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Argument preview: New threat to public-employee unions


Photograph by Christi Ransom


Next Monday, January 11, when the Supreme Court returns from its holiday recess, it will devote an expanded argument to a case that has made unions which represent government workers deeply fearful for their financial future and their public stature.  A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.

Since 1977, the Court has allowed public-sector unions to charge the non-members whom they represent fees to cover the cost of bargaining over working conditions that will benefit those non-members as well as the union’s own ranks on the payroll.  They cannot charge a fee to cover union political activity, such as lobbying or campaign spending.  But, applying a bit of elementary logic, a group of non-union teachers in California seeks to nullify even bargaining-related fees.

Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object.  Their target, in union parlance, is the “agency fee.”

From the time the lawsuit in this case was filed in April 2013, it has been aimed at getting the Court to overrule its first decision drawing a distinction between the fees public-sector unions could charge non-members.  At each stage in the lower courts, the lawyers for ten teachers and an advocacy group, the Christian Education Association, conceded that their case was controlled by Abood v. Detroit Board of Education, a 1977 precedent.  So the challenge was quickly dismissed, as the case moved rapidly toward the Justices.  Review was granted last June 30.  The Court will have eighty minutes of argument, twenty minutes beyond the usual hour, to hear from all sides and the federal government.

Although the Abood ruling remains a controlling decision, the Court has been dropping hints for the past two years that the precedent has become shaky.  A majority of the Justices joined in the critique, most strongly expressed in 2014 in Harris v. Quinn.  The Court said then that it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Thus, the challengers are turning their case into a “compelled speech” dispute, treating union assessments as forcing non-members to embrace union goals.

In urging the Court to cast aside the Abood precedent, the California challengers contended that the only way to justify the distinction between the activities for which fees are charged to non-members is to prove “a constitutionally meaningful difference between a public-sector union’s efforts to advance an ‘ideological’ agenda through collective bargaining, and the same union’s efforts to advance the same ‘ideological’ agenda through lobbying or campaign spending.”

Collective bargaining by public-sector unions, the non-members argued, is very different from collective bargaining by private-sector unions, from which the Court borrowed the idea of allowing non-members to be charged for bargaining costs.  “Public-sector unions’ collective-bargaining efforts constitute political speech designed to influence governmental decision-making,” the petition asserted, adding: “In this era of broken municipal budgets and a national crisis in public education, it is difficult to imagine more politically charged issues than how much money cash-strapped local governments should devote to public employees, or what policies public schools should adopt to best educate children.”

The state of California, urging the Court to keep the Abood decision intact, noted that the non-union members have not pointed to any specific collective-bargaining actions that they considered to be “political” in nature.  In fact, the state added, they object to everything the teachers’ union does in collective bargaining, whatever its character.  Negotiations, it contended, for such things as leave from work or the condition of faculty lounges are in no way political.  There is no way, the state argued, to draw a distinction between conditions of work and matters of public policy in bargaining.

The union, the California Teachers Association, made essentially the same points.  Unions, it added, are compelled by state law to engage in collective bargaining for their member and non-member workers, and that is the source of their authority to assess fees to avoid “free riders” who benefit from such negotiations.

If the challenging teachers are not able to persuade the Court to overrule Abood, they have raised a second issue as a fallback position.  They want the Court to strike down the California requirement that those who object to paying fees to the union must take affirmative steps, once a year, to opt out of the fee demand for non-bargaining, actually political costs.  The Court should rule, they argued, that the union should get their consent before charging them fees for activities to which they object — an opt-in alternative.  The opt-out mandate, they asserted, also violates the First Amendment.

Briefs on the merits

In their brief on the merits, the challenging teachers made even more clearly their main point that any money they paid to the union was a form of “subsidy” for the union’s choice of activity in which to engage.  They did not attempt to show that any particular action would be acceptable to them, because they deem the union’s overall message to be one in favor of goals that the non-members may or may not support.

When a union approaches a local government “to extract policy commitments,” the brief contended, that is a “quintessentially political act,” no matter what specific commitment they seek.  Inevitably, it added, the policy changes that are to be made are “some of the most contested issues in education and fiscal policy.”

The teachers also argued that the public-sector unions will not be “bankrupted” if they lose non-members’ agency fees, contending that they are thriving in the federal government sector and in the many states that prohibit “agency fees.”

To the unions’ traditional argument that they are entitled to charge “free riders” for fees because they must represent everyone, the teachers argued that this is only the result of a state policy of having a single union represent all of the teachers, which gives that union a special benefit and, in the process, prevents non-members from negotiating over their own working conditions.  Cutting off their chance to bargain on their own, the brief said, is a “state-imposed” burden.

To the argument that the Court traditionally respects its precedents, the teachers asserted that the Abood decision has lost its stature as a precedent, and is now an “outlier” among the Court’s lengthy list of decisions against “compelled speech” by government.

The brief provided comparatively little argument on the second question, about the opt-out requirement.

The state of California, in its brief on the merits, focused heavily upon a states’ rights argument — that is, that states should have broad leeway to structure the labor relationship between unions and public employees.  Using that power enables a state to promote labor peace, and enables unions to call upon non-members to pay for the representation that the state assures them they will get from the single, approved union.  “Agency fees,” the state’s lawyers contended, are just one piece of an integrated public policy for dealing with employment in public schools.

There is no basis, the state contended, for abandoning the Abood precedent, and it argued that the opt-out system for avoiding fees that go to union political activity involves no compulsion at all, because it is an “easy way” for an objecting teacher to avoid embracing such an activity.

The merits brief for the teachers’ union joined the state in arguing that states have the prerogative to arrange labor relations in their public-sector employment, to gain the advantage of having a single union who represents all of those working in a given bargaining unit and thus avoiding confusion in negotiating working conditions.

On the challengers’ opposition to the opt-out procedure, the union said that outlawing “agency fees” — which the union calls “fair-share fees” — will “override the judgments of 23 states plus the District of Columbia that have enacted statutory collective bargaining frameworks covering public-education employees.  It also will throw into disarray tens of thousands of collective-bargaining agreements governing millions of teachers, police officers, fire-fighters, first responders and other public employees.”

Abood, it added, is thus a settled precedent, and has proved to be workable.

The federal government does not require its own employees to pay “agency fees” to the unions that represent them and other workers, but it entered this case to support the state and the teachers’ union, mainly on the premise that the Abood framework has worked well in contributing to labor peace and should not now be cast aside.

It is contrary to all Court precedent, the government’s merits brief argued, to challenge the “agency fee” — as the California teachers have — on the theory that it cannot survive “exacting scrutiny.”  That has never been the test that the Court has used when judging restrictions on employee speech when the government is acting as the employer, rather than the regulator of speech activity.  The Court, it added, has always given government entities wide leeway to arrange conditions of public employment.

Moreover, the federal government said, public employees who object to positions taken on issues by a union have their own right to speak out in opposition.

The teachers opposing “agency fees” have the support of more than two dozen amici, including eighteen states and the governor of a nineteenth (New Mexico), plus law professors, “right to work” law advocates, school teachers, public policy research groups, and a wide array of conservative and libertarian advocacy organizations.  (The governor of Illinois, Bruce Rauner, has joined an amicus brief on this side of the case, but his authority to do so has been challenged by the state’s solicitor general.)

California and the teachers’ union have nearly two dozen amici on their side, along with the federal government.  Joining in defending the “agency fee” in public employment are twenty-one states (including the New Mexico state government) and the governor of Montana, a lengthy list of private- and public-sector labor unions including teachers’ unions,  a number of city governments and local school districts, civil rights and women’s rights organizations, scholars of constitutional law, labor law, corporate law, and the social sciences, and current and former members of Congress and of state legislatures.

When the case is heard next Monday, Michael Carvin of the Washington, D.C., law firm of Jones Day will argue for the challenging teachers, with forty minutes of time.  There will be three attorneys on the other side: California Solicitor General Edward C. Dumont, for the state with fifteen minutes; David C. Frederick of the Washington law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, for the teachers’ union with fifteen minutes, and U.S. Solicitor General Donald B. Verrilli, Jr., for the federal government as amicus, with ten minutes.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the law firm.]

Recommended Citation: Lyle Denniston, Argument preview: New threat to public-employee unions, SCOTUSblog (Jan. 4, 2016, 3:31 PM),