to require non-union public employees to pay fees to support union collective bargaining activity unless they expressly opt out.  The lawyers for the teachers argue that such employees should be charged fees only if they opt in, explicitly declaring their willingness to pay their share of those expense-related fees.

Under California law, all public school districts have the option of setting up “agency shop” arrangements for teachers.  The law specifies that the amount of the agency fee can include the expenses of the union’s lobbying on public education policy.

As the teachers’ challenge moved through lower federal courts, the judges in each court ruled quickly against the claim, finding the issue controlled by the Abood precedent.  Those swift decisions were part of the teachers’ strategy to move the case as quickly as possible to the Supreme Court.




Recommended Citation: Lyle Denniston, New threat to public employee unionism, SCOTUSblog (Jun. 30, 2015, 11:04 AM),