For labor union opponents, a showdown at the U.S. Supreme Court can’t come soon enough.
Union foes have been itching for a new court date since 2014, when five justices hinted they were poised to give as many as 5 million public-sector workers the right to stop paying fees to their union.
Now 10 California teachers are urging the high court to take that step. Their lawyer will argue at a one-hour hearing on Monday that the teachers are unconstitutionally being forced to support unions, including the California Teachers Association, that don’t represent their views or their interests.
“My union has become what it used to fight,” said Rebecca Friedrichs, 50, a third-grade teacher in Anaheim, Calif., and the lead plaintiff in the case. “It is powerful, it is entrenched, and it is not listening to its members.”
A ruling in Friedrichs’ favor would topple laws in as many as 25 states that require government workers to pay union fees even if they aren’t members. Such a decision would be a watershed for the legal fortunes of public-sector unions, which now account for almost half the country’s unionized workers.
The teachers are asking the justices to overturn 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.
In 2014, a divided Supreme Court cast doubt on the 1977 ruling, known as Abood v. Detroit Board of Education. Writing for the majority in the 5-4 case, Justice Samuel Alito all but invited a direct First Amendment challenge to Abood, calling it “questionable on several grounds.”
Opponents wasted no time. A day after the 2014 ruling, the Friedrichs plaintiffs asked a federal appeals court to act immediately on their already-pending case – and rule against them – so they could get to the Supreme Court as soon as possible. The teachers said that while the appellate panel couldn’t overturn Abood, they hoped the Supreme Court would.
The San Francisco-based appeals court held off long enough to delay the case until the court’s current nine-month term. Now, union advocates say they worry the Supreme Court might topple a decades-old balance and undermine public-sector workers seeking higher wages and better job conditions.
“I really see this case as part of a much larger attack on the ability of working people to be effective and to band together and provide a key resource in the fight against inequality,” said Maryann Parker, associate general counsel of the Service Employees International Union, the country’s largest health-care union.
Public employees have been targeted by Republican governors who argue that union contracts place an excessive financial burden on taxpayers. New Jersey Gov. Chris Christie, now running for the 2016 Republican presidential nomination, gained a national political profile by battling with unions representing teachers and state employees.
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.
The teachers say they shouldn’t have to pay anything if they don’t want to. Even with the exemption for political activities, they say they are paying for their unions to take positions on matters of public concern, including positions some teachers find objectionable.
Friedrichs points, for example, to the grievance procedures the unions obtained through collective bargaining, a system she said means “it takes years to get rid of a teacher who’s not functioning well.”
The unions and California Attorney General Kamala Harris 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.
“There is a special First Amendment standard in the public employment context,” said Andrew Pincus, a Washington-based lawyer with Mayer Brown who filed a brief backing the unions on behalf of four constitutional law scholars. “Government acting as employer is different.”
Supporters of the teachers say a ruling in their favor wouldn’t devastate unions. One of the teachers’ lawyers, Terry Pell of the Center for Individual Rights, estimated that about 10 percent of workers might opt out of paying fees, though he said unions that are especially unresponsive to their members might lose so much support that they go out of existence.
Union supporters say the number opting out might be higher as workers discover they could become “free riders,” receiving the benefits of collective bargaining, such as negotiated salary increases, without paying dues. They also say a ruling for Friedrichs would invite follow-up challenges to the widespread practice of designating one union as the exclusive bargaining agent for a workplace.
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.