Supreme Court seems sure to rule against unions

The Supreme Court left little doubt Monday where it stands on forcing teachers and government workers to contribute to public employee unions against their will: It’s ready to strike the requirement down.

The court’s more conservative justices sharply criticized the current system in which public employees in 23 states and the District of Columbia must pay for the cost of collective bargaining, even if they disagree with their unions’ demands. The problem, those justices said, is that virtually everything the unions do affects public policy and tax dollars.

“Everything that is collectively bargained with the government is within the political sphere, almost by definition,” said Justice Antonin Scalia, seen as the lone conservative who might side with the unions because of past statements.

When lawyers for California and its teachers union cited more mundane collective bargaining issues such as mileage rates and public safety, Chief Justice John Roberts objected. “It’s all money,” Roberts said. “The amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

Their comments and others from justices who previously have criticized the practice of compelling union fees made it clear that the court is likely to strike down its nearly 40-year-old precedent allowing unions to impose such requirements on non-members. That would make it harder for unions representing teachers, police and firefighters, and other government workers to maintain their power by affecting their pocketbooks.

The ruling, expected by late June, will 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. And it could energize the Democrats’ union base, as Supreme Court defeats often do.

The case, Friedrichs v. California Teachers Association, represents a major threat to public employee unions that still represent nearly 36% of government workers — far more than the plummeting average for unions overall. Only 11% of Americans belonged to unions in 2014.

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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.

“If they are given a choice, they would prefer to have it for free, rather than to pay for it,” California Solicitor General Edward DuMont, siding with the unions, told the justices.

But Justice Anthony Kennedy, a Californian who led much of the criticism of the mandatory union fees, said teachers challenging the requirement disagree with union positions on issues such as tenure, merit pay and class sizes. “The union basically is making these teachers ‘compelled riders,'” he said.

To arguments that those teachers retain the right to speak out against the policies they are helping to support with so-called “fair share” fees, Kennedy asked rhetorically if that meant they should “spend another $500 so that it balances out? That makes no sense.”

And Michael Carvin, the lawyer for the dissident teachers challenging the California Teachers Association, said predictions of doom from the unions are overstated. “They can’t make such an allegation in the real world,” he said.

The 325,000-member teachers union, which spends more on politics than any special interest group in the state, warned 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.

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.”

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.

“The other plaintiffs and I hope the Supreme Court will consider our case thoughtfully and reestablish our First Amendment rights,” she said following the 80-minute oral argument. “If we win, this decision will be a big step forward for public sector employees across America.”

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, because states can negotiate with just one union and strikes are more easily averted.

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 many 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 because they were not typical state workers.

While neither case overruled Abood, the trend appeared clear. 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.”

Still, the court has been reluctant to overturn its own precedents, and indeed avoided that in the last two rulings.

“You start overruling things,” Justice Stephen Breyer said during Monday’s argument, “what happens to the country?”

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