Is negotiating work conditions a form of political speech? And is paying a fee to the union that negotiates those conditions for you a violation of the First Amendment? The answer, to be considered by the Supreme Court Monday as it hears arguments in Friedrichs v. California Teachers Association, could vastly change the employment landscape in the United States, potentially diluting the resources and reach of unions that represent public employees.
The case was brought by a group of California teachers who do not wish to join the union and who object to paying what unions call a “fair share” fee to cover the cost of the union negotiating a contract on their behalf. California law already allows them to opt out of paying for any unquestionably political activities, but in addition to asking the court to free them from the “fair share fees,” the teachers have also asked the court to make any fee to the union opt-in instead. The plaintiffs also include a conservative Christian teachers’ group, Christian Educators Association International, which The American Prospect’s Sarah Posner reported has a rather different interpretation of the First Amendment when it comes to separation of church and state in public schools. They see unions as one of the impediments to more overt expressions of Christianity in public schools.
According to the National Conference of State Legislatures, 25 states, known as “right to work” states, already make any fees to a union optional, vastly reducing union resources. Civil rights groups, including the National Women’s Law Center, have asked the court to keep California’s law and others like it in place, saying unions have been “one of the most successful vehicles for providing economic and professional opportunities for American workers, and, in particular, for women, people of color, and lesbian, gay, bisexual, and transgender (“LGBT”) workers.” Business groups, libertarian legal scholars, and Republican legislators have lined up behind the plaintiffs.
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The Supreme Court has long held that with proper protections, states can pass laws allowing public sector unions to charge fees to collectively bargain. But the five Republican appointees on the Supreme Court have repeatedly hinted that they’re open to overturning the court’s precedent on the matter, most recently in the 2014 case Harris v. Quinn. That case involved Illinois home health care workers who, the court determined, could not be considered state employees. That may have made the case an imperfect vehicle for overruling Abood v. Detroit Board of Education, the 1977 case that first approved the agency fees structure. The four Democratic appointees of the court dissented in Harris v. Quinn, with Justice Elena Kagan writing in defense of the 1977 precedent, “While protecting an employee’s most significant expression, that decision also enables the government to advance its interests in operating effectively.” But Justice Samuel Alito’s opinion for the court several times signaled the conservatives’ distaste for the Abood case, citing “the bedrock principle that, except perhaps in the rarest of 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.”
Hence the plaintiff’s arguments that collective bargaining itself is ideological speech, even if it involves the terms of a workplace. “This annual tribute 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,” they write in their brief. “That regime presents the basic question whether the First Amendment permits states to compel their public-school teachers to fund specific, controversial viewpoints on fundamental matters of educational and fiscal policy.” They add, “Yet California and more than twenty other states compel millions of public employees to pay hundreds of millions of dollars to fund a very specific viewpoint on these pressing public questions, regardless of whether those employees support or benefit from the union’s policies.”
For their part, the union argues that the court should stick to its guns in the Abood case, which argued that allowing unions to charge non-members for collective bargaining promoted the labor peace. “By permitting collective-bargaining agreements requiring non-union workers to contribute to collective-bargaining costs, agency-shop statutes promote fairness and reduce discord among employees, resulting in a more productive workforce,” they write. Upending that arrangement, they argue, “will throw into disarray tens of thousands of collective-bargaining agreements governing millions of teachers, police officers, firefighters, first responders, and other public employees.” The bottom line, they say, is this: “Forcing unions to carry the interests of non-members for free – and giving each employee a financial veto if they disagree with the union on even a single issue – would dramatically undermine unions’ effectiveness in serving as a public employer’s exclusive bargaining partner.”
The state of California, represented by Senate candidate and Attorney General Kamala Harris, has intervened in the case, siding with the unions and urging the court not to “disturb settled law that has long permitted individual States to make their own choices concerning whether to use mandatory agency fees to serve important interests of the government as employer.”