WASHINGTON — The Supreme Court kicks off the new year Monday seemingly poised to deal a major blow to the nation's public employee unions by wiping out, or at least weakening, a legal precedent that dates back nearly four decades.
If the justices' recent rulings against organized labor are any guide, a deeply divided court is likely to make it harder for unions representing teachers, police and firefighters, and other government workers to collect fees from non-members.
Such a ruling would come in the middle of an election year in which unions are overwhelmingly aligned with the Democratic Party. It could elevate bread-and-butter issues such as the minimum wage and income inequality on the political agenda, which has been dominated lately by the threats of international terrorism, illegal immigration and guns.
The case, Friedrichs v. California Teachers Association, which the Supreme Court will hear oral arguments for on Monday, represents the biggest legal threat to labor unions in decades. Memberships have been in decline since the end of World War II, when 35% of American workers were in unions. By 2014 that number had dropped to just 11%, although public employee unions still represent nearly 36% of government workers.
If the justices rule that the free speech rights of non-members entitle them to contribute nothing to the costs of representation — they already can opt out of financing unions' political activities — more workers are likely to become "free riders." That would lead to a drop in membership and revenue that could jeopardize existing collective bargaining agreements. More lawsuits challenging unions' exclusive bargaining rights with public employers would be sure to follow.
“This is very serious,” National Education Association President Lily Eskelsen Garcia says. "They’re trying to rob us of our resources.”
Some go further and warn of an existential threat to the nation's labor union movement. “This could be the death knell for public unionism in the United States," says David Strauss, a law professor at the University of Chicago Law School.
The 325,000-member California Teachers Association, which spends more on politics than any special interest group in the state, warns in its high court brief that tens of thousands of contracts governing millions of workers nationally could be thrown "into disarray." More than 4.5 million teachers are union members.
"We would still be obligated to represent everybody in the workplace," says Pankaj Sharma, a high school history teacher and union member in Skokie, Ill. "It would be very difficult to maintain what we are trying to do now.”
The lawsuit was brought by the conservative Center for Individual Rights, which along with the National Right to Work Legal Defense Foundation has sought to overturn a 1977 Supreme Court decision that allowed public employee unions to collect "fair share" fees from non-members for the costs of collective bargaining.
“We wanted to take on the most powerful public employee union in the country,” says Terence Pell, the center's president. If the court strikes down fair share fees, he says, “It’s our hope that the unions will become more accountable to their members.”
States equally divided
Rebecca Friedrichs, the elementary school teacher who is the lead plaintiff, was motivated to work against her union after spending several years as an officer and finding its leadership unwilling to consider her suggestions. She opposes tenure laws that make it harder to fire bad teachers, seniority rules that ignore merit — even salary increases that lead to larger class sizes.
“For the union, salary and seniority come always — always — ahead of everything else,” Friedrichs says.
The battle divides the nation almost equally between states where laws govern collective bargaining for public workers and those where workers can't be forced to join unions or contribute to them.
Defenders of the current system contend that so-called "right to work" laws, in states mostly led by Republicans, lead to inferior education and public services. Average test scores are lower for students in those states on fourth- and eighth-grade math and reading proficiency tests. A brief filed by 21 states led by Democrats says fair-share fees lead to improved government efficiency and labor peace.
“Fair share fees are important to give everybody skin in the game," says Anisha Dasgupta, New York's deputy solicitor general. Allowing non-members to avoid all fees, she says, "can cause workplace tension."
Moreover, a brief submitted on behalf of public safety unions says a defeat "risks setting in motion a union 'death spiral' — as membership drops, the union will have to increase dues to cover its expenses, which will create further incentives for additional workers to quit the union."
The challengers don't buy any of those arguments. Mark Mix, president of the National Right to Work Legal Defense Foundation, says those who oppose their local unions but are forced to pay hundreds of dollars annually to support them "are not free riders. They're captive passengers."
Michigan and 17 other Republican-led states told the court that all collective bargaining at the government level amounts to lobbying, with taxpayers paying for the results. They blame union contracts for municipal bankruptcies from Detroit to Stockton, Calif.
The high court's 1977 ruling in Abood v. Detroit Board of Education upholding union payments by non-members was unanimous, but the current court has moved away from it in two recent cases.
In 2012, the justices ruled 7-2 that a California public employee union could not impose an additional fee on workers without their assent. In 2014, they ruled 5-4 that Medicaid-funded home-care workers in Illinois did not have to pay dues to public employee unions.
While neither case overruled Abood, the writing may be on the wall. Justice Samuel Alito wrote in 2014 for the court's conservative majority that except in rare circumstances, "No person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support."
The court's more liberal justices, however, are likely to oppose any change vociferously. Justice Elena Kagan warned during oral arguments in the most recent case that a decision against fair-share fees "would radically restructure the way workplaces across this country are run."
There are at least four reasons why the court could stop short of a landmark decision reversing the 39-year-old precedent:
• Justice Antonin Scalia could be a swing vote, having written in a case decided 25 years ago that public employee unions should be able to collect from non-members to perform statutory duties as exclusive bargaining agents.
• The court in general has been reluctant to overturn its own precedents. Two years ago, it surprised experts by refusing to throw out a much-maligned, 25-year-old ruling allowing class-action lawsuits for securities fraud based solely on investors' trust in market prices.
• Lawyers representing the dissident teachers have offered a fallback position. Rather than having non-members opt out of paying for political activities each year, they say workers should opt in — a voluntary action fewer of them are likely to take.
• And finally, the court's lawyers may pay particular heed to warnings that if they let public employees off the hook for union fees, lawyers may be next. A brief submitted by 21 past presidents of the District of Columbia bar warns that lawsuits against mandatory bar dues would distract the groups from "regulating the legal profession and improving the quality of legal services."
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