UPDATE:
Case Update: Friedrichs v. California Teachers Association
Union fees in jeopardy: In Plain English<http://scotusblog.us7.list-manage2.com/track/click?u=0c05b0842a082a00aa39f4d77&id=8dfd3db82e&e=6ae2c04c39>
For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in Abood v. Detroit Board of Education<http://scotusblog.us7.list-manage1.com/track/click?u=0c05b0842a082a00aa39f4d77&id=ffedc43337&e=6ae2c04c39> and strike down the fees. Let’s talk about Friedrichs v. California Teachers Association<http://scotusblog.us7.list-manage.com/track/click?u=0c05b0842a082a00aa39f4d77&id=79d08cda0e&e=6ae2c04c39> in Plain English.
The most telling sign that lead plaintiff Rebecca Friedrichs and her fellow teachers are likely to prevail may have actually come from the Court’s four more liberal Justices, who spent relatively little time on the main legal issue before the Court – that is, whether requiring non-members to pay the fee violates the First Amendment. Instead, many of their questions centered on whether, even if Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.
Justice Elena Kagan led the charge, telling Michael Carvin – who argued on behalf of Friedrichs – that public-employee unions have entered “tens of thousands of contracts,” governing “millions of employees, maybe as high as 10 million employees,” that would be disrupted if the Court were to overturn Abood. Therefore, she asked Carvin, “what special justification are you offering here” to do so? When Carvin answered that “the right of the citizen not to be subjected to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Kagan shot back, clearly unconvinced: “Your answer is essentially you don’t need a special justification if” the first decision denied a constitutional right? Justice Ruth Bader Ginsburg chimed in, asking whether employees who don’t join a union would ask for their fees back if Friedrichs wins and suggesting to Carvin that, if the Court overrules Abood, other cases that rely on it would also fall, with far-reaching effects.
In at least a brief flicker of hope for the unions, Justice Anthony Kennedy also seemed to express some concern, telling Carvin that, if they were to “assume that stare decisis is an important consideration for the Court,” what happens to the “many contracts, perhaps thousands of contracts?” Carvin stood his ground, telling Kennedy that the extent to which unions and governments may have relied on the Court’s decision in Abood is irrelevant.
Justice Stephen Breyer made an even broader appeal, focused on the effect that reversing course on the union fees would have on the public’s view of the Court, that may have been directed not only at Kennedy but also at Chief Justice John Roberts, who cares very much about the Court’s legitimacy. Noting that the Court’s ruling in Abood has worked “reasonably well,” Breyer asked Carvin to explain, “from the point of view of this Court’s role in society,” when “you start overruling things,” “what happen to the country thinking of us as a kind of stability . . . in a world that is tough because it changes a lot?” “It’s a matter of considerable concern,” Breyer emphasized. Breyer acknowledged that some decisions should be overturned – for example, the Court’s 1896 decision in Plessy v. Ferguson<http://scotusblog.us7.list-manage.com/track/click?u=0c05b0842a082a00aa39f4d77&id=8f0fb6d733&e=6ae2c04c39>, which upheld laws mandating racial segregation under the “separate but equal” doctrine. That decision, Breyer reasoned, “certainly should have been overruled” “because it was a right to treat people equally.” But, Breyer told Carvin, “I can’t find a basic principle here that’s erroneous.”
Questions from the Court’s more conservative Justices confirmed that the more liberal Justices had good reason to be concerned that Friedrichs had the advantage on the merits, as the more conservative Justices displayed skepticism about virtually all of the major arguments proffered in support of the union fees. Arguing on behalf of California, which supported the union, California Solicitor General Edward DuMont emphasized the long history of labor unrest in California in the 1960s, which prompted the state to adopt the current system of unions and fees. California has a critical interest in managing government workplaces, DuMont told the Justices, and it needs to be able to deal with a single union that employees also perceive as adequately representing their interests. The fees at issue in this case serve an important interest in ensuring that such a representative exists, he argued, by providing sufficient and stable funding for the union.
Justice Antonin Scalia voiced sympathy for the state’s need to run its workplaces smoothly, but he was nonetheless dubious about both the need to charge non-members a fee and the consequences if the Court were to strike down the fees. Scalia asked DuMont to explain why public-employee unions would not survive when unions representing federal employees don’t charge non-members similar fees but nonetheless “prosper,” in Scalia’s words. Michael Carvin returned to this point during his rebuttal, reminding the Justices that, in addition to the federal government, twenty-five states already prohibit such fees and were “all fine.”
And Justice Anthony Kennedy downplayed what the union characterizes as a “free rider” problem – the idea that a public employee who declines to join the union that represents him benefits from the union’s work on his behalf without having to pay for it. He told DuMont that “many teachers strongly, strongly disagree with the union’s position.” Charging them a fee, he suggested, doesn’t solve the “free rider” problem, but instead makes them a “compelled rider” on those positions.
Representing the California Teachers Association, David Frederick focused on the nuts and bolts of collective bargaining, explaining that the resulting contracts were “very long, detailed agreements” that covered not only hot-button issues but also more mundane questions like when teachers should arrive at work. All of those questions, he told the Court, require the union to (among other things) conduct legal research and survey its members – the kinds of activities that the fees at issue in this case support. But Scalia countered that, if the union’s work was clearly so important, it should easily be able to convince teachers to join the union instead. And when Frederick emphasized that regulations governing how firefighters in Wisconsin should safely respond to fires were the result of collective bargaining, Roberts retorted that “all of that would still survive” if Friedrichs were to prevail, “unless your basic argument” is that “the unions are going to collapse and not be in a position to negotiate those safety requirements.”
By contrast, some of the Court’s more conservative Justices clearly seemed to buy into a point crucial to Friedrichs’s argument: the idea that, unlike unions in the private sector, the collective bargaining process for public-employee unions is an inherently political one because the salaries and benefits and policies that the union is negotiating affect government budgets. During DuMont’s argument, Scalia told him that “everything that is collectively bargained with the government is within the political sphere, almost by definition,” and Scalia later told U.S. Solicitor General Donald Verrilli, arguing on behalf of the federal government in support of the union, that the government is “not the same as a private employer” – “what is bargained for is all a matter of public interest.” Roberts echoed this sentiment, telling DuMont that “the amount of money that’s going to be allocated to public education, as opposed to public housing, welfare benefits, that’s always a public policy issue.”
Also significant was the attention (or lack thereof) that the Justices paid to the other question in the case: whether a public employee who doesn’t join a union can be required to affirmatively “opt out” to receive a refund of the part of the fee that is not related to collective bargaining. As I explained in my preview<http://scotusblog.us7.list-manage.com/track/click?u=0c05b0842a082a00aa39f4d77&id=f97ae610a8&e=6ae2c04c39> of the case, Friedrichs and the other challengers argue that, instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them. This question only comes into play if the Justices rule against Friedrichs and uphold the fee, but the Justices didn’t seem particularly interested in it – which may imply that the more conservative Justices believe that they have five votes to strike down the fee and won’t need to reach this question at all. We’ll know more in a few months, when the Justices issue their decision; when they do, we will be back to cover it in Plain English.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the law firm.]
Justices return to dispute over union fees for non-members: In Plain English< Justices return to dispute over union fees for non-members: In Plain English> Next Monday, the Justices will hear oral arguments in a case which asks them to overrule a 1977 decision and hold that, even if public employees don’t want to join the union that represents them, they can be required to pay a fee to cover the costs that the union incurs in collective bargaining. It sounds like a relatively mundane question, but the Court’s decision could have a broad impact on the financial health of public-employee unions and possibly even politics more broadly. Let’s talk about Friedrichs v. California Teachers Association<Friedrichs v. California Teachers Association> in Plain English.
To understand the case, you have to start with the current law on public-employee contributions to unions. It is settled that public employees who are not members of the union cannot be required to pay fees that a union would use for political activity like union organizing. But the Supreme Court held in the 1977 case, Abood v. Detroit Board of Education, that they can be required to pay a “fair share” or “agency” fee to cover the union’s costs to negotiate a contract that covers all the public employees, even those who are not union members. The question now is whether to hold that requiring an objecting employee to pay even this more limited fee violates the First Amendment.
If the issue sounds familiar, it may be because the Justices had this exact question before them two years ago. They didn’t rule on the question then, concluding instead that the employees in that case –home health aides, who usually take care of family members and were compensated by the state of Illinois – were not actually public employees. But in their opinion<Harris vs. Quinn>, five Justices suggested that they might be willing to reconsider Abood.
The case now before the Court was brought by (among others) a group of California teachers who object to having to pay any fees at all – even for collective bargaining – to the teachers’ union there. They argue that, when you are talking about public employees, even something like collective bargaining is inherently political, because the salaries and benefits that the union is negotiating come out of the public budget. Therefore, they contend, being required to pay to support that collective bargaining violates the First Amendment, because they are being required to identify with a political cause – which is precisely what the Court in Abood said that they cannot be required to do.
California and the teachers’ union (as well as the United States, which filed a “friend of the Court” brief supporting them) counter that the fees charged to non-members are necessary to make sure that the union has enough money to carry out its duties for all of the employees that it represents. Charging non-members for the costs of collective bargaining also avoids a “free-rider” problem – a scenario in which the non-members receive the benefits of the union’s collective bargaining work without having to actually pay for it. And there is no risk, they contend, that anyone will believe that a non-member agrees with the union’s collective bargaining positions just because he is required to pay a fee to fund that bargaining; in any case, though, Friedrichs and her fellow teachers are free to publicize their own, contrary views.
California and the union also argue that, putting everything else aside, they should prevail because the teachers have not met the high bar that is normally needed to justify overruling one of the Court’s earlier cases. They warn that, in the nearly four decades since the Court’s decision in Abood, “literally tens of thousands of contracts governing millions of public employees have been entered into in reliance on” that ruling; reversing course now, they said, would upset that system, even though Friedrichs and the other plaintiffs have not shown that there is a real problem with the system.
If the Court were to rule for Rebecca Friedrichs and the other teachers challenging the fees, the impact could be very significant not only for the California Teachers Union but also for any other union that represents public employees who are required to pay fees to cover collective bargaining. If employees don’t have to pay the fees (which, the teachers say, can be “roughly two percent of a new teacher’s salary” in California), it is likely that many of them won’t – which could in turn lead to substantially more precarious financial situations for many public-employee unions. And although the fees now at issue before the Court are not used for politics and lobbying, less money in the unions’ coffers could mean a smaller role on the political stage for organized labor, which by one estimate spent $1.7 billion<Koch Brothers . . .> during the 2012 election cycle. So the stakes next week are high indeed.
Even if the Court ultimately concludes that public employees who are not members of a union can nonetheless be charged an “agency” or “fair share” fee, Friedrichs and her fellow teachers could still prevail on a second, “fallback” issue. Under California law, the fees charged to non-members may also include some other expenses not related to collective bargaining. A non-member who doesn’t want to pay for those expenses can receive a refund or reduction of that part of the fee if he gives the union written notice of his objection. But the challengers in this case argue that the system has it backwards: instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them. California and the teachers respond that, from an administrative perspective, it is more efficient for the government to require non-members to opt out of the additional fees, particularly when most non-members do pay the fees and the process to opt out is not difficult. On this point, the United States adds that an “employee who is willing to exert even the minimal effort necessary to check a box and mail in a form suffers no cognizable First Amendment harm.”
Although the plaintiffs in this case would certainly take a victory on the “fallback” question over no victory at all, it would be a somewhat hollow win, as the case was filed specifically in the hope of getting the Court to overrule its decision in Abood. One thing to watch for at Monday’s argument will be how much time the Justices spend on the “opt-in/opt-out” question; if the Court’s more conservative Justices don’t seem that interested, it may be because they think they have enough votes to overrule Abood altogether. We’ll be back on Monday afternoon to report on this issue and the rest of the oral arguments in Plain English.
