January 12, 2016
By Steven Wishnia
Washington, DC- Will the Supreme Court rule that collective bargaining by public-employee unions is “political speech” that nonmembers can’t be forced to pay for?
In oral arguments before the Court Jan. 11, lawyer Michael Carvin contended that it is. He is representing the plaintiffs in Friedrichs v. California Teachers Association—California teacher Rebecca Friedrichs and nine others, backed by an array of anti-union organizations—in their attempt to get exempt from having to pay any money to the unions that represent them. They seek to overturn the current rule that workers in a union shop can opt out of the portion of dues that goes to political activities, but can be required to pay “agency fees,” about 70% of full teachers’ union dues in California, to cover bargaining costs.
Because public employees bargain on issues of “public concern,” Carvin claimed, agency fees are the equivalent of requiring workers to contribute to political campaigns, because it forces them to pay to “advocate a viewpoint which they oppose and do not wish to subsidize.”
If teachers who support merit pay disagree with the union’s position, responded California Teachers Association lawyer David C. Frederick, they can persuade the majority of the members that it’s a good idea. Having only one union represent workers serves the “important state interest” of stable labor relations “without unduly burdening speech,” said California Solicitor General Edward C. Dumont. The “government as employer” has rights over workers’ speech that the “government as sovereign” doesn’t, argued U.S. Solicitor General Donald B. Verrilli. Nothing in the agency-fee system prevents workers from disagreeing with the union, he said, and the money goes to contract bargaining and administration.
The main legal question is whether two recent Court decisions can be extended to overturn Abood v. Detroit Board of Education, the 1977 decision that established the current agency-fee rule. In Knox v. Service Employees International Union in 2012, the Court held that unions must get additional consent from nonmembers if they are charged fees for unexpected expenses. In Harris v. Quinn last year, it held that home-care workers didn’t have to pay agency fees because they weren’t full-fledged public employees. Ginsburg and Kagan said those cases were decided “within the framework” of Abood. But in the Harris decision, Justice Samuel Alito endorsed the argument that all public workers’ collective bargaining is “political.”
A secondary issue is whether workers who don’t want to pay for union political activity should have to opt out, or whether those who do want to pay should have to opt in. In California, Fredericks said, opting out is not a burden, as it only involves submitting a one-page form, and it means much less paperwork for the state than opt-in would. Carvin said the only reason for opt-out is “to inflate the union’s war chest.”
The Court’s two political factions are predictably polarized, with the swing vote, Justice Anthony Kennedy, asking very unsympathetic questions to the union side. The four right-wing justices—Alito, Chief Justice John Roberts, Antonin Scalia, and the ever-silent Clarence Thomas—appear eager to overturn Abood. Scalia, questioning Dumont, said that rather than workers who refuse to pay for representation being “free riders,” teachers who disagree with union positions on tenure and merit pay are “compelled riders.” When Frederick said union firefighters had gotten safety gear through collective bargaining, Roberts interrupted him: “Money for equipment the county can’t afford.”
The liberal faction—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appeared to support preserving Abood. If unions have to represent nonmembers in grievances, Sotomayor asked, why can’t they be assessed a fee to cover costs? Ginsburg and Breyer said that by the plaintiffs’ logic, lawyers and college students could claim that their First Amendment rights were being violated by having to join bar associations and pay student-activities fees.
Kagan noted that private employers have the right to require agency fees, so why should public employers be different? Public employers must be held to a stricter free-speech standard, Carvin answered. Private employers can legally discriminate on the grounds of political opinion and sexual orientation, he said.
Scalia said he sympathized with workers’ need for a union, but said federal employees’ unions have survived without being able to collect agency fees. Only 30% of federal workers are union members, responded Dumont. Carvin said that 30% figure showed unions could survive without the fees. He added that it’s not in the government’s interest to have strong unions, because “nobody wants a strong adversary.”
The Court is almost certain to rule that workers should have to opt in rather than opt out of paying political expenses, Steven D. Schwinn of the John Marshall Law School in Chicago wrote. But the issue of overturning Abood is more political. “You only need to take a look at the amicus briefs on either side of the case to see how politicized this case is,” he said. “While the case is clothed in the First Amendment, its naked form is all about the politics of unionization.”
That polarization was on display outside the Court, where two groups of demonstrators faced off: one, more than 100 union members and supporters, and a smaller one of about 40-50 carrying “I Stand With Rebecca” signs. The two groups were also polarized demographically: The union group was racially mixed, reflecting DC’s black middle class of teachers and government workers. The anti-union group was devoid of Afro-Americans.
The case is not an attack on unions, insists Vincent Vernuccio, director of labor policy at the Mackinac Center in Michigan, which filed an amicus brief supporting Friedrichs. It’s about “worker’s choice.” Workers should have the right to negotiate for themselves if they think they can get a better deal, he says, and they don’t need collective action if they’re valuable to their employer. Told that in the 1960s, before baseball players had a strong union, Yankees pitcher Jim Bouton made less than $19,000 a year after one season where he won 20 games and another where he won two games in the World Series, he says he supports the current baseball contract because it provides a salary “floor, not a ceiling.”
He would support a system where unions did not have to represent nonmembers and could win benefits they didn’t have to share with nonmembers, he adds.
“This case is an attack on teachers,” says Ryan Eckes, an adjunct professor at Temple University in Philadelphia, where more than two-thirds of his 1,400 colleagues voted to join the American Federation of Teachers in November. “It would create this absurd situation where unions have to represent people who aren’t paying their fair share.”
“It’s disheartening to hear that some believe that by paying a fair share, by paying for what a union does, not only in regards to representation, but giving them an equal voice in their workplace, that’s problematic,” says Stephen Mittons, an Illinois state child protection investigator in Chicago and member of AFSCME Local 2081. “This is more than just money or fees being paid. This is about giving a voice to the individual where collectively it becomes a strong voice, to where it can meet with management, where it can meet with the employer, and we can talk about workplace issues as well as service issues.”
“This is really an attempt at union-busting,” says Theresa Dudley, president of the Prince George’s County Educators Association, which brought about 50 teachers clad in blue scarves in from Washington’s Maryland suburbs. “Everything that has to do with labor in America has been political. When you go back to the child-labor laws that unions fought for so children under the age of 16 weren’t working in factories, when you go back to the days when pregnant women were not allowed to teach, when you go back to the days when people didn’t have the ability to take time off to be with their families when they were sick, these things are part of what labor does and what we as unions do. And anyone who has a clear conscience has to look at that and say it is imperative that the rights of the worker have to be acknowledged. It’s a civil-rights issue that people are treated fairly if they work for someone.
“We have a democratic process in the NEA. If people don’t like what’s going on, they have the right to lobby within our own organization. It’s not as closed as people think. They have the wrong perception.”