Supreme Court Seems Poised to Deal Unions a Major Setback
By ADAM LIPTAK
JAN. 11, 2016 - The New York Times
WASHINGTON — The Supreme
Court seemed poised on Monday to deliver a severe blow to organized
labor.
In a closely watched case brought
by 10 California teachers, the courtfs conservative majority seemed ready to say
that forcing public workers to support unions they have declined to join
violates the First Amendment.
A ruling in the teachersf favor
would affect millions of government workers and culminate a political and legal
campaign by a group of prominent conservative foundations aimed at weakening
public-sector unions. Those unions stand to lose fees from both workers who
object to the positions the unions take and those who simply choose not to join
while benefiting from the unionsf efforts on their behalf.
Under California law, public
employees who choose not to join unions must pay a gfair share service fee,h
also known as an gagency fee,h typically equivalent to membersf dues. The fees,
the law says, are meant to pay for collective bargaining activities, including
gthe cost of lobbying activities.h More than 20 states have similar laws.
Government workers who are not
members of unions have long been able to obtain refunds for the political
activities of unions like campaign spending. Mondayfs case asks whether such
workers must continue to pay for any of the unionsf activities, including
negotiating for better wages and benefits. A majority of the justices seemed
inclined to say no.
Collective bargaining, Justice
Anthony M. Kennedy said, is inherently political when the government is the
employer. gMany critical points are matters of public concern,h he said,
mentioning issues like tenure, merit pay, promotions and classroom size.
The best hope for a victory for
the unions had rested with Justice Antonin Scalia, who has written and said
things sympathetic to their position. But he was consistently hostile on
Monday.
hThe problem is that everything
that is collectively bargained with the government is within the political
sphere, almost by definition,h he said.
The courtfs four liberal members
were on the defensive, asking whether there was good reason to overturn a 1977
decision by the court that allowed the fees.
gYou start overruling things,h
Justice Stephen G. Breyer said. gWhat happens to the country thinking of us as a
kind of stability in a world that is tough because it changes a lot?h
Justice Elena Kagan focused on the
practical consequences of a decision in favor of the challengers.
gThis is a case in which there are
tens of thousands of contracts with these provisions,h she said. gThose
contracts affect millions of employees, maybe as high as 10 million
employees.h
Michael A. Carvin, the lawyer for
the teachers, emphasized what he said was the limited nature of the case. It was
not, he said, an attack on the unionfs exclusive representation of all workers.
A decision in his clientsf favor, he added, would not affect private employers,
who are not subject to the First Amendment.
Justice Ruth Bader Ginsburg asked
whether workers gwho paid these fees against their willh were entitled to
refunds.
Mr. Carvin answered that gall wefre
asking is for prospective relief.h
The fact that so much attention
was devoted to the aftermath of a decision in favor of the challengers suggested
that at least some members of the court viewed it as a foregone conclusion.
Unions say the teachersf First
Amendment argument is a ruse. Nonmembers are already entitled to refunds of
payments spent on political activities like advertising to support a political
candidate. Collective bargaining is different, the unions say, adding that the
plaintiffs are seeking to reap the benefits of such bargaining without paying
their fair share of the cost.
The larger threat, the unions and
their supporters say, is that a decision in the plaintiffsf favor would
encourage many workers who are perfectly happy with the work of their unions to
make the economically rational decision to opt out of paying for it.
Edward C. DuMont, Californiafs
solicitor general, arguing in support of the union, did not dispute that
collective bargaining involved political issues that implicate workersf First
Amendment rights.
gThere are deep public policy
implications to many of the topics and to the general tenor of public employee
bargaining,h he said.
But he said the governmentfs
interests outweighed those rights. gWe need to be able to run our workplaces,h
he said.
Mr. DuMont added that workers
remained free to speak out in other settings.
That did not sit well with Justice
Kennedy. If a worker gis required to pay $500 for someone to espouse a belief
that he doesnft share,h Justice Kennedy said, it would be small comfort gthat he
is now free to go out and argue against it. That means he has to spend another
$500 so that it balances out? That makes no sense.h
David C. Frederick, a lawyer for
the unions, urged the justices not to take a major step without more
information. But Justice Kennedy indicated that the court might have all the
information it needed. gWe could assume,h he said, gthat a state is always
benefited and is more efficient if it can suppress speech.h
Limiting the power of public
unions has long been a goal of conservative groups. Even before Mondayfs
argument, they had reason to be hopeful that their side would prevail in the
case, Friedrichs v. California Teachers Association, No. 14-915.
In 2014, the court stopped
just short of overruling a foundational 1977 decision and declaring that
government workers who choose not to join unions may not be forced to pay fees
in lieu of dues.
In the 1977 decision, Abood
v. Detroit Board of Education, the Supreme Court made a distinction between
two kinds of compelled payments. Forcing nonmembers to pay for a unionfs
political activities violated the First Amendment, the court said. But it was
constitutional, the court added, to require nonmembers to help pay for the
unionfs collective bargaining efforts to prevent freeloading and ensure glabor
peace.h
Justice Kagan said the 2014
ruling, along with one from 2012, gadmittedly expressed some frustration with
Abood.h But that was not enough, she said to justify overruling a 40-year-old
precedent.
Mr. Carvin responded that the
recent decisions had gundermined the doctrinal underpinnings of Abood.h He said
the court had overruled important precedents in similar circumstances in 2010 in
the Citizens United campaign finance decision.
Some of the courtfs conservative
justices said the consequences for public unions should the challengers prevail
would not be particularly negative.
gWhy do you think that the union
would not survive without these fees charged to nonmembers of the union?h
Justice Scalia asked. gFederal employee unions do not charge agency fees to
nonmembers, and they seem to survive. Indeed, they prosper.h
Justice Scalia seemed ready to vote
to overrule the Abood decision.
gThe problem is that it is not the
same as a private employer, that what is bargained for is, in all cases, a
matter of public interest,h he said. gAnd that changes the
situation.h