Breaking News

New challenge to public employee unions, made simple

Editor’s note: This post examines Friedrichs v. California Teachers Association, a case the Supreme Court has agreed to review during its upcoming Term.  The blog will be hosting a symposium on the case this week.

Labor unions that represent government workers are now facing a series of challenges, not least of which is the blame for pushing up the pension and other costs that state and local governments contend they can no longer afford — as in Detroit’s $18 billion bankruptcy.  They also see a high-profile presidential candidate — Wisconsin Governor Scott Walker — basing much of his campaign on the pride of having beaten down those unions in his home state.  But their biggest worry right now may lie in the Supreme Court, where the Justices are to take up a case against them during the new Term starting in October.

There is a lot of history behind this dispute. The specific case focuses on dues charged by unions representing the public school teachers in California, but it raises much broader questions.  The future of public-sector unionism itself could be at stake.  Let’s sort this out, simply.

Labor unions in America have definitely seen better days.  Membership in unions has been plummeting for years: from a high in 1945, when one of every three workers belonged to a union, the number is now down to fewer than one in ten.  Unions in the private sector have fared the worst: only about 6.6% of workers in industry belong to a union now.

That has left public-sector unions, representing 35.7% of government workers, to carry the lead banner for organized labor across the United States.  But the public-sector unions have been losing favor in an important venue: the Supreme Court.  They now face, in the Court, at least the prospect of losing a significant chunk of their financial support.

These dire prospects are part of a long-term trend that grows out of a hard reality for U.S. unions in general: for generations, they have been caught between a legal duty, on one hand, and, on the other, a resistance movement within the ranks of workers they represent.  If a union wins the legal right to represent a group of workers in what is called a “bargaining unit” — a company’s whole workforce, or a defined part of it — it has the obligation to deal with management on behalf of all of the unit’s workers, whether or not they have joined the union as members.  Any workplace benefits it wins go to all the workers, not just the members.

But a movement that often goes by the phrase “right to work” has long kept the unions from getting all the unit’s workers to join. Ir used to be that some unions were allowed to make union membership a condition of even having a job (that is, a “union shop”).  That has become a casualty of the success of the opposition, the “right to work” movement.

Many workers across the nation do not want to join a union, and they generally have the legal right to refuse.  But, for labor unions in both the private sector (since at least 1944) and the public sector (since 1977), the organizations can charge non-members a monthly fee that is supposed to compensate the union for activities that directly benefit those workers, too.

This fee is less than what the members pay each month, and unions are supposed to calculate the non-members’ monthly fee (a so-called “agency fee”) so that it only covers those workers’ share of what the union does to represent all workers on wages, hours, and conditions in the workplace (the bargaining issues).

Labor unions, though, do a good deal more than bargain with management over workplace contract issues.  They actively lobby legislatures, at state and federal levels, to try to get new laws to support workers and their families.  And many of them are very active in politics, especially election campaigns.  For decades, unions have been a hardy core of the Democratic Party’s followers.

The union’s costs of carrying on those non-bargaining activities cannot be included in the calculation of what non-members in the unit pay in their monthly fee, if those workers object to paying anything to support those efforts.

The Supreme Court has been at the center of the fee issue in American unionism for a long time, and most of its rulings on fee questions have come in cases involving private industry.

In two key decisions, in 1956 and 1961, the Court ruled that workers in the private sector can only be required to pay a fee to cover the union’s bargaining costs.   Those were decisions interpreting federal labor law, rather than the Constitution.

The Court turned to the public sector for the first time in 1977, in Abood v. Detroit Board of Education.  The Justices ruled that requiring non-members to pay an agency fee did not violate their rights under the First Amendment.

Even though public-sector unions do engage in political activity, in the broader sense of that phrase, the Court said, non-members do not have to cover those costs; non-members are entitled at least to a refund if they are charged for costs other than bargaining, according to the ruling.

In several decisions since then, the Court has clarified how the agency fee system is supposed to work.  The non-members must be given advance notice of what their fee will be, and how it is calculated; any time the union starts a new activity that affects its costs, it must give a new notice of how the fee is going to be set, and the union must have a neutral decision-maker to decide fee disputes.

Beginning in 2012, in Knox v. Service Employees International Union, involving the union’s assessment of a special new fee, the Court began criticizing the Abood decision that had put public-sector unions into the agency fee realm.  Even the agency fee, the Court majority said, puts a burden on non-members’ First Amendment rights.

That critique reached a new peak in the 2014 decision in Harris v. Quinn, when a majority obviously conveyed a strong inclination to reopen the Abood decision, although it did not do that explicitly at that time.

More than a year before the Harris decision emerged, however, lawyers for a group of public-school teachers in California took the hint of the Knox decision.  In April 2013, ten teachers, along with the Christian Educators Association International, filed what was clearly intended to be a test case — that is, to test the continued validity of the Abood decision.

The aim was for non-members not to pay any agency fee at all.  The theory was simple: when a union is operating in the public sector, everything it does is political — that is, every benefit it wins from a government employer adds to the public budget and adds to the taxpayer’s burden.  And some workers object, citing their First Amendment right not to be identified with any political or legislative cause pursued by a union that represents them.

Of course, lower courts were bound by the Abood decision: these workers, according to that ruling, had no First Amendment right not to finance public-sector bargaining activity.  At every step in lower courts, then, the teachers’ lawyers conceded that they should lose at those levels; they wanted lower courts to apply the Abood decision, as they were obliged to do, and to have the case thus move quickly on up to the Supreme Court.

The lower courts obliged, and the case reached the Court in January. The teachers quickly drew the support of nine states, former elected officials in California, and a number of conservative legal advocacy groups.

The challengers raised two questions.  First, they asked the Court directly to overrule Abood, using the First Amendment to strike down the “agency fee” obligation.  The logic and reasoning of the Court’s most recent decisions, the petition contended, “have shattered the intellectual foundation of its approval of such compulsion.”

The time has come, it added, at least to engage in a full, new review of the First Amendment implications of the agency fee arrangement.

The petition, though, has a fallback position, in case there turns out not to be a majority to cast aside the Abood precedent altogether.   It argued that the Court, again applying the First Amendment, should at the very least rule that a non-member of a public-sector union may not be required to take the initiative every year to opt out of paying fees that go to political activity, as such, but rather should be permitted to opt out just once and then remain excused from paying any such fee unless each individual non-member explicitly agreed to pay it.

The system of separating costs that can be assessed from non-members and those that can’t, the petition said, has grown too complex to assure the objecting workers that they will not be subsidizing activity that they do not endorse.

The petition is filled with strong anti-union rhetoric; for example, it opens with the comment that “[t]his is a challenge to the largest regime of state-compelled speech for public employees in the nation.”

California chose not to respond to the petition for review, but the Justices nonetheless ordered it to do so.  On the final day of the just-ended Term, the Court agreed to hear the case.  It will be heard early next year, and decided by the following summer.   A ruling, coincidentally, is likely to come out in the midst of the 2016 presidential and congressional election campaigns.






Recommended Citation: Lyle Denniston, New challenge to public employee unions, made simple, SCOTUSblog (Aug. 24, 2015, 12:08 AM),