At Supreme Court, Ominous Signs for Public-Sector Unions

The justices seemed likely to rule that certain union fees violate the First Amendment.

The Su­preme Court signaled Monday that it’s pre­pared to deal a ma­jor blow to pub­lic-sec­tor uni­ons—and may over­turn one of its own pre­ced­ents in the pro­cess.

Most of the justices seemed to be­lieve that pub­lic-sec­tor em­ploy­ees who don’t join a uni­on should not have to pay fees that sup­port the uni­on’s ne­go­ti­ations. Those “agency fees,” from the uni­ons’ per­spect­ive, are aimed at free riders—em­ploy­ees who be­ne­fit from the con­tracts uni­ons ne­go­ti­ate without pay­ing the dues that make those ne­go­ti­ations pos­sible.

The Su­preme Court signed off on those fees in 1977, but it has been chip­ping away at that rul­ing re­cently and now might be ready to over­turn it al­to­geth­er. And things looked de­cidedly bleak for uni­ons at the Su­preme Court on Monday, when the justices heard or­al ar­gu­ments in a law­suit fled by a Cali­for­nia teach­er who isn’t a mem­ber of the teach­ers’ uni­on and does not want to help pay for its ad­vocacy activ­it­ies.

“The uni­on, ba­sic­ally, is mak­ing these teach­ers com­pelled riders,” Justice An­thony Kennedy said Monday.

Re­becca Friedrichs, the plaintiff in Monday’s case, says agency fees vi­ol­ated her First Amend­ment by for­cing her—and oth­er nonunion­ized em­ploy­ees—to sub­sid­ize the uni­on’s polit­ic­al ad­vocacy.

If the high court agrees, its rul­ing would be an enorm­ous loss for pub­lic-sec­tor uni­ons, cut­ting off a sig­ni­fic­ant fund­ing stream as they face in­creas­ingly ag­gress­ive cri­ti­cism from con­ser­vat­ives at the state level.

Twenty-three states al­low pub­lic-sec­tor uni­ons to col­lect agency fees. Non­mem­bers can’t be forced to pay for uni­ons’ ex­pressly polit­ic­al activ­it­ies; their fees are only sup­posed to fund col­lect­ive bar­gain­ing.

But in the pub­lic sec­tor, crit­ics ar­gue, it’s hard to draw the line between a col­lect­ive-bar­gain­ing is­sue and a polit­ic­al one. For ex­ample, Kennedy said, teach­ers’ uni­ons’ ad­vocacy against mer­it pay is a work­force is­sue, but also a pub­lic-policy ques­tion, and in­di­vidu­al teach­ers might dis­agree with the uni­ons. Per­haps that’s why they’re not mem­bers.

“What is bar­gained for is, in all cases, a mat­ter of pub­lic in­terest,” Justice Ant­on­in Scalia said Monday.

Dav­id Fre­d­er­ick, the at­tor­ney rep­res­ent­ing the uni­ons, ar­gued that their con­tracts cov­er a host of apolit­ic­al work­place is­sues, such as lunch breaks and start times, not just con­ten­tious ones such as mer­it pay and per­form­ance stand­ards.

“I sup­pose if that’s so con­vin­cing, the uni­on can per­suade teach­ers to join the uni­on,” Kennedy replied.

The Su­preme Court up­held pub­lic-sec­tor agency fees in 1977 in Abood v. De­troit Board of Edu­ca­tion. And the Court’s lib­er­al justices ar­gued strenu­ously Monday that the Court should not over­turn that pre­ced­ent—a step the Court rarely takes, and which usu­ally re­quires it to find a grave er­ror in its ori­gin­al rul­ing.

“You start over­turn­ing things, what hap­pens to the coun­try view­ing us as a sort of sta­bil­ity?” Justice Steph­en Brey­er asked.

But if those con­cerns piqued Kennedy’s in­terest, he didn’t show it. Kennedy, the Court’s swing vote, spent sig­ni­fic­antly more time Monday on the chal­lengers’ First Amend­ment ar­gu­ment, sug­gest­ing re­peatedly that pub­lic-sec­tor bar­gain­ing agree­ments are dif­fer­ent—and more polit­ic­al—than stand­ard em­ploy­ment ne­go­ti­ations.

(Image via mdgn/