Fate of Public Unions at Heart of SCOTUS Debate

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By Kimberly Robinson

Jan. 11 — The U.S. Supreme Court seemed primed to take down a decades-old precedent and deal a potentially significant blow to public sector unions at oral argument Jan. 11.

The court was asked to overturn on First Amendment grounds its 1977 decision allowing public unions to extract so-called agency fees from non-union members for collective bargaining activities, Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

The potential loss of funding could be devastating to public unions, though some argue that it will simply require those unions to prove to potential members that representation is worth the cost of dues.

During the arguments, several of the justices were concerned that public employees—here teachers—were being forced to subsidize speech they didn't agree with.

Justice Anthony M. Kennedy in particular stressed that some teachers were being forced to financially support the union's position on merit pay and teacher tenure, even though they might vehemently disagree with that position.

But the best hope of saving public union agency fees might be the mere fact that Abood has been around for four decades.

Overturning precedent is “quite a big deal,” Justice Stephen G. Breyer said.

He said he was concerned about the court's role in society. If the court starts “overruling things, what happens to the country thinking of us as a kind of stability in a world” that “changes a lot.”

Stare Decisis for Stare Decisis Sake?

Justice Elena Kagan told Jones Day's Michael A. Carvin, who argued on behalf of the teachers challenging the agency fees, that he had a “heavy burden.” Though that is always the case when a party asks the court to overturn its precedent, it “seems to be particularly true here,” she said.

Tens of thousands of collective bargaining contracts governing millions of employees have been negotiated in reliance on Abood, she said. “So what special justification are you offering here” to overturn Abood, Kagan asked.

Abood erroneously denied a fundamental right, Carvin said. The court has said that “the right of the citizen not to be subject to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Carvin argued.

Stare decisis is the doctrine of deciding a case based on principles set out in previous cases.

So there doesn't need to be a special justification to overturn a case like that, he said.

That started a firestorm with some of the justices, with Kagan saying that was “extremely difficult” for her to understand.

There “are dozens of cases where this court has denied individual rights,” Breyer said to Carvin.

“And you're saying all those cases are now free of any stare decisis inhibition. Is that the point, or is it just labor unions?” Breyer asked.

Even Kennedy—who at times appeared annoyed by the arguments made in support of agency fees—said facetiously “let's assume that stare decisis is an important consideration for the court.”

No More Bar Dues?

With that suggestion in mind, Breyer said it was clear that Plessy v. Ferguson, 163 U.S. 537 (1896), had to be overturned, referring to the court's landmark decision upholding racial segregation in public facilities. That was “basic,” Breyer said.

One the other hand, Breyer said to Carvin, “You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with. I don't see anything too basic in the lines you're drawing there,” Breyer said.

Founding father Thomas Jefferson said compelling people to give money to which they don't want to give is “sinful and tyrannical,” Carvin responded. “So it's not at all something that we've invented,” he said.

But that would call into question a number of our other precedents, Justice Ruth Bader Ginsburg said. As an example she pointed to the court's 1990 decision permitting “integrated bars”—those organizations that require attorneys to pay membership dues in order to practice law—in Keller v. State Bar of Cal., 496 U.S. 1 (1990).

Bar associations take positions all the time that lawyers disagree with, Kagan said.

Suppressing Speech

Edward C. DuMont, the Solicitor General of California—whose law allowing agency fees is at issue in the case—acknowledged that there are First Amendment concerns with agency fees. But they are necessary for labor peace, he argued.

“There was a long history in California in the '50s and 1960s of labor unrest,” DuMont said.

Unions have alleviated some of that strife. But to ensure that the union has the resources it needs, and to prevent so-called free riders from shirking union fees, the state needs to be able to force public employees to pay their share of the collective bargaining process, DuMont said.

However, the idea of the government forcing employees to subsidize speech they strongly disagreed with appeared to be too much for several justices—most notably Kennedy.

Responding to DuMont's point that union representation and agency fees are a more workable system, Kennedy said “we could assume that a state is always benefitted and is more efficient if it can suppress speech.”

He added that teachers who disagree with the union's positions aren't free riders. “The union basically is making these teachers compelled riders for issues on which they strongly disagree.”

Death Knell?

Justice Antonin Scalia said he sympathized with the state's need to achieve labor peace. Scalia is a closely watched vote in this case because he has written favorably about Abood in past decisions. Still, he seemed unsure if agency fees were necessary for union survival.

In response, David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC, Washington—who argued on behalf of the unions—noted that more than 20 states have adopted laws that allow agency fees.

He pointed out that several amicus briefs were filed from the management side in support of agency fees because it is a superior system.

But Carvin noted that there are 25 right-to-work states that don't allow agency fees. Not one union has gone under because of it, Carvin said.

U.S. Solicitor General Donald B. Verrilli Jr. also argued for the federal government as amicus curiae in support of agency fees.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Transcript at http://src.bna.com/bXQ.