The Supreme Court Appears Set To Issue Crippling Blow To Public Employee Unions

The ruling would undo nearly 40 years of precedent in labor relations.
Pro-union advocates rally outside of the Supreme Court on Monday as the justices heard arguments in a case that could curtail the right of public-employee unions to collect fees from workers who choose not to become members.
Pro-union advocates rally outside of the Supreme Court on Monday as the justices heard arguments in a case that could curtail the right of public-employee unions to collect fees from workers who choose not to become members.
AP Photo/Jacquelyn Martin

WASHINGTON -- A conservative majority on the U.S. Supreme Court gave every indication on Monday that it is ready and willing to invalidate public unions' right to collect what are known as "fair-share" or agency fees, on the grounds that the mandatory collection violates the free-speech rights of nonunion workers.

A key 1977 ruling had upheld the fees -- which go to the general maintenance of union contracts -- under the First Amendment, but the justices reviewing their validity in Friedrichs v. California Teachers Association seem prepared to turn the page and view them through a stricter lens.

"The problem that's before us is whether or not individuals can be compelled to support political views that they disagree with," said Chief Justice John Roberts, seemingly endorsing the argument that even fees that go to a union's collective bargaining efforts -- which cover every worker, even those who aren't union members -- can impinge on the right to free speech.

Michael Carvin, the lawyer representing the group of California public school teachers challenging the fees, argued repeatedly that such financial contributions "coerce the employee to subsidize" politics he or she doesn't support and goes beyond the core function of supporting collective bargaining for better salaries and other benefits.

Drawing a contrast with private-sector unionism, Justice Antonin Scalia said sitting at the bargaining table with the government "is, in all cases, a matter of public concern." And he hinted that "that may require a change of the rule" advanced nearly 40 years ago in Abood v. Detroit Board of Education.

That case said the collection of fees under "agency shop" arrangements, even from nonmembers, was "constitutionally justified" because it recognized "the important contribution of the union shop to the system of labor relations."

But beginning with a pair of cases in 2012 and 2014, conservative justices on the Supreme Court began to chip away at that language in Abood, calling it "questionable" and "something of an anomaly" in constitutional law.

"Overruling Abood now would substantially disrupt established First Amendment doctrine and labor management systems in nearly half the country," warned David Frederick, the lawyer for the California teachers unions defending the agency fee arrangements.

Indeed, the liberal justices tried to reconcile the free-speech issues in the case by coming back to the concept of "stare decisis" -- the principle that the Supreme Court is bound by its prior decisions. And if overturning Abood is the goal, Justice Elena Kagan said Carvin and the nonunion teachers carry "a heavy burden."

"This is a case in which there are tens of thousands of contracts with these provisions," she said. "Those contracts affect millions of employees, maybe as high as 10 million employees. So what special justification are you offering here?"

Carvin said requiring nonunion workers to pay agency fees "erroneously denies a fundamental right" -- a line of thinking that not only garnered support from conservatives on the court, but also from Justice Anthony Kennedy, often the pivotal vote in closely divided cases.

Kennedy dismissed the concern that disallowing the fees would create a regime of "free riders" who reap the benefits of unionism without contributing their fair share.

"The union basically is making these teachers compelled riders for issues on which they strongly disagree," he said, later adding that if collective bargaining truly does improve their standing in the workplace, "the union can convince teachers to join the union."

Roberts likewise brushed aside unions' free ridership worries, noting that the problem is "insignificant" where "employees have shown overwhelmingly that they want collective bargaining."

But Edward Dumont, who argued in support of the unions as solicitor general of California, said that sentiment is "a classic collective action problem."

"Many people can want something in the sense they view it as very advantageous to themselves, but if they are given a choice, they would prefer to have it for free, rather than to pay for it," he said.

Frederick said the fees allow for the "shared sacrifice" workers make "to establish a coherent position with their employer" -- which, in turn, benefits the whole group.

But Kennedy couldn't seem to separate that justification, no matter how noble, from the overriding free-speech aspect.

"Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions," he said. "And agency fees require ... that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points."

Striking his usual pragmatic tone, Justice Stephen Breyer pondered "the court's role in this society" and seemed genuinely worried about overruling a labor law precedent that he acknowledged was not perfect, but was otherwise "a compromise that was worked out over 40 years [ago] and has lasted reasonably well."

When "you start overruling things," he wondered, "what happens to the country, thinking of us as a kind of stability in a world that is tough because it changes a lot?"

A decision in the Friedrichs case is expected by the end of June.

This post has been updated throughout.

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