Supreme Court appears skeptical of union fees -- a potentially major loss for labor groups

People rally at the Supreme Court as justices hear arguments in Friedrichs vs. California Teachers Assn.

Jan. 11, 2016 6:44 PM PT

Reporting from Washington

The Supreme Court sounded ready Monday to deal a severe blow to public employee unions by striking down laws that require all workers to help pay for collective bargaining.

In its tone and questioning, the argument resembled more of a congressional hearing at which Republicans took one position, Democrats argued the opposite, and there appeared little chance to sway either side.

The court’s five Republican appointees strongly suggested they believe it is unconstitutional to force an objecting teacher from Orange County and millions like her to pay for union activities they do not support. Justice Anthony M. Kennedy described the mandatory fees as “coerced speech” that violates the 1st Amendment.

Under a 1977 Supreme Court ruling that may now be reversed, public employees can be required to pay a “fair share” fee to reflect the benefits all workers receive from collective bargaining. But at the same time, employees who object cannot be forced to pay for a union’s political activities.

In California, for example, that means teachers are required to pay $650 a year for collective bargaining, but not the roughly $350 more that goes toward the union’s political spending and lobbying.

The court’s conservative majority, which has long voiced skepticism about mandatory union fees, questioned whether such a distinction was relevant.

“Everything that is collectively bargaining is within the political sphere,” Justice Antonin Scalia said.

So the key question, according to Chief Justice John G. Roberts Jr., is “whether or not individuals can be compelled to support political views that they disagree with.”

Meanwhile, the four Democratic appointees, playing defense, said the court should not upset the 1977 ruling.

California and 22 other mostly “blue” states have union-friendly laws requiring fair-share fees. If the court were to declare them unconstitutional, it would upset “tens of thousands” of contracts, said Justice Elena Kagan, and affect as many 10 million public employees.

Public-sector unions will take a financial hit if the court strikes down the fair-share fees, also known as agency fees. Some public employees might opt to stop paying dues entirely, confident that they will nevertheless receive the benefits of the union’s collective bargaining.

But it is unclear how badly unions will be hurt. The chief justice said he doubted unions were “going to collapse.”

Attorneys for Rebecca Friedrichs, the Orange County teacher seeking to strike down the mandatory fees, noted that in California 90% of teachers are paying the full union dues of about $1,000 a year.

“If your employees have shown overwhelmingly they want collective bargaining, then it seems to me the ‘free rider’ concern is really insignificant,” Roberts told California Solicitor Gen. Edward DuMont.

“With respect, I disagree,” DuMont replied. Many employees may think they benefit from the union’s work, “but if given a choice, they would prefer to have it for free, rather than pay for it.”

Under current practice in California, teachers who object to union activities must request a refund of the $350 that is used for political spending. Friedrichs’ lawsuit also challenged this “opt out” arrangement.

When a Washington-based conservative group filed suit in California to challenge the union fees, California Atty. Gen. Kamala Harris intervened to defend the state law.

It remains possible the court could rule narrowly by simply striking down the opt-out procedure as inadequate.

But that narrow approach did not garner much discussion Monday.

Instead, all nine justices appeared to have made their decision. That may be explained by the fact that the justices two years ago faced much the same issue in a case from Illinois that involved home-care workers who are unionized and whose wages are paid by the state.

Justice Samuel A. Alito Jr. wrote an opinion that questioned the constitutionality of forcing objecting workers to pay fees to the union. But in the end, he ruled only that home-care workers were not state employees. The four conservative justices joined Alito’s opinion, while the four liberals dissented.

That set the stage for Monday’s argument in Friedrichs vs. California Teachers Assn. This time, the 1st Amendment question was squarely presented.

In the past, the justices have said that public employees have limited free-speech rights. They may speak out “as a citizen” on a “matter of public concern,” but this right does not extend to workplace disputes.

On Monday, Kennedy made clear he saw the forced fees as a free-speech violation.

“Many teachers strongly, strongly disagree with the union position on teacher tenure, teacher pay, on merit pay, on merit promotion, on classroom size,” he told the California state lawyer. These are “matters of public concern.... The agency fees require that employees and teachers who disagree must nevertheless subsidize the unions on these very points.”

A lawyer for the unions confronted Kennedy when the justice commented that the state is sometimes glad to “suppress speech.”

“Your opinion in Garcetti, Justice Kennedy, allowed for the suppression of the speech by the prosecutor who objected.” He was referring to a 2006 case involving a Los Angeles County deputy district attorney who was demoted for complaining about how his department handled a questionable police search warrant.

“That was in the workplace,” Kennedy shot back. “It didn’t apply to merit pay. It didn’t apply to underperforming teachers.”

“Those are all classic workplace situations,” said David Frederick, the lawyer representing the teachers union.

The exchange highlighted Kennedy’s apparent view that paying fees to a union was a greater free-speech violation than demoting or firing an employee for speaking out in the workplace. The forced fees “involve a whole class of persons whose speech has been silenced, not just one person,” he told Frederick.

The justices are likely to hand down a ruling in June.

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Twitter: @DavidGSavage

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