Supreme Court Appears Skeptical of Mandatory Public Employee Union Fees
Author: David B. Weisenfeld, XpertHR Legal Editor
January 13, 2016
The Supreme Court heard a significant labor case this week that could put the future of public employee unions in doubt. In Friedrichs v. California Teachers Association, a majority of the Court's justices appeared ready to agree with a group of California teachers that claim their free speech rights are being violated when they are compelled to pay dues to the state's teachers' union.
Since the Court's 1977 ruling in Abood v. Detroit Board of Education, unions generally have been allowed to collect dues from all employees that they represent, so long as the dues are being used for collective bargaining, contract administration or grievance adjustment purposes. However, those who object are not required to pay for political or lobbying activities.
Unions claim that the practice of collecting dues from all workers is crucial to their survival. They argue that requiring public employees to pay these fees is needed to prevent a "free-rider" problem of workers who benefit from collectively bargained higher wages without having contributed to the negotiation cost.
California Solicitor General Edward Dumont took a position supporting the teachers' union, telling the Court, "As employers, we're trying to reach workable agreements to govern particular workplaces for particular periods of time." While noting that many of the agreements are controversial, Dumont said, "We need to have concrete decisions with one group of employees represented by one union to do that."
But Michael Carvin, representing the group of objecting teachers, told the Court that the agency dues do not just go to collective bargaining but also go to political activity. "If this regime is upheld," Carvin said, "tomorrow the State of California could say every public employee contributes one percent to the governor's reelection campaign unless they affirmatively opt out of doing so." Similarly, he argued that the union cannot require people to contribute who do not wish to do so.
Justice Elena Kagan noted that overturning Abood could affect millions of employees and disrupt tens of thousands of labor contracts. But the tenor of the questioning indicated that several of her colleagues were unconvinced by the union's argument.
For instance, Justice Antonin Scalia wondered aloud why the union would not survive without the fees charged to nonmembers. He asserted that federal employee unions do not charge agency fees to nonmembers and yet still prosper. And Justice Anthony Kennedy, a frequent swing voter on the Court, said, "The union basically is making these teachers compelled riders for issues on which they strongly disagree."
Public employee unions came close to losing their ability to compel fees from nonmembers in the 2014 case of Harris v. Quinn, but the Court stopped short of doing so. Should the justices overrule Abood, it could change the landscape of public sector unions nationwide.
A decision is expected before the end of the Supreme Court's term in June.