Justices return to dispute over union fees for non-members: In Plain English

Amy Howe 

Editor/Reporter

January 5th, 2016 4:46 pm

Next Monday, the Justices will hear oral arguments in a case which asks them to overrule a 1977 decision and hold that public employees who don’t want to join the union that represents them also can’t 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 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, 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 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.