The day after it handed down its last opinions, the Supreme Court announced that it had accepted several new cases for review in the upcoming term, including a case involving public employee unions that is likely to be the focus of much attention from both sides of the political aisle:
The Supreme Court said Tuesday that it will consider next term whether the rights of government workers are violated when they are compelled to pay fees to unions they do not want to join.
The justices will consider a case from a group of California teachers who say paying fees violates their free speech rights when they disagree with the positions the unions take.
The Supreme Court nearly 40 years ago said that states may allow unions to collect fees from non-members to pay for collective bargaining costs, but not for the political spending the unions do.
But conservatives on the court have expressed doubt about the precedent, and came a vote short last year of overturning it. Instead, the court decided a case from Illinois on narrower grounds.
The case is Friedrichs v. California Teachers Association.
Lyle Denniston lays out the issues in the case, and what the Court will be dealing with when it returns:
It has been clear, since the Court’s ruling exactly one year ago in Harris v. Quinn, that a majority of the Court would welcome a plea to undo the first precedent extending “agency shop” rules to the public sector — Abood v. Detroit Education Association. That four-decade-old precedent was roundly criticized in the lead opinion in Harris, but the opinion stopped short of saying that the ruling should be overturned.
That is the key issue in the new case, Friedrichs v. California Teachers Association. In fact, that case from its beginning was intended as a direct challenge to the Abood decision, and two lower courts decided it quickly on that premise, sending it on toward the Supreme Court.
The new case will be decided in the Court’s new Term, which opens in October. The case is likely to come up for a hearing in December or January.
A final ruling may emerge next year in the midst of a presidential election campaign in which the role of labor unions in American life could be a visible issue. Wisconsin’s Republican governor, Scott Walker, is expected to seek the GOP nomination for the White House after building his public reputation largely out of a showdown with public employee unions in his state.
At the center of the test case before the Court is a practice that labor unions consider essential to their very survival: the ability to draw some financial support from all workers in a unit covered by a union contract, whether they belong to the union or not. Because unions have a binding legal duty to act in the interest of all workers included in the unit, the labor organizations want to collect fees even from “free riders,” as they call non-union workers.
Under Supreme Court rulings going back at least to 1944, companies in the private sector may be required to engage in collective bargaining with a union representing all of the workers in a bargaining unit. If the workplace is not a “union shop,” in which all workers must belong to the union in order to keep their jobs, it can still be an “agency shop.”
Under an “agency shop,” all workers pay union fees. But two rulings by the Court in 1956 and 1961 declared that workers can only be required to pay an amount to support union activities related to collective bargaining, and not for union political activity to which some non-union workers may object.
In the Abood decision in 1977, the Court for the first time ruled that the “agency shop” can be enforced for government workers, too, provided that the fees non-union members paid are related directly to union expenses for collective bargaining, administering the union contract with the employer, or internal grievance procedures.
Even though unions in the public sector attempt to influence government policy-making, to protect the interests of those they represent, the Court declared that that activity is not to be treated as political for purposes of the amount of “agency shop” fees to non-members.
That rationale for the Abood decision is the direct target of the new Friedrichs case. The lawyers who developed that case contend that everything a public-employee union does is an attempt to influence public policy, so non-union members should not have to pay any fees to support the union, if they have a personal objection.
Thus, the case seeks the overruling of the 1977 precedent, to establish a new ban on the “agency shop” throughout the public sector.
A second issue in the case — added in case the Court chose not to overrule Abood — is whether it is unconstitutional to require non-union public employees to pay fees to support union collective bargaining activity unless they expressly opt out. The lawyers for the teachers argue that such employees should be charged fees only if they opt in, explicitly declaring their willingness to pay their share of those expense-related fees.
On the left, of course, the case is being characterized as another case that threatens to “gut” public employee unions. In reality, though, what we’re actually looking at here is just the next step after the Court’s decision in a case out of Illinois that attempted to require mandatory unionization of home healthcare workers tied unto the state’s Medicaid system. In that case, Harris v. Quinn, the Court invalidated the rule but did not go as far as some thought they might and attack the precedent in Abood itself. This time around, it seems as though it is going to be difficult if not impossible for the Justices to avoid dealing with that case and the fundamental issues that it presents. Given the majority in Harris, it would seem that the odds are quite good that the Court will rule against the union here, which is no doubt the reason that public employee unions and their allies are seemingly so unnerved just by the fact that the Court has accepted the case for review at all.
As I’ve noted before, there are serious First Amendment issues involved in cases like this, not only in the manner in which a person in the Plaintiff’s position in this case are forced to join a union in order to hold the job they went to college for to begin with, but also because of the issue of the compelled subsidization of political speech via union dues. Even conceding the point that, on some level, an employee in the position of people like this Plaintiff would be something of a free rider of they were allowed to benefit from the terms negotiated by the union without contributing to the costs of collective bargaining, that alone is not a sufficient answer to problem created when union dues are used for purposes not related to bargaining. It’s fairly well-settled that people cannot be compelled to speak on political matters as a condition of employment, and yet, even under a system where the dues being charged are reduced to cover only “non-political” activities, the fact remains that the fungible nature of money means that they dues that are paid ultimately do help subsidize speech that a member may disagree with. One solution to that, obviously, would be strict requirements that unions limit their activities to collective bargaining, but that raises First Amendment problems of its own and would be largely unenforceable. In any case, the problem of compelled speech is one that was at the center of Harris v. Quinn and it will likely play a role in this case as well.
Beyond the legal issues, there are also legitimate questions about the entire idea of public employee unions that have been raised in the past, not only by conservatives, but also by President Franklin D. Roosevelt himself:
Roosevelt’s reign certainly was the bright dawn of modern unionism. The legal and administrative paths that led to 35% of the nation’s workforce eventually unionizing by a mid-1950s peak were laid by Roosevelt.
But only for the private sector. Roosevelt openly opposed bargaining rights for government unions.
“The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” Roosevelt wrote in 1937 to the National Federation of Federal Employees. Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, “I want to emphasize my conviction that militant tactics have no place” in the public sector. “A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”
And if you’re the kind of guy who capitalizes “government,” woe betide such obstructionists.
Roosevelt wasn’t alone. It was orthodoxy among Democrats through the ’50s that unions didn’t belong in government work. Things began changing when, in 1959, Wisconsin’s then-Gov. Gaylord Nelson signed collective bargaining into law for state workers. Other states followed, and gradually, municipal workers and teachers were unionized, too.
These are policy matters beyond the purview of the Court, of course, but they go to the reason why this case, and Harris, are important and why they are different from issues surrounding unions in the private workplace. Public employee unions are a powerful force, and not necessarily a beneficial one for either their members or for taxpayers. To the extent that there power can be restrained, perhaps we will all benefit.
