Justices take up dispute over union fees

Melissa Nann Burke
Detroit News Washington Bureau

Washington — The Supreme Court will consider curtailing the authority of government employee unions to collect fees from non-members in a case that advocates say would restore free speech rights and labor organizers fear would threaten their financing.

The justices said Tuesday they would hear a case brought by 10 California public school teachers who argue their First Amendment rights are violated by the requirement to subsidize activities with which they disagree.

The lawsuit seeks to overturn a 1977 decision, Abood v. Detroit Board of Education, that says public-sector employees may be forced to pay “agency fees” to help pay for collective bargaining, even if they declined to join the union.

In recent cases, conservative justices have indicated they are troubled by the legal reasoning of the 38-year-old precedent arising from a Detroit labor dispute.

The Abood decision held that the government has interests in promoting “labor peace” and preventing “free-riding” by employees who refuse to contribute to the union while benefiting from its representation. The ruling also held that it is unconstitutional to require employees to fund political activities of the union such as lobbying.

The lead plaintiff in the California case is Rebecca Friedrichs, a teacher in Orange County who says she resigned from the California Teachers Association because it takes positions that “are not in the best interests of me or my community.” She says she is still required to pay the union about $650 a year to cover bargaining costs.

The Center for Individual Rights, a conservative group working with the plaintiffs, argues that even the 70 percent of union dues that plaintiffs pay for supposedly neutral union bargaining “embody political choices that are often controversial” and are “inherently political.”

“This case is not about ending unions, but instead, restoring the basic constitutional rights of teachers and other public employees to decide for themselves whether to support the unions’ agenda,” said Terry Pell, the group’s president.

A ruling in favor of the teachers challenging the fees could sap finances at all unions representing teachers, firefighters and other government workers, labor leaders and other experts say.

“It’s no more than an attempt to squelch union voices and undercut working people,” said David Hecker, president of AFT Michigan, one of the state’s two teachers unions.

Hecker said Abood ensures every employee benefiting from a collective-bargaining agreement and the contract’s enforcement pays their fair share.

Harley Shaiken, a professor specializing in labor issues at the University of California at Berkeley, said if workers don’t have to pay for union representation, many will select the free option, either because they’re financially strapped or disagree with the union.

“It would potentially weaken unions. How much, we don’t know. And unions don’t want to find out. That’s why this case will be really pivotal,” Shaiken said.

A victory for the plaintiffs “would also embolden opponents of unions to go very aggressively after collective-bargaining rights.”

The High Court has raised doubts about the Abood precedent in two cases in the past four years. In a 5-4 opinion last year, Justice Samuel Alito called Abood “questionable on several grounds.”

Alito said a “bedrock principle” of the First Amendment is that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Kingsley R. Browne, who teaches employment law at Wayne State University Law School, said there’s “certainly been very strong dissatisfaction with Abood,” but it’s hard to predict whether the court’s conservatives can get a fifth vote to abandon it.

“If the unions weren’t so much involved in politics, it would be easier to accept that fairness argument,” Browne said.

“Whereas, really you’re just purchasing a service and donating to the coffers of an organization that overwhelmingly supports the Democratic Party. And overwhelmingly supports higher taxes to pay for public sector employees and so forth.”

Eight states signed onto a friend-of-the-court brief by Michigan Attorney General Bill Schuette urging the justices to hear the case and change or overturn Abood to abandon the “meaningless distinction” between collective bargaining and lobbying.

“Like lobbyists, public-sector unions obtain binding agreements from the government that have enormous public impact – all without the natural counterweight of a financial market that exists in the private sector,” Schuette wrote.

“In the public sector, it is taxpayers, not business owners and consumers, who foot the bill – and the bill is often steep.”

The states have an interest in protecting the free-speech rights of public employees and in guarding the fiscal health of state and local governments, Schuette said. His counterparts in Alabama, Arizona, Colorado, Georgia, Kansas, Texas, Utah and West Virginia also signed the brief.

The union membership rate of public-sector workers is more than five times higher than that of private-sector workers, 35.7 percent to 6.6 percent, according to a U.S. Bureau of Labor Statistics report issued earlier this year.

The Mackinac Center Legal Foundation – affiliated with the Midland-based Mackinac Center for Public Policy, a free-market think tank – also submitted a brief urging the court to eliminate agency fees, citing Michigan as an example that unions can survive without the them.

Patrick Wright, vice president for legal affairs at Mackinac, noted that some predicted Michigan’s adoption of a right-to-work law that took effect in late March 2013 would lead to the demise of organized labor in the state, but membership has stabilized after an initial decline.

“A ruling in favor of the petitioners would not get rid of mandatory public-sector bargaining. What it would only do is say the imposition of agency fees is illegal,” Wright said Tuesday. “Negotiating would still be a monopoly for those states that wanted to allow it — Michigan being one of them.”

Unions representing government workers have become more powerful in the labor movement as private-sector union membership has steadily declined during the past four decades.

Republican governors in Midwest states such as Wisconsin and Michigan have sought to rein in the influence of public-sector unions, blaming them for rising costs in state government through unaffordable pensions and benefits.


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The Associated Press contributed.