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Supreme Court takes fair share case

Tuesday, Jun 30, 2015

* Interesting times

The Supreme Court agreed to reconsider whether it’s constitutional for public sector unions to impose mandatory fees on non-members. The court will hear Friedrichs v. California Teachers Association, which challenges 1977’s Abood v. Detroit Board of Education. That case established the constitutionality of the non-member payments, known as “fair share fees.” It allowed unions to charge such fees “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.”

The Supreme Court has for years upheld Abood. But Justice Samuel Alito said in a 2014 opinion — Harris v. Quinn — that the reasoning in Abood was “questionable on several grounds,” essentially inviting new challenges. That challenge came in Friedrichs, where a group of California teachers sued the California Teachers Association for allegedly coercing them into an “agency shop arrangement” whereby they could decline union membership but were still compelled to pay a “fair share” fee for union bargaining.

- Posted by Rich Miller        

41 Comments
  1. - VanillaMan - Tuesday, Jun 30, 15 @ 10:34 am:

    “Help! We’re getting benefits without paying for them! Make us stop!”


  2. - Wordslinger - Tuesday, Jun 30, 15 @ 10:43 am:

    Alito thinks he has five. That was the “subtle” signal in his long way around the barn in Harris.


  3. - In a Minute - Tuesday, Jun 30, 15 @ 10:43 am:

    “Help! We’re forced to pay for things we don’t want! Make them stop!”


  4. - Formerly Known As... - Tuesday, Jun 30, 15 @ 10:46 am:

    Fair share agreements are ==fair== imho, but they now have the final word.

    Cue a message from Gov Rauner saying this supports his challenge of fair share in 3, 2, 1.

    ==I should have been a judge, not a governor== /s


  5. - Jake From Elwood - Tuesday, Jun 30, 15 @ 10:50 am:

    Alito probably has four. We shall see if “Wildcard Kennedy” will join them. The remaining “Gang of Four” will no doubt be opposed since they rarely march out of their liberal lockstep.
    This could dampen public sector labor relations, particularly in smaller units where the union dues and fair share fees are most necessary to survive.


  6. - Wordslinger - Tuesday, Jun 30, 15 @ 10:54 am:

    Jake, the fact that it got cert shows at least four. Alito was definitely carny-barking in Harris that Abood could go down with the right challenge.


  7. - walker - Tuesday, Jun 30, 15 @ 10:55 am:

    Abood always made straightforward sense, as originally defined. Pay just for what you
    actually get.

    We shall see if the world view has changed that much since 1977, in this case. Perhaps Alito has evolved to the position that entitlement to free services is a protected right for selected groups of people.


  8. - thunderspirit - Tuesday, Jun 30, 15 @ 10:57 am:

    === “Help! We’re forced to pay for things we don’t want! Make them stop!” ===
    Yup. Like overtime pay and paid time off and five day work weeks.

    And you can bet your mortgage/rent payment that big business will be after those non-profitable things next once they kill unions.


  9. - Nick Name - Tuesday, Jun 30, 15 @ 10:58 am:

    “The remaining ‘Gang of Four’ will no doubt be opposed since they rarely march out of their liberal lockstep.”

    Chief Justice Roberts has aligned with the Court’s left wing in economic matters, such as Obamacare last week.


  10. - Ughh - Tuesday, Jun 30, 15 @ 10:58 am:

    Public sector unions are the driving union force today. Private sector unions have steadily declined since the late 70’s. The Republican focus has been on the last safety sector the unions have been relying on for the last 20 years. SEIU and AFSCME the largest have also been the most politically involved and once you lose fair share then you have to lose staff.

    The economic divide has grown as union shops have declined. Every idiot thinks that the bosses will just be nice and give them what they deserve and they have… Bad news for plebs and the already diminished working class.


  11. - Beatgrunt - Tuesday, Jun 30, 15 @ 10:59 am:

    California teachers are among the highest paid in the country because they have a strong union. These people want all those hard fought for benefits but don’t want to pay the dues. Then go work for a private school for less money and less job security. Unions are not perfect but they are the only thing keeping the middle class afloat. In The states where right to work is the rule the rule is also consistently lower pay. Break the unions and you break the middle class. Any average Joe who supports this is a fool and is doomed to be a powerless puppet of the rich.


  12. - CB - Tuesday, Jun 30, 15 @ 10:59 am:

    Fair share agreements are “fair” if they reflect the amount actually required for contract negotiations and administration. My experience is that they are grossly over inflated.


  13. - chi - Tuesday, Jun 30, 15 @ 11:01 am:

    Kennedy isn’t the swing vote here. It’s Scalia. He wrote a concurrence in Lehnert about twenty-five years ago in support of fair share fees because they prevent free ridership. Her have to contradict himself to overturn Abood and fair share fees. Not to say he wouldn’t, but he doesn’t often admit he was wrong.


  14. - Team Sleep - Tuesday, Jun 30, 15 @ 11:05 am:

    I’m going out on a limb here.

    Why is it such a big deal to have two sets of rules and agreements? Most large companies have them. My dad’s employer - which is a defense contractor - had one set of pension/401(k) and health insurance schedules for hourly union employees and another for salaried employees. Guess what? It worked. Why? They had HR people whose job was to literally make it work or else they lost their own jobs.

    Every state agency has personnel/HR staff. CMS is a behemoth and can “advise” when needed. Why would it be such a burden to have two sets of rules? If you’re a rank-and-file state worker and you don’t want to belong to AFSCME, the Teamsters, SEIU or ISEA, fine. Opt out. You’re warned beforehand of the repercussions and advised that your benefits and personnel rights won’t be the same. If it’s worth an extra $50 in your monthly take-home pay, then you won’t have the protection of your union. It’s as simple as that.

    My guess would be that 99% of all current unionized state workers wouldn’t jump ship. Why would they? They know that someone has their back and will negotiate for them - all for $50 or so a month. That’s a good deal.

    If my prediction/guess is correct, then that means that maybe 500-600 direct state workers who are currently repped by a public sector union would opt out. That’s pretty minor.


  15. - Anonymous - Tuesday, Jun 30, 15 @ 11:06 am:

    CB give us your experience and enlighten us please.


  16. - ajtg - Tuesday, Jun 30, 15 @ 11:10 am:

    ===”Yup. Like overtime pay and paid time off….”====

    What would workers do without the union since there are no laws requiring overtime pay? I got paid time off in both union and non-union positions. I know people who are making more at Wal-Mart then Meijer. So the payment of union dues (especially for non-members) doesn’t exactly correlate to a benefit to the payer of dues.


  17. - Skeptic - Tuesday, Jun 30, 15 @ 11:16 am:

    Every state agency has personnel/HR staff. CMS is a behemoth and can “advise” when needed.

    (a) Not true, many agencies have had their HR “consolidated.”

    (b) Have you ever called CMS for advice?


  18. - Norseman - Tuesday, Jun 30, 15 @ 11:19 am:

    The gov must be giddy today.


  19. - walker - Tuesday, Jun 30, 15 @ 11:20 am:

    ==Fair share agreements are “fair” if they reflect the amount actually required for contract negotiations and administration. My experience is that they are grossly over inflated.==

    Agree with the first sentence. If the second is true, then that should be the basis of any legal case, not some claimed first amendment breach.


  20. - Homer J. Quinn - Tuesday, Jun 30, 15 @ 11:24 am:

    if money is speech and being forced to spend moneyspeech against our will is a violation of our first amendment rights, then I want my refund for Iraq and Afghanistan.


  21. - Team Sleep - Tuesday, Jun 30, 15 @ 11:27 am:

    Skeptic - my wife works for a state agency. Her agency has HR/personnel people on payroll. Those staffers handle everything from worker’s comp to insurance to the enforcement of the existing CBA. CMS hands down the rules and the HR/personnel staffers ensure the rules are followed. These employees don’t need to make the rules and can easily just enforce whatever CMS dictates. That’s what happens now, right? CMS speaks from on high and the agencies do what they’re told.

    Governor Rauner is essentially in charge of CMS. If this is such a big deal to him - and if the Fair Share case falls on the favor of the workers who have sued - then this would be Priority #1 at CMS after the current round of contracts are negotiated. It wouldn’t take long to devise a second set of rules if the Rauner-appointed attorneys/directors work to hammer them out (or at least I would hope that to be the case).


  22. - Ughh - Tuesday, Jun 30, 15 @ 11:28 am:

    Team Sleep - The management of individuals in a large workplace is much more difficult then the management of titles in a work place. You then also have recruiting and retention issues. You also have two tiers of employees. The salaries of public sector employees must be approved by legislative bodies, state or federal, governors or president. It would make working for the government much more political.

    What makes you think that the government would treat the employee’s (union/non-union differently). If they keep the employee’s the same, then perhaps more employees would drop the union. If they all drop the union then why change the pay rates, or why not increase the insurance rates for everyone…When the union has less members how would they have leverage at all. If the government treats them all the same and the union has to represent everyone regardless of status. They have costs that will diminish their resources.


  23. - Are Ya Kiddin' Me? - Tuesday, Jun 30, 15 @ 11:34 am:

    “- CB - Tuesday, Jun 30, 15 @ 10:59 am:
    Fair share agreements are “fair” if they reflect the amount actually required for contract negotiations and administration. My experience is that they are grossly over inflated.”

    The reversal of “Abbod’ won’t hurt Fair Share employees in reference to pay scale, where it will hurt them is in the discipline and grievance process.
    That is why you saw a rush of Fair Share employees joining the Unions when the Gov. issued his EO.


  24. - Grandson of Man - Tuesday, Jun 30, 15 @ 11:41 am:

    “Kennedy isn’t the swing vote here. It’s Scalia.”

    This could be right. In Harris v. Quinn, Scalia questioned the plaitiff’s argument that fair share fees are a violation of free speech. Scalia asked whether a fed-up police boss can refuse to listen to an officer constantly coming into his or her office to complain about wages. Scalia implied that the boss’ refusal to see the officer any more over wages would not violate free speech.

    Scalia also implied that concern over wages is always a matter of public concern, whether it’s a union or an individual–in the case of the disgruntled and annoying police officer driving the boss crazy over wages.

    In other words, it seems to me that what Scalia’s saying is that there is no way to escape the implication that public work has something to do with public speech, whether it’s a union or a non-union individual.


  25. - Team Sleep - Tuesday, Jun 30, 15 @ 11:42 am:

    Ughh - sorry, but that’s a weak sauce argument.

    First, there are already two tiers. Exempt employees have no protection, and they are simply allowed to buy into the same health insurance plans as AFSCME and other union employees. That’s not exactly what I would consider radical, either, so CMS could just lump those who opt out of a union in with the exempt employees. Federal employees are treated the same way. Exempt employees have no protection and are allowed to buy into the Postal Service’s plan or pick a plan that they prefer. Unlike unionized federal workers, Congressional and Senatorial staffers have a very puny pension guaranty and are strongly encouraged to sign up for a matching 401(k). Since the state’s pension system is much more ironclad, that wouldn’t be a problem at the state level for either management or the rank-and-file.

    Second, non-union employees don’t have to be treated “differently”. They would just be advised that they have no CBA protection. Even if they’re allowed to buy into union-negotiated healthcare plans and kept in the Tier 1 pension system, they have no representation and would essentially have to do their own legwork (as opposed having a chance to consult with a union advocate). Again - that’s exactly how the exempt staffers are treated.


  26. - Skeptic - Tuesday, Jun 30, 15 @ 11:43 am:

    “had one set of pension/401(k) and health insurance schedules for hourly union employees and another for salaried employees.” So, you’re saying the company had non-union managers, and Union workers? Or are you saying that have union and non-union managers and workers?


  27. - Team Sleep - Tuesday, Jun 30, 15 @ 11:47 am:

    Skeptic - yes, the company had/has non-union managers and some non-union foremen. The hourly staff are almost all unionized (save for the support staff such as custodians and cafeteria cooks). Everyone else is non-union.


  28. - Joe M - Tuesday, Jun 30, 15 @ 11:47 am:

    The plaintiffs say say fair share violates their First Amendment rights to have to pay any fees if they disagree with a union’s positions and don’t want to join it. Couldn’t the same argument be uses for taxes?

    I’m with Hommer J. Quinn 11:24 “I want my refund for Iraq and Afghanistan.”


  29. - RNUG - Tuesday, Jun 30, 15 @ 11:51 am:

    The 1% have been trying to get a case to SCOTUS; they succeeded. Now that SCOTUS is taking this case, maybe Rauner will back off a bit until it gets decided … but I’m not going to hold my breath.


  30. - CB - Tuesday, Jun 30, 15 @ 11:53 am:

    Fair share costs based on my experience are generally between 70% and 90% of union dues. I always asked for a justification and when it is presented basically everything except political contributions are considered contract related. Co-mingling staff and lawyers costs muddy up the water tremendously. If they had separate staff and law firms for contract, grievance and benefit administration from their union organizing and political staff then it would be much clearer and from my point of view less expensive for the non-union paying employees


  31. - Skeptic - Tuesday, Jun 30, 15 @ 11:57 am:

    cb: I can’t buy your argument. You’re essentially saying that four lawyers two that handle one thing and two that handle something else is less expensive than three, where one person handles both.


  32. - Skeptic - Tuesday, Jun 30, 15 @ 12:02 pm:

    What you’re describing sounds like a traditional shop to me…non-union management, a mix of middle management and union workers. Just like the State. (Granted, more middle-management is union than would be typical, but blame that on the B-named governor.)

    But what I hear you suggesting is that two people working side-by-side — even in the same job title — could be union or non-union, by the choice the worker. I don’t see that as viable, especially in a large organization.


  33. - Todd - Tuesday, Jun 30, 15 @ 12:13 pm:

    Ok I’m going to be the contrarian here.

    So they take a fair share case. Which, I have not read the briefs on, but looks to be about a non-unit members paying an agency fee of types. So this would seem to be an outlier of the issue.

    But just like I thought there was a bigger issue behind SSM, I see the same here. AS I recall, Scalia was pretty decent on the last fair share case. If unions, file amici and portray this as a taking issue, the takings of services without compensation, they could turn around a lot of things.

    If fair share fees for representation are upheld, and it is considered a taking of services, then RTW in the country just gets undone. as the biggest underpinning to RTW is not the ban on compulsary membership, but the ban on any fees or accessments for representation.

    If they were to be found legit, they have to pay for representation, but not be foreced into membership, then RTW across the country falls apart.

    And they just deced a federal governement takings case a week ago where the governement lost.

    There may be a silver linign to this


  34. - nixit71 - Tuesday, Jun 30, 15 @ 12:43 pm:

    Look like the Big 4 are getting ahead of this one too…

    http://www.nea.org/home/63151.htm


  35. - Woodstock worker - Tuesday, Jun 30, 15 @ 1:07 pm:

    I will ask for more knowledgeable minds to elaborate , but my sense us that the underpinning of this is the Taft-Hartley Act. As I understand it, Taft-Hartley created/ reinforced a union’s duty of fair representation to ALL employees once it became the exclusive bargaining agent for the employees. Thus, unions start losing money once fair share fees are eliminated. They cannot just stop representing or they risk being sued. I see a simple solution…employees don’t want to pay union dues, the union should not be obligated to represent/ defend them.

    With regards to exempt employees within Illinois state government, yes they do get some of the AFSCME negotiated benefits, but reliable raises aren’t one of them. Everybody knows that agency personnel budgets are balanced on the backs of non-union middle management (i.e. Public Service Administrators). That is why you get situations where workers make more than supervisors. That is why middle managers keep voting for AFSCME representation.


  36. - Juice - Tuesday, Jun 30, 15 @ 1:08 pm:

    TS- federal law prohibits employers from treating non-union and union workers who are in the same unit differently, which is why RTW is considered by those who are union friendly to create a free rider problem. So while it is true that the State as an employer could have different sets of rules for non-union and union employees, that is only true so long as they are in completely different positions. But the state is required to treat all correctional officers within a given title or all mental health techs the same, regardless of union membership. With your general premise though, I agree that it would make the issue much more straight forward, but it would require congressional action.


  37. - Team Sleep - Tuesday, Jun 30, 15 @ 1:37 pm:

    Juice - and that is why I wonder how the court will rule. Will they take liberty with how a bargaining unit represents rank-and-file who opt out? I would not bet against it.


  38. - Andy S. - Tuesday, Jun 30, 15 @ 3:19 pm:

    Intellectually, I simply can’t comprehend how you can require unions to represent and negotiate for all members of a bargaining unit (whether union members or not), but disallow them from collecting fees from non-members to pay for this. If I can get the benefit of union representation without paying for it, why can’t I get the benefits associated with living in a condominium or planned community without paying condo or homeowner association dues? More broadly, if I disagree with how my local public schools are run and send my kids to private school, why should I not be able to opt out from paying for public schools in my property taxes? If I disagree with US foreign and defense policy, why should I have to pay income taxes to support the State Department and defense spending? Overturning Abood will be a dangerously slippery slope. One can only hope that even with this Supreme Court, reason and common sense will ultimately prevail.


  39. - Chicago Cynic - Tuesday, Jun 30, 15 @ 3:49 pm:

    “- chi - Tuesday, Jun 30, 15 @ 11:01 am:

    Kennedy isn’t the swing vote here. It’s Scalia. He wrote a concurrence in Lehnert about twenty-five years ago in support of fair share fees because they prevent free ridership. Her have to contradict himself to overturn Abood and fair share fees. Not to say he wouldn’t, but he doesn’t often admit he was wrong.”

    I would not count on Scalia. He doesn’t admit he’s wrong often but votes against his previous positions with some regularity when it fits his world view.


  40. - Steve - Tuesday, Jun 30, 15 @ 7:17 pm:

    The union is in place because they were elected by the majority of workers to be there. You don’t get to opt out of your responsibility just because the election didn’t go your way. You don’t have to be a member; you don’t have to contribute to political causes regardless of your union membership, but you do have to pay for the services you and your co-workers chose through via democratic - secret - ballot


  41. - Chicago 20 - Tuesday, Jun 30, 15 @ 8:18 pm:

    Will the Scotus rule in favor of aranchy?

    A very slippery slope indeed.


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