Coercive unionism took center stage at the Supreme Court on Monday, as judges grilled labor lawyers on the merits of automatic union membership as a condition of public sector employment.
The justices on Monday heard oral arguments in Friedrichs v. California Teachers Association, a lawsuit brought by a veteran elementary school teacher. Rebecca Friedrichs and her attorneys contend that automatic participation in the union represents a violation of her freedom of association and speech.
"They [the state of California] do leverage the employment relationship to coerce the employee to subsidize or associate with an outside group," her attorney, Michael Carvin, argued.
Public sector employees in 23 states are forced to pay union dues as a condition of employment, a practice upheld in Abood v. Detroit (1978). Friedrichs is asking the judges to overturn that precedent.
Attorneys for the state of California and the union argued that workers are not compelled to follow its political agenda. They have the option to pay agency fees, which apply to representational services, such as grievances and collective bargaining, rather than full membership dues, which can also be used for political advocacy and lobbying. Union attorney David Frederick argued that the case could create a "free-rider" environment in which teachers fail to pay union dues or agency fees while still enjoying the benefits that come from collective bargaining.
"It's actually essential to have agency fees, because they are using those fees to benefit all of the workers," Frederick said. "It enables all of the workers to know they are making a shared sacrifice for the purpose of working together to establish a coherent position with their employer."
Associate Justice Anthony Kennedy dismissed that argument.
"The union basically is making these teachers compelled riders for issues on which they strongly disagree," he said. "Agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points."
The case hinges on the plaintiff’s argument that all public sector union activities, including representational practices such as salary negotiations, are in and of themselves political because they make a claim on taxpayer dollars at odds with Friedrichs' personal beliefs. Chief Justice John Roberts challenged California Solicitor General Edward Dumont to identify any public sector union negotiation that does not reflect a political belief.
"What is your best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question?" he asked.
"Mileage reimbursement rates or how you're going to have public safety," Dumont said.
"It's all money. That's money. That's how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money. And the amount of money that's going to be allocated to public education as opposed to public housing, welfare benefits, that's always a public policy issue," Roberts replied.
Union watchdogs predicted that the court would build on previous rulings that chipped away at coercive unionism in the public sector. Bill Messenger, an attorney with the National Right to Work Legal Defense Foundation, said that the Friedrichs case could follow the same line of legal reasoning that led the high court to strike down an Illinois policy forcing home healthcare workers to pay union dues in the 2014 Harris v. Quinn decision.
"I believe that the plaintiffs’ arguments are both more persuasive than the respondents’ and correct as a matter of constitutional law, and I hope the High Court takes this opportunity to finally remedy the injustice of forced union dues in the public sector," he said in a release. "I expect that a majority will rule against forcing civil servants to pay union dues."
There are key differences in the cases. Alito, who wrote the majority opinion in Harris, emphasized that the ruling did not overturn Abood. The decision said that Illinois’ system improperly classified home health workers as state employees just because they received state Medicaid payments—that argument does not necessarily translate to teachers who are undeniably public sector employees.
Jacob Huebert, lead counsel at the Illinois-based Liberty Justice Center, attended oral arguments and said that the tone of questioning suggests that the court may overturn Abood.
"The Harris decision strongly suggests that the five conservative justices were skeptical that forced payments were justified. Today’s argument suggests that they don’t see any reason not to do so. They appeared sympathetic to the plaintiff," Huebert said in a phone interview with the Washington Free Beacon.
Huebert said that Friedrichs could be a far more consequential decision than Harris because that case was limited in its scope. The Harris ruling applied only to Illinois, allowing about a dozen other states to maintain similar systems of coercive unionism, though those systems soon fell as unions and states realized they would not survive Supreme Court scrutiny. There will be no domino effect with Friedrichs, according to Huebert.
"If they say that’s its wrong to force any dues for public sector workers in California, the decision will be such that all forced dues schemes are struck down in every state," he said.