WASHINGTON — The Supreme Court appears ready to deliver a major setback to American unions as it considers scrapping a four-decade precedent that lets public-sector labor organizations collect fees from workers who decline to join.
During more than an hour of oral arguments on Monday, the high court’s conservative justices seemed likely to side with a group of California teachers who say those mandatory fees violate the free-speech rights of workers who disagree with a union’s positions.
Labor officials fear unions’ very existence could be threatened if workers are allowed to get all the benefits of representation without at least paying fees to cover the costs of collective bargaining.
But Justice Anthony Kennedy rejected arguments 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 reap the rewards 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 matters.
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 group of 10 teachers that filed the challenge wants 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 funds aren’t spent 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.
The challengers argue that public-sector 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.
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 unions, which are known for reliably supporting Democratic candidates and policies. The challengers are backed by the conservative Center for Individual Rights.
Arguing for the group of 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.”
Some justices were more sympathetic to the unions. 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, calling that “quite a big deal.”
