High court seems skeptical of mandatory public union fees

The Supreme Court of the United States on Monday appeared ready to deal a major blow to the power and clout of organized labor as it considers the free speech rights of government workers who say they shouldn't be forced to pay fees to public-sector unions.

The high court's conservative justices seemed inclined during 80 minutes of oral argument to overrule a four-decade old precedent that allows public-sector unions to collect mandatory fees from non-members to cover collective bargaining costs.

A group of California public school teachers claims these "fair share" fees violate the First Amendment rights of workers who disagree with the union's positions.

Labor officials fear that union members will leave in droves if they realize they can get all the benefits of representation without paying for it.

But Justice Anthony Kennedy rejected arguments made by lawyers for the state of California and the California Teachers Association that the current fee system is needed to prevent non-members from becoming "free riders" — workers who get all the benefits of union bargaining and grievance procedures without paying for it.

"The union basically is making these teachers 'compelled riders' for issues on which they strongly disagree," Kennedy said, noting the political nature of bargaining issues like teacher salaries, merit promotions and class size.

Arguing in support of the union, California Solicitor General Edward Dumont said the state needs a reliable bargaining partner that is funded by all the workers it represents. He said the fees for collective bargaining typically apply to non-political issues such as mileage reimbursement, working hours and other mundane issues.

Chief Justice John Roberts dismissed that reasoning, saying even routine matters can become politically charged if they involve how the state spends money.

"That's always a public policy issue," Roberts said.

Even Justice Antonin Scalia, who in the past has expressed some sympathy for the free rider argument, said all the items negotiated in a collective bargaining agreement "are necessarily political questions."

The California teachers want the high court to overturn a 1977 case that allows public unions to collect money from members and non-members alike, as long as the money doesn't pay for political action. The court in that case, Abood v. Detroit Board of Education, said the arrangement was justified to prevent non-members from becoming free riders.

But the teachers argue that unions have become more political over time. They say even a push for higher salaries and pension benefits raises political questions about the best use of tax dollars for cash-strapped localities.

A federal district court ruled against the teachers, saying the outcome was clear under Abood. The 9th U.S. Circuit Court of Appeals affirmed that ruling.

Half the states already have right-to-work laws banning mandatory fees, but most members of public-employee unions are concentrated in states that don't, including California, New York and Illinois.

Union advocates say the lawsuit is part of a conservative agenda to weaken powerful labor unions, known for reliably supporting Democratic candidates and policies. The teachers are backed by the conservative Center for Individual Rights.

Arguing for the teachers, Michael Carvin said mandatory fees serve to "inflate the union's war chest by people who really have not made a voluntary decision to do so."

Justice Elena Kagan warned that the challengers "come here with a heavy burden" to overturn a nearly 40-year-old case on which thousands of contracts and millions of employees rely.

Justice Stephen Breyer said overturning Abood would require the court to overrule several related cases in which the high court has approved mandatory payments by lawyers to bar associations and mandatory student fees at public universities.

"That's quite a big deal," Breyer said.

Carvin said Abood's rationale is inconsistent with other free speech cases.

Arguing for the California Teachers Association, lawyer David Frederick said the First Amendment applies differently to public employees performing their jobs. He said the state has a strong interest in promoting efficiency and avoiding costly workplace disruptions by designating the union as the exclusive bargaining representative for workers.

For decades, the growth of union workers in government has helped compensate for steep losses in manufacturing, construction and other private industries where unions once thrived. About half of all union members are now in the public sector, which has a membership rate of 36 percent. That's more than five times higher than that of the private sector, at 6.6 percent.

Even if the court doesn't overturn settled precedent, it could still give the challengers a partial victory. The justices are also considering whether public employees should be required to "opt in" to paying the political portion of union dues. Currently, workers must "opt out" of the political fees by checking a box on a form.

The "opt in" requirement could lead to more workers declining to pay the political portion of union dues, though it typically is a much smaller part of the overall payment.

A decision in the case, Friedrichs v. California Teachers Association, 14-915, is expected by late June.