Friedrichs Amicus Briefs Pour Into High Court

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By Lawrence E. Dubé

Nov. 19 — Dozens of organizations, labor unions, state governments and academics, have rushed to offer the U.S. Supreme Court their views before the court decides a major case on the ability of unions to maintain “agency shop” agreements that require public employees to contribute to the cost of union representation.

In a closely watched contest, the court will decide next year whether to overrule a 38-year-old precedent and hold that public sector agency or “fair share” agreements violate the First Amendment rights of government employees. Such provisions require as a condition of employment that employees who choose not to be union members pay agency fees for the union's expenses related to collective bargaining, contract administration and grievance adjustment.

The court has also agreed to consider whether the First Amendment requires that public employees individually consent to paying a share of union expenses that are not chargeable to representation, such as political activity, rather than individually objecting to such payments.

More than 20 groups have filed briefs supporting the legal challenge brought by California teacher Rebecca Friedrichs and other employees. But some state and local governments and officials argued that collective bargaining is a valuable benefit for public employers and that union representation should continue to be financed by the employees who are represented by public sector unions.

First Amendment Challenge

The case arose on a challenge by Friedrichs and other California teachers of the agency-fee arrangement between the California Teachers Association and public school districts.

The U.S. Court of Appeals for the Ninth Circuit rejected the challenge, but Friedrichs and the other employees requested Supreme Court review, arguing the court should overrule Abood v. Detroit Board of Education, 431 U.S. 209, 95 LRRM 2411 (U.S. 1977), which held that such agency-shop arrangements in the public sector pass muster under the First Amendment if nonmembers' agency fees go solely toward the costs of bargaining, contract administration and grievance adjustment.

The high court granted the petition on June 30.

High Court Scrutiny of Public Sector Agreements

The Supreme Court has heard several cases in recent years raising First Amendment challenges to agreements requiring dues payments from public employees.

In Knox v. Service Employees Local 1000, 132 S. Ct. 2277, 193 LRRM 2641 (2012), the court held that public sector union members had to be given an opt-in system for special assessments and dues increases rather than an opportunity to opt out of such charges.

In Harris v. Quinn, 134 S. Ct. 2618, 199 LRRM 3741 (2014), the court held that personal care assistants paid by the state of Illinois but mostly supervised by the home care recipients they serve were not “full-fledged” public employees who could be compelled to pay union dues or fees.

Importantly, Justice Samuel Alito wrote for the majority in Harris that the reasoning underlying Abood is “questionable on several grounds,” but the court stopped short of overturning its almost 40-year-old precedent.

California Teacher Objects to Fee Arrangement

In her principal brief on the merits of the case, Friedrichs argued that requiring public employees to make payments to unions “subsidizes those unions for the quintessentially political act of extracting policy commitments from local elected officials on some of the most contested issues in education and fiscal policy.”

Friedrichs argued, “In this era of broken municipal budgets and a national crisis in public education, it is difficult to imagine more politically charged issues than how much money local governments should devote to public employees, or what policies public schools should adopt to best educate children.”

The California teachers rejected the argument that unions should be able to collect fees from employees because they have a duty to represent such workers. “[T]hat ‘duty' is simply a necessary, minor limit on the exclusive-representation power that unions voluntarily assume,” the teachers argued.

NRTW Backs Bid to Overrule Abood

The National Right to Work Legal Defense Foundation filed an amicus brief in support of Friedrichs and the other petitioners, and argued that the Supreme Court has already “come close to abandoning its 1977 Abood ruling.”

“This Court has already identified why Abood should be overruled: because collective bargaining with government is a political activity and because Abood is unworkable in practice,” the foundation wrote. It said Abood relied on a mistaken or outdated premise that allowing agency-fee arrangements was essential to preserving a system of public sector collective bargaining.

Abood’s assumption is unwarranted because the extraordinary powers and privileges that come with being an exclusive representative are their own reward, which unions will assume without compulsory fees,” the group wrote. “Just as there is no need to bribe children with ice cream to induce them to eat cake, there is no need to offer compulsory fees to induce unions to be exclusive representatives.”

AFL-CIO, AFSCME Defend Precedent

On the other side of the legal dispute, the AFL-CIO and the American Federation of State, County and Municipal Employees joined in a brief arguing that Abood struck the right balance and that it supports labor stability, while allowing dissident employees to exercise First Amendment rights.

“So long as the fee payer is given a reasonable opportunity to express dissent and refrain from subsidizing the nonchargeable activity, the First Amendment is satisfied,” the labor organizations said.

The brief also argued that public sector employers and unions need not “presume” that employees have dissenting views about unions and union representation and that requiring an employee to register an objection to union fees is not a substantial burden.

Civil Rights Groups Argue Importance of Unions

The National Women's Law Center, in a joint brief with other civil rights and employment rights groups, argued that the emergence and survival of public sector labor organizations has been important to women and racial minorities. The rule established in Abood has preserved a “path to the middle class” for public employees, the groups said.

In Harris v. Quinn, the groups pointed out, the justices stopped short of overruling Abood. Doing so now, they argued, “would cause disarray and uncertainty about the continuing validity of thousands of collective bargaining agreements, and even modest levels of free-riding would make established collective bargaining relationships less stable and effective, and limit opportunities for workers.”

“At worst,” the groups warned, overruling Abood “would fatally impair the ability of states to authorize collective bargaining in the public sector because free riding would become so prevalent that under-funded unions would not be able to effectively negotiate and enforce collective bargaining agreements.”

Legislators See Policy Choice for States

A group of 47 current and former Republican state legislators and one former Republican congressman joined in a brief telling the justices that “nothing in the Constitution prohibits the agency fee arrangements at issue in this case and that whether these arrangements are good policy is a decision that belongs to the relevant state and local governments.”

[A]mici have a strong interest in avoiding the significant disruption to carefully calibrated labor schemes that would result in the nearly half of States that permit agency fees if this Court were to conclude that these agency fee arrangements are no longer valid,” the lawmakers wrote.

Arguing that it would be “plainly wrong” to take the issue of agency fees in public sector systems away from the states, the group wrote that “they and their colleagues in state government are best positioned to determine what regime will work best in their States.”

Stating “Abood is no outlier,” the legislators contended the decision “simply reflects basic well-recognized First Amendment principles” that have given governmental employers wide discretion in the management of state and local personnel matters.

Solicitor General Backs Abood

The federal government also weighed in with an amicus brief supporting the California Teachers Association and other respondents in the case.

Abood was effective in addressing a “free rider” problem that the brief said “petitioners fundamentally misunderstand.”

“The problem,” the brief authored by the solicitor general and Labor Department lawyers said, “is not merely that employees who object to the union’s bargaining positions will ‘free ride' on the union’s efforts. Rather, even the employees who favor the union’s positions will have no incentive to fund the union if they can reap the benefits of the union’s work without spending a dime.”

Abood, the government said, recognized a right of public employers to conclude that “agency-shop agreements significantly promote their vital interest in productive collective-bargaining relationships, ameliorate the workplace resentments that could arise if union members are required to shoulder the costs of attaining benefits for other employees, and foster a productive and effective public workforce.”

The solicitor general has asked the court's permission to participate in oral argument in the case, which has not yet been scheduled. Friedrichs has until Dec. 14 to file a reply brief with the court.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the Supreme Court briefs of the parties and amici are available at http://src.bna.com/bap.