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Public Sector Unions Pin Hopes on Antonin Scalia Going Rogue

Posted on Jan 12, 2016

  U.S. Supreme Court Justice Antonin Scalia. (Jim Mone / AP)

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You know that public employee unions are in dire legal straits when their best chance for survival may rest with the Supreme Court’s most volatile, cranky and impulsive conservative: Antonin Gregory Scalia. Yet, according to some very sophisticated, progressive court watchers, that is the exactly the situation in the latest assault on public union operations, in the case of Friedrichs v. California Teachers Association (CTA).

Argued before the justices Monday, Friedrichs concerns the right of unions to collect limited “fair-share” fees from nonmember employees in lieu of full formal dues to help defray the costs of collective bargaining.

By any yardstick, the case packs blockbuster potential, both legally and politically. A decision against the 325,000-member teachers association could harm every government employee union in the country, draining their coffers and conceivably sending some into bankruptcy. In the process, the nation’s entire public sector would become one uniform right-to-work jurisdiction.


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To understand why some observers believe that Scalia, who rarely aligns with liberal causes, might play the critical role of swing voter in Friedrichs, a little digression is required, but rest assured: We’ll get back to him.

The plaintiffs in Friedrichs are the Christian Educators Association International and 10 anti-union California schoolteachers, including lead litigant Rebecca Friedrichs, who has taught kindergarten through fourth grade for nearly three decades in Orange County. They object to paying fair-share fees to the CTA. All were once CTA members but have since resigned.

Collectively, the plaintiffs are represented by the Center for Individual Rights (CIR), a nonprofit, ultra-right-wing law firm in Washington, D.C., that has made a name for itself in suits opposing affirmative action, the Voting Rights Act, Obamacare and the Association of Community Organizations for Reform Now. According to, the CIR is funded by many of the American right’s big-money patrons, such as the Lynde and Harry Bradley Foundation and the Koch brothers’ Donors Trust network.

Although the CIR handles much of its docket with its own in-house counsel, it has teamed up on Friedrichs with conservative super-lawyer Michael Carvin of the powerful Jones Day law firm.

Carvin and the CIR contend that collective bargaining in the public sector is inherently political and that, as a result, the fair-share system violates the First Amendment rights of nonunion workers. The amendment, they note, protects not only the affirmative right to speak without governmental interference, but also the passive right to not be compelled by government to speak or endorse the offending speech or acts of other individuals or groups. Requiring dissenting employees to pay fees to a union they don’t want to join, their analysis continues, amounts to such compelled speech and must be declared unconstitutional across the board.

To carry the day, however, the plaintiffs will have to persuade a majority of five justices to overrule a landmark 1977 decision dealing with government unions, one handed down long before any current justice’s tenure on the court began—Abood v. Detroit Board of Education—which upheld the constitutionality of fair-share arrangements.

This is where Scalia enters the picture.

Prior to the oral arguments in Friedrichs, Chief Justice John Roberts, along with Justices Samuel Alito, Clarence Thomas and Anthony Kennedy, clearly seemed poised to jettison Abood, based on their prior voting records in cases on the fair-share question. A close reading of Scalia’s previous pronouncements on Abood, however, suggested that he might not be ready to fall in line, at least not entirely.

Oral arguments are sometimes poor barometers of how the justices ultimately will vote. Sometimes they play devil’s advocate, and sometimes they ask questions because they haven’t yet made up their minds. But the court’s nine members appeared to divide sharply along familiar ideological lines in the Friedrichs hearing, with the panel’s Democratic appointees supporting the CTA, and its five Republicans—including Scalia—siding with the plaintiffs.

Justice Kennedy remarked during the arguments that fair-share fees “are matters of public concern” and amounted to “coerced speech.” Dissenting employees, he charged, are “being silenced” by being forced to pay them.

Scalia, while not tipping his hand, was described by New York Times reporter Adam Liptak, who attended the session, as “consistently hostile” to the union. “The problem is that everything that is collectively bargained with the government is within the political sphere,” Scalia said from the bench, echoing the CIR’s request to overrule Abood.

Under Abood and other provisions of current labor law generally, no one can be forced to join a union, even one that has been selected by a majority of workers to negotiate on their behalf. States are also free to enact right-to-work measures, as 25 have to date, prohibiting unions from demanding fair-share fees from nonmembers. But because of Abood and other cases decided in succeeding years, in non-right-to-work states like California, fair-share fee arrangements are lawful in the public sector (as they are privately), and they are mandatory once a union has been duly elected.

In fair-share venues, dissenting nonunion workers typically are billed in the form of payroll deductions for full regular union dues. They then have the right annually to “opt out” of making full payments, remitting instead only the portion that is needed to match the union’s bargaining expenses. Fair-share fees (also called “agency fees” in reference to the union’s status as the sole agent authorized to act on bargaining) cannot be used to pay for other union expenses, such as contributions to political campaigns and most lobbying.

As Abood recognized, the fair-share system is designed to equitably distribute the cost of union activities among those who benefit. The system is also aimed at countering the incentive that employees might otherwise have to become “free riders” who refuse to contribute to unions while reaping the advantages they bring, including higher wages, pensions, health insurance, and assistance with workplace grievances and employer disciplinary hearings.

The free-rider problem is real and significant. In California and most other jurisdictions, even in right-to-work states where unions operate, unions have a duty to represent and enforce the contractual rights of all employees in a bargaining unit, both members and nonmembers alike.

Such services don’t come cheap. The fair-share fee for the estimated 9.7 percent of California teachers who, like Rebecca Friedrichs and her co-plaintiffs, have opted not to join their union comprises about 68 percent of full membership dues.

There is little question that in return they receive a handsome payout. According to figures compiled by The Century Foundation, unionized teachers on average earn an hourly wage 24.7 percent higher than their nonunion counterparts.

Should Friedrichs and her cohorts prevail in their quest to topple the fair-share system, more teachers no doubt would leave the CTA, reasoning that they could retain the gains of union contracts without paying a dime for them. Public employees in other occupations probably would do the same, believing that they too could free ride without adverse consequences.

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