High Court Seems Skeptical of Mandatory Public Union Fees

People participate in a rally at the Supreme Court in Washington, Monday, Jan. 11, 2016, as the court heard arguments in the “Friedrichs v. California Teachers Association” case.

In this 2013, photo provided by Center for Individual Rights, Rebecca Friedrichs, a veteran Orange County, Calif., public school teacher, poses for a portrait.

Liberals on the court, meanwhile, appeared to have qualms about overruling a 1977 decision known as Abood v. Detroit Board of Education, which upheld requiring nonunion members to pay fees for collective bargaining activities.

“The National Consumers League believes that Abood is based on the constitutional principle that those covered by a union contract should be required to pay their share of fees”, the organization said.

Justice Anthony Kennedy, who is often the swing vote on the court, said the issue is one of “compelled riders” not “free riders”.

“The union is basically making the teachers “compelled riders” on issues with which they strongly disagree”, Kennedy said at one point. In fact, attorneys for the defendants admitted that agency fees in California include political costs such as lobbying state legislators to support union demands.

Collective bargaining, in the context of public employees, is political speech. Chief Justice John Roberts challenged California Solicitor General Edward Dumont to identify any public sector union negotiation that does not reflect a political belief.

Liberal justices said striking down mandatory union fees would affect far more than the 7.2 million public-sector employees who belong to unions nationwide.

By contrast, Justice Antonin Scalia told Dumont: “The problem is that everything that is within collective bargaining is done within the political system”, and thus comes under the First Amendment and its free speech safeguards.

Non-members can already opt out of paying the union’s political activities. Jared Blanchard, a lawyer with the Goldwater Institute, argued that forcing teachers to fund union activities through agency fees erects an ideological barrier to public teaching that discourages some who might be excellent teachers.

“So people who don’t want to be part of the union won’t have to pay and even people who want to benefit from the union will be able to free ride – to use the union to their benefit, but not pay”, she said. Conservative activists and union opponents long have hated the decision, and on Monday a majority of Supreme Court justices seemed poised to reverse it.

Too bad for Johnny Doc that he could only get his brother on the Pennsylvania Supreme Court and not the U.S. Supreme Court.

Will public employee unions wither away if the court rules they can’t collect fees from non-members? Elena Kagan warned that the challengers “come here with a heavy burden” to overturn a almost 40-year-old case on which thousands of contracts and millions of employees rely.

“I would not feel very good about my prospects if I were the unions, given what we’ve seen from the Roberts court in the past two years” says Erin Murphy, a Washington, DC lawyer who specializes in federal appeals court cases.

“That’s quite a big deal”, Breyer said.

This is why much has been written about the Friedrichs case (e.g., my op-ed in the Minneapolis Star Tribune today), and much more will be written, especially if the Court’s ruling restores full free speech rights to Mrs. Friedrichs.

Arguing for the California Teachers Association, lawyer David Frederick said the First Amendment applies differently to public employees performing their jobs.

If a majority of the public employees at a given site vote to be represented by a union, that union becomes the exclusive bargaining agent for the workers.

The justices appeared divided along familiar lines during an extended argument over whether government workers who choose not to join unions may nonetheless be required to help pay for collective bargaining. It’s also not clear how many union members would opt out of dues if they could. And, Philadelphia lacks the strong anti-union current that exists in Wisconsin, meaning that unions and politicians are likely to work together to get around any restrictions placed on them.

The problem, interjected Justice Scalia, is that everything a public union negotiates for “involves political questions”. He noted that 90 percent of California’s 325,000 teachers are union members, and that unionization actually has prevented the massive strikes that characterized the state workplace until the court’s 1977 decision.

“I have a difference of opinion with the union and with what they have been doing over the years”.