Related:

1 July 2014, NYT: Supreme Court Ruling on Union Fees Is a Limited Blow to Labor

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http://www.nytimes.com/2015/07/01/us/supreme-court-to-hear-challenge-to-union-fees.html

JUNE 30, 2015

Supreme Court to Hear Challenge to Union Fees

By ADAM LIPTAK

The Supreme Court on Tuesday agreed to decide whether public-sector unions may require workers who are not members to help pay for collective bargaining. A ruling against them could deal a severe blow to organized labor.

The case, Friedrichs v. California Teachers Association, No. 14-915, was brought by California teachers who said that being compelled to pay union fees to subsidize activities they disagreed with violated their First Amendment rights.

Limiting the power of public unions has long been a goal of conservative groups, and they welcomed Tuesday's development.

"The question of whether teachers and other government employees can be required to subsidize the speech of a union they do not support as a condition of working for their own government is now squarely before the court," Mark Mix, president of the National Right to Work Legal Defense Foundation, said in a written statement.

Union leaders expressed alarm at the court's decision to consider the issue.

"The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities -- decisions that have stood for more than 35 years -- and that have allowed people to work together for better public services and vibrant communities," Lily Eskelsen Garcia, president of the National Education Association, and other union officials said in a statement.

The challengers said that some collective bargaining with a government employer amounts to lobbying and that forcing them to pay for those activities violates their First Amendment rights.

"This is a challenge to the largest regime of state-compelled speech for public employees in the nation," the teachers wrote in a brief [1] urging the justices to hear their case. They are represented by Michael A. Carvin, the lead lawyer in the recent challenge to nationwide tax subsidies under the Affordable Care Act. The court allowed the subsidies in a 6-to-3 decision last week.

The Supreme Court will hear arguments in the case in its next term, which begins in October. The ruling could affect millions of government workers, but is unlikely to have a direct impact on unionized employees of private businesses.

Under California law, public employees who choose not to join unions must pay a "fair share service fee," also known as an "agency fee," typically equivalent to members' dues. The fees, the law says, are meant to pay for collective bargaining activities, including "the cost of lobbying activities."

Kamala D. Harris, California's attorney general, defended the fees in a brief [2] urging the justices not to hear the case.

"Mandatory agency fees ensure that all employees in a particular bargaining unit pay a fair share of the cost of the representation," she wrote. "They prevent the unfairness and conflict that could arise were only part of the work force to support representation activities that, by law, must advance and protect the interests of every employee."

The teachers challenging the fees said they were a costly and unconstitutional infringement of free speech.

"Agency fees for nonmembers typically consume roughly 2 percent of a new teacher's salary," the teachers wrote in their brief. "These fees sometimes increase regardless of whether there is an increase in teacher pay. The total amount of annual dues often exceeds $1,000 per teacher."

The teachers acknowledged that nonmembers who ask are entitled to a refund of fees used by the union for purely political activities. "The amount of the refund received by nonmembers who successfully opt out each year is generally around $350 to $400," their brief said. They argued that the Supreme Court should at a minimum require that nonmembers should have to opt in before they are charged for such activities.

But the teachers' broader claim was that collective bargaining is itself a political activity when the employer is the government.

"In this era of broken municipal budgets and a national crisis in public education," the teachers wrote, "it is difficult to imagine more politically charged issues than how much money cash-strapped local governments should devote to public employees, or what policies public schools should adopt to best educate children. Yet California compels petitioners to fund a very specific point of view on these pressing public questions."

"Nor is California alone," they said. "More than 20 other states compel millions of public employees to pay hundreds of millions of dollars to public-employee unions regardless of whether those unions advocate policies the employees support or, indeed, regardless of whether the policies even benefit those employees."

Ms. Harris said the challengers' arguments were far too sweeping.

"Negotiations addressing routine employment matters -- procedures for taking leave, for example, or the condition of faculty lounges, or the method for processing employee grievances -- are not 'political' " in the sense the Supreme Court has used the word in other First Amendment settings, she said.

"Even if petitioners are correct that some topics of collective bargaining could be said to involve matters of public or policy interest," Ms. Harris added, "this case offers no sound basis for testing whether there is a constitutionally relevant line between conditions of employment and matters that are principally issues of public policy." That is because, she wrote, "petitioners argue that all public-sector bargaining is 'political speech.' "

The California Teachers Association, in its own brief [3] opposing Supreme Court review, said the teachers challenging the agency fees had failed to identify any objectionable position taken by the union. "One searches the petition in vain for anything the unions actually seek in collective bargaining to which the petitioners are opposed," the group said.

Last year, the court stopped just short [4] of overruling a foundational 1977 decision and declaring that government workers may not be forced to pay dues to unions to represent them in collective bargaining negotiations if they disagreed with the positions the unions took.

In that 1977 decision, Abood v. Detroit Board of Education, [5] the Supreme Court said that teachers who declined to join a union could nevertheless be required to help pay for the union's collective bargaining efforts to prevent freeloading and ensure "labor peace."

The new case asks the justices to overrule Abood.

[1] http://sblog.s3.amazonaws.com/wp-content/uploads/2015/03/Friedrichs-v.-California-Teachers-Association-Cert-Petition.pdf

[2] http://sblog.s3.amazonaws.com/wp-content/uploads/2015/06/14-915BriefInOppositionOkToPrint.pdf

[3] http://sblog.s3.amazonaws.com/wp-content/uploads/2015/04/79941-California-Brief.pdf

[4] http://www.nytimes.com/2014/07/01/business/supreme-court-ruling-on-public-workers-and-union-fees.html

[5] https://www.law.cornell.edu/supremecourt/text/431/209