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Conservative Supreme Court Justices Appear Against Unions

The U.S. Supreme Court's conservative majority signaled Monday that it is likely to substantially weaken government employee unions by overruling a 1977 decision that has allowed the unions to charge nonmembers for the costs of representing them.

By Bob Egelko

The U.S. Supreme Court's conservative majority signaled Monday that it is likely to substantially weaken government employee unions by overruling a 1977 decision that has allowed the unions to charge nonmembers for the costs of representing them.

At a one-hour hearing, the justices appeared to agree with a lawyer for 10 teachers who argued that the fees they must pay to the California Teachers Association violate their First Amendment rights by requiring them to subsidize political positions that they oppose.

A ruling against the teachers union would overturn laws in California and 22 other states that allow public-sector unions to charge fees to nonmembers for the costs of negotiating their wages and hours and representing them in grievance proceedings. Union members pay dues, a higher amount that also covers expenses for lobbying and other expressly political activities, generally in support of pro-union Democrats.

The 325,000-member teachers union, backed by the Obama administration and the state of California, contends nonunion members should not be allowed to become "free riders" who pay nothing for the unions' costs of representing them. Conservative Justices Antonin Scalia and Anthony Kennedy appeared to endorse that view in a 1991 opinion that referred to "free riders" and noted that state law required the unions to represent all employees.

Justices' points

But Kennedy rejected the "free rider" label on Monday and told California's lawyer that the union "is making these teachers compelled riders for issues on which they strongly disagree." And Scalia seemed to endorse the central argument of the nonunion teachers: that all economic negotiations with a school board, or any government agency, are inherently political because they affect the spending of public funds.

"Everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia told California's solicitor general, Edward DuMont. "Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority? ... All of those questions are necessarily political questions."

DuMont countered that negotiations about subjects like car-mileage reimbursement rates had little to do with politics and did not prevent dissidents from speaking out against the union. "There is no restriction on any individual employee's speech ... either in the workplace or out of the workplace," he said.

The court ruled unanimously in 1977 that a public-sector union does not engage in political activity when it represents state or local government employees on issues like wages, so it can charge those costs to all employees. Full union dues, charged only to members, also cover the costs of lobbying and other overtly political activities. Percentages vary between unions, but the teachers union says a nonmember's fee is about 70 percent of a member's dues.

If that ruling is overturned, the unions would lose fees from hundreds of thousands of nonmembers nationwide and some current union members who decided to drop out to save money. The result would damage labor organizations in the remaining U.S. stronghold, as representatives of more than a third of government employees, compared with less than 7 percent in the private sector. It would also reduce their political clout.

Potential impact

Justice Stephen Breyer, a member of the court's more liberal minority, said such a ruling would also call into question past decisions upholding mandatory fees for state bar associations and possibly some state university fees, which also support some activities the fee-payers oppose. He said the 1977 ruling was "a compromise that ... has lasted reasonably well."

The union's lawyer, David Frederick, pointed to the court's 2006 ruling -- by a 5-4 conservative majority -- that said government employees who express opinions on workplace issues were not protected by the First Amendment and could be fired.

But Kennedy, the author of that ruling, said the two cases were different. "That was in the workplace," he told Frederick. "It didn't apply to merit pay. It didn't apply to the protection of underperforming teachers."

The nonunion teachers' lawyer, Michael Carvin of the Center for Individual Rights, said the only purpose of the fees charged to nonmembers was to "inflate the union's war chest by (payments from) people who really have not made a voluntary decision to do so."

A ruling in Friedrichs vs. California Teachers Association, 14-915, is due by the end of June.

(c)2016 the San Francisco Chronicle

Caroline Cournoyer is GOVERNING's senior web editor.
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