The Madison County Record Jul. 10, 2015, 9:36am


WASHINGTON – U.S. Supreme Court Justices will take a new look at an old decision allowing unions to take money from state employees who don’t belong to unions.

The Justices granted review to eight California teachers on June 30, in their First Amendment challenge to amounts they pay under collective bargaining law.

The teachers seek to overturn Abood v. Detroit Board of Education, a 1977 decision finding that exclusive representation of public employees serves the public interest.

A Supreme Court decision would likely resolve a federal suit challenging union charges on Illinois state employees, according to attorney general Lisa Madigan.

On July 2, she asked District Judge Robert Gettleman of Chicago to stay the case pending a Supreme Court decision in the California case.

“A decision upholding Abood will defeat plaintiffs’ claims, while only a decision overruling Abood might entitle plaintiffs to some form of relief,” she wrote.

She wrote that the Supreme Court would almost certainly issue a decision no later than next June.

The California teachers secured Supreme Court review two years after filing their suit, an astonishing feat they achieved by losing on purpose.

They sued the National Education Association, the California Teachers Association and 10 local unions at district court in Santa Ana in 2013.

Declaring their intention to overturn Abood, they set a hearing on an injunction while conceding they wouldn’t get one.

The unions moved to delay the hearing, arguing that the teachers couldn’t deny their right to create a sufficient factual record.

Their lawyer, Jeremiah Collins of Washington, D.C., wrote that it would be necessary to present in detail the nature of the matters they pursue in collective bargaining.

Collins wrote that it would likely be necessary to depose some plaintiffs.

He wrote that the National Education Association represents more than three million employees and spends more than $350 million a year.

He wrote that the California association represents a third of a million individuals and spends more than $187 million a year.

He wrote that it would take considerable time to collect the facts necessary for an adequate understanding of their activities and expenditures.

District Judge Josephine Staton granted the delay.

The eight teachers then sprang a surprise, moving for judgment on the pleadings.

John Vogt of Washington wrote that binding precedent required the court to deny the motion and instead grant judgment on the pleadings to the defendants.

“Should plaintiffs succeed on appeal, there will be plenty of time at that point for defendants to litigate whatever disputed material facts are then relevant,” he wrote.

The unions did not oppose the motion but Collins responded to it anyway, with a tribute to union power.

“California, like many states, has made the legislative judgment that unions should be allowed to charge bargaining unit employees who do not choose to become members of the union an agency fee to cover their share of the cost of negotiation, contract administration, and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative,” he wrote.

He quoted from Abood that:

“The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment.

“It prevents inter-union rivalries from creating dissension in the work force and eliminating the advantages to the employee of collectivization.”

“It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.”

Collins wrote, “A school district employer may need to resolve any number of issues as to which management may benefit from obtaining the views and recommendations of its teachers as a group, conveyed by an exclusive representative that is authorized to speak for the group.”

He wrote that a district seeking to spend compensation dollars efficiently would want to know the priorities of employees.

“So too, teachers’ collective views regarding the fairness and effectiveness of various potential rules and policies, and regarding ways to improve the quality of education, contribute to informed decision making by school districts,” he wrote.

“Furthermore, unions like CTA and ENEA have highly experienced staffs, with personnel who are uniquely qualified to develop solutions to issues and disputes that are beneficial to a district as well as to its employees,” he wrote.

“The knowledge and experience of such union representatives in analyzing economic data and other information is of direct value to a district in its own understanding of numerous issues, and also enables teachers to understand proposals made by management in a way that would not be possible without the involvement and the resources of the union,” he wrote.

He wrote that some public employees openly discriminate against union members.

“Nor is it unheard of for employees to be warned that becoming a union member will be a lifetime employment record and may haunt you everywhere you go when looking for a new job,” he wrote.

On Dec. 5, 2013, Judge Staton granted judgment in favor of the unions.

The eight teachers petitioned the Ninth Circuit appellate court in San Francisco for summary affirmance, and judges there granted it last year.

The teachers petitioned the Supreme Court for a writ of certiorari in January, and the Court granted it five months later.

Illinois litigation

Litigation over union fees in Illinois runs in two courts.

In federal court at Chicago, three state employees claim compulsory deduction of union fees violates their free speech rights under the First Amendment.

In St. Clair County, unions challenge an executive order Rauner signed that would prohibit them from taking money from workers not in unions.

In June, St. Clair County Associate Judge Christopher Kolker ruled that Rauner could not depose the American Federation of State, County and Municipal Employees.

Rauner wanted facts about AFSCME’s expenditures and financial status, bargaining and legislative strategies, and its calculation of fees it charges to nonmembers,

Yokich moved for an order, “to prohibit irrelevant and intrusive discovery.”

“The information sought in the discovery requests is not relevant to the claim that AFSCME or the other plaintiff unions are ‘politically powerful’ or that public sector bargaining is ‘inherently political,’” Yokich wrote.

He wrote that revealing strategies and resources would undermine the statutory rights of unions and workers.

Rauner’s lawyers replied that, “Parties discover each other’s financial information all the time.”

Kolker granted the order without explanation except for reference to the motion.

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