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Symposium: Agency fees benefit the workplace — just ask the states

Xavier Becerra is the attorney general of California. Aimee Feinberg is a deputy solicitor general in the California Department of Justice.

States like California have a great deal on the line in Janus v. American Federation of State, County, and Municipal Employees, Council 31: Unions that give voice to public employees may no longer be able to effectively do their job, depending on how the Supreme Court rules.

For decades, public employees — whether or not they join a union — have paid fees to support the cost of union representation, which serves them even as non-union members. The idea behind the fees required is simple: Everyone who benefits from union representation should share fairly in the cost.

Union representation is beneficial for both employees and employers. Unions are effective voices for promoting the day-to-day concerns of employees in the bargaining unit, including wages, health and safety, paid sick days, and health-care benefits.

Collective bargaining also provides public-sector employers with an effective tool for managing the workplace. In the 1960s and 1970s, states throughout the country saw significant labor unrest, including strikes by public employees that disrupted the delivery of public services. California and other states responded by adopting a new system of workplace management: collective bargaining with a single representative fairly chosen by a majority of employees in a defined unit.

The survival of this system of workplace management is now before the Supreme Court. Specifically, Janus asks whether the Supreme Court should overrule Abood v. Detroit Board of Education, which recognized that public-sector workplaces benefit from having a single union represent employees in collective bargaining and said that states can require non-union employees to financially support core union activities. The petitioner urges the court to hold that mandatory agency fees violate public employees’ First Amendment rights.

States have long used agency fees as one important part of their strategy for managing large and complex public workforces, and to rule against those fees would disrupt state workplaces all across the country. The petitioner’s challenge to agency fees ignores this context; critical state interests are at stake.

Today’s collective-bargaining systems allow employees to decide to band together and pick an organization to represent their interests to management. The state agrees to recognize that choice and negotiate with the selected organization over certain terms and conditions of employment. But the state also requires the bargaining agent to fulfill important responsibilities and to do so in a particular way.

For example, the exclusive bargaining representative must bargain with the employer in good faith and, importantly, must fairly represent all employees in the bargaining unit — union member and nonmember alike. That means that a union, once selected as the exclusive bargaining representative, is not free to act only in the interests of its members. An exclusive representative cannot seek preferential contract terms for union members or single out non-union members for disfavored treatment. It must serve the interest of the bargaining unit as a whole.

This system does more than prevent strikes and labor unrest. Today, state collective-bargaining regimes provide public employers with a mechanism for effective personnel management. Collective bargaining helps employers gather information about employees’ needs and preferences, address issues that could otherwise breed dissatisfaction and inefficiency, and build support for their own priorities, including when fiscal pressures require painful cuts.

State collective-bargaining laws also help employers deal with employee grievances. When an employee believes that her employer has not lived up to its commitments in a collective-bargaining agreement, the union can help resolve the dispute before it reaches the costly arbitration stage.

Agency fees are an integral part of this system. Negotiating complex agreements can be time-consuming and expensive, and agency fees assure the employer that the exclusive bargaining representative will have a stable source of funds to get the job done. Simultaneously, agency fees distribute the costs of the system in a way that is fair: Because all employees receive the benefits of union representation, all employees are expected to pay a share of the costs. Mandatory fees can also help limit active membership campaigns that might lead the union to position itself as management’s adversary.

Agency fees support contract-administration functions as well. Collective-bargaining agreements often assign unions responsibility for tasks that help make the workplace better. For example, exclusive bargaining representatives operate mentoring programs and assist in running employee leave-donation programs. Government employers have substantial interests in ensuring that exclusive bargaining agents can continue to perform these roles.

The Supreme Court has long held that when a state imposes restrictions in its capacity as employer, and not as sovereign, it is entitled to wide latitude. That’s because, as the court recognized in Connick v. Myers, “government offices could not function if every employment decision became a constitutional matter.”

The court has said that public employers can search employees’ desks for certain work-related purposes without a warrant, subject them to intrusive questions about their backgrounds, insist that they cut their hair, and even bar them from actively participating in political campaigns — all based on the government’s need to manage its affairs effectively. Mandatory agency fees fit comfortably in the broad range of employment-related restrictions that the Constitution permits governments to adopt to address real-world management challenges.

The petitioner and the United States as amicus curiae ask the court to apply exacting or even strict scrutiny to state agency-fee laws. But to do so would ignore the context in which agency fees arise. States impose agency-fee requirements in their capacity as government-employers, and those requirements apply to individuals only in their capacity as public employees. Agency fees are part of a management strategy to help public employers efficiently and effectively run their operations. Applying exacting or strict scrutiny in this context would be strikingly anomalous, given the longstanding and undisputed rule that the government has greater leeway when setting rules for public employment.

It would also be wrong to equate agency fees with compelled-speech restrictions that the Supreme Court has struck down. For example, more than 70 years ago in West Virginia State Board of Education v. Barnette, the court held unconstitutional a West Virginia requirement that schoolchildren salute the flag and recite the Pledge of Allegiance. Such a requirement impermissibly coerced children to make an “affirmation of a belief and an attitude of mind.” Thirty years later in Wooley v. Maynard, the court said that New Hampshire could not criminally punish citizens who covered up the state’s motto on their license plates. Requiring motorists to broadcast “Live Free or Die” to the world, from their own cars, unconstitutionally conscripted them as “courier[s]” for the state’s ideological message.

Agency fees are not at all the same. Employees are required to contribute their pro rata share of the costs of collective bargaining and contract administration. But they are not compelled to communicate any views they don’t hold or express solidarity with any organization whose principles they reject.

Agency-fee payers are free to join any organization they choose and to speak out on any issue they wish, including to oppose any collective-bargaining agreement and the union itself. And importantly, the views conveyed by the union in collective bargaining do not purport to express the personal views of any individual employee — they are the bargaining unit’s official position and are recognized as such.

The petitioner sees agency-fee requirements as no different than compelling financial support for general lobbying and political and ideological activities. But again, that ignores the context here.

States like California adopted collective-bargaining laws to create a special mechanism for resolving differences between workers and management. In doing so, they set particular rules of the road that constrain and regulate what happens at the negotiating table. Collective bargaining may address only specified topics. Exclusive bargaining representatives must negotiate in good faith, participate in specific procedures if the parties reach an impasse, and fairly represent the interests of all employees. Mandated fees to support this distinctive activity are not the same as forced support for general lobbying or public-relations campaigns.

Agency fees serve important interests of public employers across the nation. The First Amendment does not require states like California to cast them aside.

Recommended Citation: Aimee Feinberg and Xavier Becerra, Symposium: Agency fees benefit the workplace — just ask the states, SCOTUSblog (Dec. 22, 2017, 1:55 PM),