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Supreme Court Weighs High-Stakes Case on Union Fees

The U.S. Supreme Court on Tuesday took up a case with the potential to shake up the collective-bargaining landscape for teachers' unions and other public-employee labor groups.

Harris v. Quinn (Case No. 11-681) is a relative sleeper involving eight Illinois home health-care workers who declined to join the union and object to paying "fair-share" or agency fees for being represented by one.

Based on the hostility of the Supreme Court's conservative majority to public-employee bargaining rights in several recent decisions, anti-union advocates have asked the justices to overrule a key 1977 precedent that authorizes teachers' unions and other labor groups to collect service fees from non-members for costs related to collective bargaining.

William L. Messinger, representing the eight objecting home-health workers on behalf of the National Right to Work Legal Defense Foundation of Springfield, Va., told the justices that the 1977 decision, Abood v. Detroit Board of Education, "should be overruled."

"Our position is that in the public sector when government is involved, compulsory fees are illegal under the First Amendment," Messinger said, because they compel individuals to support causes against their will.

In Abood, the high court upheld a Michigan law that designated a single union as the exclusive bargaining agent for Detroit teachers. Adopting some of its precedents on union shop agreements from the private sector, the court said teachers in public school districts could be required to pay compulsory union fees for collective bargaining, whether they joined the union or not, because the system promoted "labor peace."

However, the union could not use the funds of objecting nonunion members for political purposes that are not directly related to collective bargaining. Since Abood, there have a number of Supreme Court cases addressing what may and may not be charged in service fees to nonunion members, and how to account for such amounts.

The case comes amid a backdrop of growing challenges for public-employee unions, from declining membership numbers to efforts in several states to roll back collective-bargaining rights. Agency, or "fair share," fees collected from non-members are a relatively small fraction of public-employee unions' budgets. But they are not insignificant sums, and they serve to encourage some workers to join the union at the full dues price.

Two years ago, in Knox v. Service Employees International Union, the court ruled 5-4 that public-employee unions had to get nonmembers to opt in to special assessments in certain cases. It was a relative minor defeat for the unions, but was the latest in a series in which the court's conservatives had ruled against them on the rights of nonmembers.

Writing for the majority in Knox, Justice Samuel A. Alito Jr. seemed to invite further challenges to the status quo in public-employee unionism when he wrote, "By allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers."

The national "right to work" movement picked up on the clues, and is advancing several cases designed to test the viability of precedents such as Abood. A group of nonunion teachers in California is challenging that state's law allowing school districts to enter into agency shop bargaining arrangements. The plaintiffs involved in that suit, Friedrichs v. California Teachers Association, which is pending in a federal district court, filed a friend-of-the-court brief on behalf of the Illinois home-health workers.

The "distinction between forbidden coercion of dues to support political or ideological speech and permissible coercion of dues to support collective-bargaining speech makes no sense," says the brief of the nonunion teachers. "As Abood itself recognized, collective bargaining is political or ideological speech that endeavors to influence governmental policymaking."

The Abood precedent and the California law, unsurprisingly, get support from the teacher's unions. The National Education Association and its affiliate, the California Teachers' Association (which is a party in the California case) filed a friend-of-the-court brief in the Supreme Court saying Abood was rightly decided and remains viable. (The American Federation of Teachers didn't file its own brief in the case, though the AFL-CIO, of which it is a member, did file one.)

Turnover Among Health Aides

The Illinois home-health workers don't quite fit the mold of the traditional public employee.

The health-care workers serve under a Medicaid program designed to encourage the states to de-institutionalize some people with disabilities. The workers were getting paid about $7 per hour, with high rates of turnover and low morale, when Illinois decided to make them state employees for collective-bargaining purposes and to certify a union (the SEIU) as their bargaining representative.

In rejecting the challenge to the services fees by the objecting health workers, the U.S. Court of Appeals for the 7th Circuit, in Chicago, held that the state largely controlled the employment of the program's home-health workers and thus Abood applied to their collective-bargaining arrangements.

The National Right to Work foundation appealed, and significantly broadened the potential impact of the decision by asking the court to overrule Abood.

During the oral arguments, there was as much discussion about teachers and their unions as there was about the home-health workers.

Alito offered a teachers' union example that he said "gets to what the plaintiffs in this case find disturbing.

"So the teachers union is negotiating about the issue of tenure and merit pay, and the union is opposed to any change in the tenure system, it's opposed to merit pay," Alito said. "Now, there's a teacher who's not a member of the union who disagrees completely with the union on these issues, but this teacher ... still has to pay a pretty hefty agency fee, maybe $700 a year. So the teacher is paying this money to the union to make an argument to the employer with which the teacher completely disagrees."

Washington lawyer Paul M. Smith, representing Illinois in defending the right to charge fees to the nonunion home-health workers, said that for more than 30 years the Supreme Court has allowed such services "because of the benefits of allowing collective bargaining to proceed with the duty of fair representation imposed on the union."

Justice Anthony M. Kennedy, who has been part of the court majority narrowing the rights of public-employee unions in recent years, questioned Smith on teachers' union advocacy for smaller class sizes and shorter hours, matters that ultimately affect the size of the government workforce.

"Is not the size of government a question on which there are fundamental political beliefs, fundamental convictions that are being sacrificed if a nonunion member objects to this line of policy?" Kennedy said.

U.S. Solicitor General Donald B. Verrilli Jr. joined the argument on the side of Illinois, defending the status quo in public-sector unionism.

"The context we are dealing with here is the government as proprietor and manager of its own operations," Verrilli said. "I think the most important point here is that the line the court drew in Abood and the line that has stood for 40 years is entirely consistent with the court's First Amendment jurisprudence in the context of government as employer, not as a regulator or sovereign."

Justices Elena Kagan and Stephen G. Breyer, who voted for the union's side in the 2012 case on special assessments, both expressed support for Abood as a matter of stare decisis. 

"You're asking us to overturn a case that's been the law for 35 years," Breyer told Messinger. "I guess there are millions of instances in which employees and employers and others have relied on it in collective bargaining."

Kagan told Messinger that his arguments for ending compulsory fees "is—I'm  just going to use the word here—it is a radical argument. It would radically restructure the way workplaces across this country are run."

"Since 1948, since the Taft-Hartley Act, there has been a debate in every state across this country about whether to be a right-to-work state and people have disagreed," Kagan added.  "Some states say yes, some states say no. It raises considerable heat and passion and tension, as we recently saw in Wisconsin."

Messinger's position would essentially compel a right-to-work environment in all states, Kagan said. 

A decision in the case is expected by late June.

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