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Union fees in jeopardy: In Plain English

For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in Abood v. Detroit Board of Education and strike down the fees. Let’s talk about Friedrichs v. California Teachers Association in Plain English.

The most telling sign that lead plaintiff Rebecca Friedrichs and her fellow teachers are likely to prevail may have actually come from the Court’s four more liberal Justices, who spent relatively little time on the main legal issue before the Court – that is, whether requiring non-members to pay the fee violates the First Amendment. Instead, many of their questions centered on whether, even if Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.

Justice Elena Kagan led the charge, telling Michael Carvin – who argued on behalf of Friedrichs – that public-employee unions have entered “tens of thousands of contracts,” governing “millions of employees, maybe as high as 10 million employees,” that would be disrupted if the Court were to overturn Abood. Therefore, she asked Carvin, “what special justification are you offering here” to do so? When Carvin answered that “the right of the citizen not to be subjected to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Kagan shot back, clearly unconvinced: “Your answer is essentially you don’t need a special justification if” the first decision denied a constitutional right? Justice Ruth Bader Ginsburg chimed in, asking whether employees who don’t join a union would ask for their fees back if Friedrichs wins and suggesting to Carvin that, if the Court overrules Abood, other cases that rely on it would also fall, with far-reaching effects.

In at least a brief flicker of hope for the unions, Justice Anthony Kennedy also seemed to express some concern, telling Carvin that, if they were to “assume that stare decisis is an important consideration for the Court,” what happens to the “many contracts, perhaps thousands of contracts?” Carvin stood his ground, telling Kennedy that the extent to which unions and governments may have relied on the Court’s decision in Abood is irrelevant.

Justice Stephen Breyer made an even broader appeal, focused on the effect that reversing course on the union fees would have on the public’s view of the Court, that may have been directed not only at Kennedy but also at Chief Justice John Roberts, who cares very much about the Court’s legitimacy.  Noting that the Court’s ruling in Abood has worked “reasonably well,” Breyer asked Carvin to explain, “from the point of view of this Court’s role in society,” when “you start overruling things,” “what happen to the country thinking of us as a kind of stability . . . in a world that is tough because it changes a lot?” “It’s a matter of considerable concern,” Breyer emphasized. Breyer acknowledged that some decisions should be overturned – for example, the Court’s 1896 decision in Plessy v. Ferguson, which upheld laws mandating racial segregation under the “separate but equal” doctrine. That decision, Breyer reasoned, “certainly should have been overruled” “because it was a right to treat people equally.” But, Breyer told Carvin, “I can’t find a basic principle here that’s erroneous.”

Questions from the Court’s more conservative Justices confirmed that the more liberal Justices had good reason to be concerned that Friedrichs had the advantage on the merits, as the more conservative Justices displayed skepticism about virtually all of the major arguments proffered in support of the union fees. Arguing on behalf of California, which supported the union, California Solicitor General Edward DuMont emphasized the long history of labor unrest in California in the 1960s, which prompted the state to adopt the current system of unions and fees. California has a critical interest in managing government workplaces, DuMont told the Justices, and it needs to be able to deal with a single union that employees also perceive as adequately representing their interests. The fees at issue in this case serve an important interest in ensuring that such a representative exists, he argued, by providing sufficient and stable funding for the union.

Justice Antonin Scalia voiced sympathy for the state’s need to run its workplaces smoothly, but he was nonetheless dubious about both the need to charge non-members a fee and the consequences if the Court were to strike down the fees. Scalia asked DuMont to explain why public-employee unions would not survive when unions representing federal employees don’t charge non-members similar fees but nonetheless “prosper,” in Scalia’s words. Michael Carvin returned to this point during his rebuttal, reminding the Justices that, in addition to the federal government, twenty-five states already prohibit such fees and were “all fine.”

And Justice Anthony Kennedy downplayed what the union characterizes as a “free rider” problem – the idea that a public employee who declines to join the union that represents him benefits from the union’s work on his behalf without having to pay for it. He told DuMont that “many teachers strongly, strongly disagree with the union’s position.” Charging them a fee, he suggested, doesn’t solve the “free rider” problem, but instead makes them a “compelled rider” on those positions.

Representing the California Teachers Association, David Frederick focused on the nuts and bolts of collective bargaining, explaining that the resulting contracts were “very long, detailed agreements” that covered not only hot-button issues but also more mundane questions like when teachers should arrive at work. All of those questions, he told the Court, require the union to (among other things) conduct legal research and survey its members – the kinds of activities that the fees at issue in this case support. But Scalia countered that, if the union’s work was clearly so important, it should easily be able to convince teachers to join the union instead. And when Frederick emphasized that regulations governing how firefighters in Wisconsin should safely respond to fires were the result of collective bargaining, Roberts retorted that “all of that would still survive” if Friedrichs were to prevail, “unless your basic argument” is that “the unions are going to collapse and not be in a position to negotiate those safety requirements.”

By contrast, some of the Court’s more conservative Justices clearly seemed to buy into a point crucial to Friedrichs’s argument: the idea that, unlike unions in the private sector, the collective bargaining process for public-employee unions is an inherently political one because the salaries and benefits and policies that the union is negotiating affect government budgets. During DuMont’s argument, Scalia told him that “everything that is collectively bargained with the government is within the political sphere, almost by definition,” and Scalia later told U.S. Solicitor General Donald Verrilli, arguing on behalf of the federal government in support of the union, that the government is “not the same as a private employer” – “what is bargained for is all a matter of public interest.” Roberts echoed this sentiment, telling DuMont that “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.”

The Justices paid relatively little attention to the other question in the case: whether a public employee who doesn’t join a union can be required to affirmatively “opt out” to receive a refund of the part of the fee that is not related to collective bargaining. As I explained in my preview of the case, Friedrichs and the other challengers argue that, instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them. The Justices didn’t seem particularly interested in this question, but the few questions that they did ask suggested that they could rule for the challengers on this issue too.  We’ll know more in a few months, when the Justices issue their decision; when they do, we will be back to cover it in Plain English.

[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: Amy Howe, Union fees in jeopardy: In Plain English, SCOTUSblog (Jan. 11, 2016, 5:08 PM),