Employment Law Daily Public-sector agency fees get a rigorous airing at Supreme Court argument
Wednesday, January 13, 2016

Public-sector agency fees get a rigorous airing at Supreme Court argument

By Pamela Wolf, J.D. Unions faced a tough day on January 11 when the Supreme Court heard arguments in Friedrichs v. California Teachers Association, a case that carries critical implications for public-sector unions and their very ability to remain viable. In the private sector, there has been much headway in eliminating agency shop fees, particularly in the South, where so-called right-to-work laws in many states bar any requirement that employees either join a union or pay a fair-share service fee—an “agency fee”—that is generally the same amount as union dues. The petition for certiorari in the Friedrichs case questions whether public-sector employees can be required to pay agency fees, which is permitted under California law. Below, relying on the High Court’s 1977 ruling in Abood v. Detroit Board of Education that state employees may be compelled to pay agency fees to public-sector unions, a district court in California entered judgment on the pleadings in favor of the CTA, and the Ninth Circuit summarily affirmed. You can represent us … Responding to an inquiry from Justice Ginsburg, the petitioners’ attorney, Michael Carvin, made clear that the teachers don’t have a problem with the union being the exclusive bargaining representative, but they objected to being “forced to subsidize that exclusive representation.” What about all the contracts in place? Pointing to what’s at stake in the case, Justice Kagan noted that the teachers carried a heavy burden, as is always the case when the Court is asked to overrule a decision, but particularly so in this case. The teachers would like the Justices to overrule Abood. “This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees,” Kagan said, asking Carvin, “what special justification are you offering here?” The Justices and the petitioners’ attorney spent considerable time discussing how union contracts and union fees already paid would be handled, and perhaps refunded, should the Court overturn Abood. Sorting it out would be complicated at best. David Frederick, on behalf of the union respondents, told the Justices, “Overruling Abood now would substantially disrupt established First Amendment doctrine and labor-management systems in nearly half the country.” Much more than just union contracts are at issue, he noted, including histories, research, and ways of dealing between public-sector unions and employers. Stare decisis. Carvin argued that there were two reasons for overturning Abood: First, Abood erroneously denies a fundamental right; it doesn't expand a fundamental right. And as the Court made clear in Gant, the right of the citizen not to be subject to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis, he stressed. But Kagan seemingly rejected that reason, saying she found it hard to understand that the idea that every time the Court denied a claim of right, whether First Amendment or Fourth Amendment, the denial of the claim would lack any stare decisis effect. The Court does that tens of time every year, the Justice pointed out. Acknowledging that the teachers’ position that where the initial decision denied a claim of right, no special justification is required to overturn Abood, she added that it was “an extremely difficult concept to understand” and that it “would take away stare decisis effect from … hundreds, thousands of our decisions.” Responding later to Justice Breyer’s concerns about overruling earlier decisions and the other decisions that might necessarily fall, as well as the Court’s role in providing stability in a world that is tough because it changes so much, Carvin got to his primary reason for overruling Abood—that “all of the rationales offered in support of Abood’s result directly conflict with other precedent of this Court.” What’s good for private employers is good for government ones? From very early on in his argument, Carvin faced a very fundamental question posed first by Justice Kagan, and later by Justice Sotomayor: Why should we treat a government employer differently than a private employer? Private employers are permitted agency shop arrangements. Edward Dumont, on behalf of the Attorney General of California, arguing later, said that while First Amendment interests are involved in the case, the state “also has critical interests in being free to manage the public workplace, much like a private employer, unless [it] is improperly leveraging the employment role to coerce or suppress citizens' speech.” First Amendment restricting vs. subsidizing. Justice Kagan was not persuaded by Carvin’s argument drawing a sharp distinction in First Amendment jurisprudence between restricting speech, which the government is permitted to do, and subsidizing speech. “And I had always thought that these were two sides of the same coin, that compelled speech is … no less and no greater an offense than compelled silence,” said Justice Kagan. According to Carvin, however, they are treated differently because they are two different types of infringements. Justice Sotomayor said, “You just earlier said, and I think our … cases are replete with the point that as employer, the government can already restrict speech, which is, I think, a higher problem than subsidization. We've already permitted subsidization of bar associations, of government programs. We've permitted assessments on a lot of different levels, so why can't the government, as employer, create a state entity? Because this union under California law is a state entity.” Are free-riders really a problem? Pointing to the free-rider concern raised in earlier argument, Chief Justice Roberts suggested that the issue was insignificant if employees have overwhelmingly shown that they want collective bargaining. Dumont, disagreed, saying, “[p]eople can want something in the sense they view it as very advantageous to themselves, but if they are given a choice, they would prefer to have it for free, rather than to pay for it.” He called it a “classic collective action problem.” Turning to the employer’s viewpoint, Dumont said the state wanted a single union to deal with all employees, and so the state requires it to deal with all employees fairly, whether or not they supported the union. “And it’s important then, from the employer’s point of view, that that representative be adequately funded and stably funded, so that they can work with us or work with the employer to reach actual progress.” Agency fees do more than you think. Frederick also pointed to Wisconsin, where the legislature did away with agency fees for school teachers and government workers, but not for public safety officers, police officers or firefighters, because there was a legislative interest in having agency fees. He noted that, according to the firefighters’ brief in this case, many states do not have safety regulations for firefighters. In those cases, many regulations come through the collective bargaining process where rules are negotiated regarding safe ways to fight fires. In their brief, the firefighters said it is essential to have agency fees because the fees are used to benefit all workers in the unit by getting additional equipment or training that the county may not be able to afford. Frederick also pointed to briefs filed in the case that said there were frequent strikes in New York until the agency fee process was put into place. Said Justice Scalia, “Why would agency fees enable the city to do things that it couldn’t do before?” Frederick responded: “Because it enables all of the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with the employer.” Opting in or out. Frederick faced spirited questioning from the Justices about the potential First Amendment violation in requiring public employees to affirmatively object to subsidizing non-chargeable speech by public-sector unions, rather than requiring them to affirmatively consent to such speech, and as Justice Kennedy put it, about the “whole class of persons whose speech has been silenced.” All union eyes, public and private sector alike, will be watching for the Court’s decision.

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