- The Washington Times - Monday, January 11, 2016

The Supreme Court is poised to dent the political power of labor after conservative justices cast doubt Monday on public sector unions’ ability to collect fees even from workers who disagree with the union’s political or other demands.

At stake are millions of labor dollars in “agency fees” that unions collect from teachers, police and other public employees to pay for lobbying the government to raise their pay, give them more secure jobs and other similar benefits.

In nearly half the states in the country, unions can collect those fees even from nonmembers who disagree with the government shelling out more money on public employees.

The unions say their survival may depend on being able to continue charging the fees, arguing that their lobbying for better conditions and higher pay helps all union members, even those who don’t share the same views.

But opponents say it violates workers’ First Amendment rights if they’re forced to pay for lobbying that they don’t agree with — and the Republican-appointed justices seemed inclined to agree.

“The union basically is making these teachers compelled riders for issues on which they strongly disagree,” said Justice Anthony M. Kennedy, who is often the swing vote on the deeply divided court. “Agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.”

The case, which stems from California teacher Rebecca Friedrichs’ objection to paying fees to the California Teachers Association, comes at a time when public sector unions are increasingly under attack.

They’ve proved more successful than the blue-collar unions, but now find themselves under scrutiny because of their controversial role in trying to negotiate higher pay and other benefits from governments — which means those governments either need to raise taxes or siphon that money from other priorities.

Those are inherently not just union issues, but also major public policy debates — and so workers’ free speech rights have to be considered.

The California Teachers Association, backed by the state government and the Obama administration, said the employees get the benefits of the union lobbying, so they should be forced to pay. Otherwise, the nonmembers become free riders.

David C. Frederick, a lawyer for the teachers union, said public employees are different than other workers, and the state has an interest in promoting the welfare of unions so that it can have a strong negotiating partner with which to work.

Mr. Frederick also told the court that charging all workers, even those who disagree with the stances, creates a sense of “shared sacrifice” among all workers, and that produces labor peace.

“Cities, states, school districts, hospitals that are management-side have supported agency fees because they find it to be a more workable system by having employees buy into the policies that are being established through the collective bargaining process,” he said.

The teachers lost their case at the district and circuit court levels. They are asking the Supreme Court to overturn a 1977 case, Abood v. Detroit Board of Education, that upheld agency fees.

The justices grappled with a similar issue in 2014 in a case concerning home health care workers, ruling that home health care workers who objected to union stances couldn’t be forced to pay union fees. But the court in that case fell shy of overturning Abood, and several justices Monday seemed to test the implications of doing so this time.

“You start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?” Justice Stephen G. Breyer demanded.

But Michael A. Carvin, the lawyer for the teachers, said the court has left a confusing landscape, and whatever it decides will end up puncturing some of its previous rulings.

Liberal analysts were disappointed with the direction of the justices’ questions. They said Justice Kennedy and Justice Antonin Scalia, two Republican-appointed members of the court, had previously seemed sympathetic to the problem of union free riders but on Monday offered stern critiques of the practice of charging fees.

Justice Scalia compared letting unions charge fees for lobbying the government to a hypothetical law requiring all Republicans to have to contribute to the GOP in order to remain members.

One option short of overturning Abood would be for the justices to allow an opt-in procedure. Currently, employees must opt out if they don’t want to pay the fees.

The union backers said more than 90 percent of teachers belong to the union, and more than 90 percent of nonmembers still pay the fees.

But at the federal level, where unions cannot collect such agency fees, union membership is 30 percent, union supporters said.

A ruling on the case is expected by the end of the court’s term in June.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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