First Amendment Rights Hang in the Balance

By Allen Smith Jan 15, 2016

A 39-year-old Supreme Court decision may be overturned this term to grant public employees greater First Amendment rights.

Unions’ collection of agency fees from public employees who are not union members violates public employees’ First Amendment rights to free speech and free association, argued Mike Carvin, an attorney with Jones Day in Washington, D.C., before the Supreme Court on Jan. 11. He maintained that the court should overturn Abood v. Detroit Bd. Of Education, 431 U.S. 209 (1977), which upheld such fees as long as they went solely toward the costs of collective bargaining and not politics.

The high court is reviewing a First Amendment challenge of the fees by a group of California public school teachers, including lead plaintiff Rebecca Friedrichs. The 9th U.S. Circuit Court of Appeals upheld laws requiring nonmember teachers to contribute to a union’s bargaining costs because the nonmembers weren’t forced to support union political activities but did benefit from the union’s efforts to secure better working conditions for all teachers.

But public-sector unions’ spending always includes politicized speech, said Joel Barras, an attorney with Reed Smith in Philadelphia, in an interview with SHRM Online. If they did not have fair share fees, which cover the cost of bargaining, they would have less money for political speech, he explained.

If the teachers challenging California’s fair share fees prevail, thousands of collective bargaining agreements will have to be revised, Barras said.

Over the last several years, the Supreme Court has whittled away at Abood, said Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center in Washington, D.C. To decide this case, the court will take a look at where collective bargaining begins and lobbying ends, she added. NFIB has been tracking the case because small businesses have, for years, watched unions wield great influence with state legislators, Harned said. She hopes Abood will be overturned, saying, “The time for it has long since passed.”

In the past, unions had to address the issue of so-called free riders, who would benefit from union negotiations without contributing any fees, noted Ken Yerkes, an attorney with Barnes & Thornburg in Indianapolis. The National Labor Relations Act, which applies to private employers, allows fees to be collected from nonmembers, except in right-to-work states. Public employees have the right to organize under state law, which is why this case involves a challenge of California law.

The state law does provide an opt-out of the fees’ requirement. However, the employees argue that they should instead have an opt-in provision, Yerkes noted. He said Abood’s overturning is “a distinct possibility.”

First Amendment Argument

Carvin, who represents the teachers, said at oral arguments, “Every year, petitioners are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize. Abood’s authorization of this clear First Amendment violation should be overturned.”

Justice Elena Kagan said, “There are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees.” What would become of those contracts, she wondered.

“As I understand it, the court’s analysis prescribes prospectively,” Carvin answered. “That’s all we’re asking is for prospective relief. It doesn’t apply retroactively.”

How can the court overrule a compromise that was worked out over 40 years ago and has lasted reasonably well, asked Justice Stephen Breyer.

“I think the principal reason to overrule Abood is that all of the rationales offered in support of Abood’s result directly conflict with other precedents of this court,” Carvin responded.

The only purpose behind the agency fees, he maintained, is “to inflate the union’s war chest by people who really have not made a voluntary decision to do so.”

“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?” Chief Justice John Roberts Jr. asked Edward Dumont, Solicitor of California in San Francisco.

“Mileage reimbursement rates or how you’re going to have public safety,” Dumont answered.

“It’s all money,” Roberts replied. “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.”

Union’s Argument

On the other side of the fence, David Frederick, an attorney with Kellogg Huber Hansen Todd Evans & Figel in Washington, D.C., argued, “Abood correctly held that states may reasonably insist that nonmembers pay their share of costs for the services provided by a union to the government and to all employees as their exclusive representative.

“Overruling Abood now would substantially disrupt established First Amendment doctrine and labor management systems in nearly half the country.”

He added that while collective bargaining agreements involve some hot-button issues, many of the issues are not political, such as what time teachers need to show up, how long their lunch break can be, and what the policies are for transferring teachers between and among school districts.

Frederick added that the government is going to get “a cacophony of views unless it comes up with a reasonable system of management to get those views collected and have them represented by an exclusive representative.”

Moreover, he said that before agency fees were put into place, “There were strikes that were occurring all of the time.” With the fee system, cities were enabled “to better deliver transit services, school services and the like.”

Justice Antonin Scalia said, “I just absolutely don’t understand it. Why would agency fees enable the city to do things that it couldn’t do before?”

“Because 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,” Frederick answered.

This case is Friedrichs v. California Teachers Association, No. 14-915.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


Job Finder

Find an HR Job Near You
Post a Job


Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect