Mandatory union fees cast in doubt at U.S. Supreme Court

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The U.S. Supreme Court’s conservative wing cast doubt on requirements in more than 20 states that public-sector workers pay fees to the union that represents them.

Hearing arguments Monday in Washington, D.C., pivotal justices voiced support for California teachers who contend their First Amendments rights are being violated. The case could affect as many as 5 million public-sector workers.

Justice Anthony Kennedy, often the court’s decisive vote, said that many teachers “strongly disagree” with their union on issues of public concern, including merit pay and classroom size. Mandatory fees “require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points,” he said.

Five of the nine justices hinted in a 2014 case that they were poised to let government workers refuse to fund the cost of collective bargaining for pay raises and other matters. That step would be a blow to public-sector unions, which now account for almost half the country’s unionized workers.

Monday’s session suggested the court will divide along similar lines. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito joined Kennedy in aiming skeptical questions at union and government lawyers. The fifth member of the 2014 majority, Justice Clarence Thomas, followed his usual practice of asking no questions.

The court is considering overturning a 1977 Supreme Court ruling that said public-sector employees can be compelled to pay for union representation as long as they don’t have to cover the cost of political or ideological activities.

‘Absolute right’

Michael Carvin, the lawyer for 10 teachers who challenged the requirement, argued that even collective bargaining covers issues that are “basic to our democracy.”

“That’s why we have an absolute right not to subsidize it,” he said.

Justice Elena Kagan, one of the court’s four Democratic appointees, said the teachers who sued bore a “heavy burden” in seeking to have a decades-old precedent overturned. She said a decision toppling the 1977 ruling could affect thousands of collective-bargaining contracts.

Justice Stephen Breyer took a similar tack, saying Carvin’s arguments would undercut the precedential value of thousands of Supreme Court rulings in other contexts. He suggested that would undermine the public’s confidence in the judiciary.

“You start overruling things, what happens to the country thinking of us as a kind of stability?” Breyer asked.

Managing workers

The unions, California Attorney General Kamala Harris and the Obama administration say the Supreme Court has long given public employers wide latitude to manage their workforces, even if that means limiting the speech rights of employees.

“The distinction the court has drawn is between government acting as employer managing the workforce, and the government as sovereign regulating the citizenry,” said U.S. Solicitor General Donald Verrilli, the Obama administration’s top courtroom lawyer.

The court’s conservatives gave no sign Monday that they were swayed. The key case underlying Verrilli’s argument involved government discipline of a single worker, Alito said.

By contrast, “this is a prospective rule that applies to a huge category of employees,” Alito said.

Kennedy said he wasn’t moved by the argument that teachers remain free to speak out against the union’s positions.

‘It’s odd’

“It’s odd to say that if X is required to pay $500 for someone to espouse a belief that he doesn’t share, that he is now free to go out and argue against it,” Kennedy said. “That means he has to spend another $500 so that it balances out? That makes no sense.”

Scalia said that “everything that is collectively bargained with the government is within the political sphere, almost by definition.”

Under California law, public workers in what are known as “agency shop” jobs must either become dues-paying union members or pay a fee to support the union’s collective-bargaining activities.

For teachers, union dues often exceed $1,000 a year per employee, though people who don’t want to pay for political activities get a refund of $350 to $400, according to the suing teachers.

Supporters of the teachers say that a ruling in their favor wouldn’t devastate unions and that perhaps only 10 percent of workers would opt out of paying fees. Union supporters say the number opting out might be higher as workers discover they could become “free riders” and receive the benefits of collective bargaining, such as negotiated salary increases, without paying dues.

The teachers’ appeal also contends that, at a minimum, California can’t require objecting workers to opt out every year to avoid paying for the union’s political activities.

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