WASHINGTON – Taxpayers should brace for strikes now that government unions can no longer compel members to pay agency fees for political campaigns, attorney David Frederick said last December arguing for unions before the U.S. Supreme Court.
Frederick, of Kellogg, Hansen, Todd, Figel & Frederick in Washington, said legislatures, city councils, and school boards would have to go back to the drawing board in deciding rules for negotiation.
“The key thing that has been bargained for in this contract is a limitation on striking. The fees are the tradeoff,” he said.
He warned that if the Justices ruled against agency fees, “you can raise an untold specter of labor unrest throughout the country.”
Five Justices raised the specter anyway on June 26, ruling that unions violate the First Amendment when they take money without consent.
The majority held that, “Employees must choose to support the union before anything is taken from them.”
A transcript of the argument was released with the decision.
William Messenger of the National Right to Work Legal Defense Foundation in Springfield, Va., spoke first on behalf of petitioner Mark Janus of Illinois.
Justice Ruth Bader Ginsburg asked him about student activity fees, bar association payments, and agency fees in the private sector.
Messenger said student fees are justified by a university’s interest in setting up a viewpoint neutral forum for speech and said bar association payments are justified by a state’s interest in regulating the practice of law.
“In the private sector, you would have a question of whether state action applied, and therefore the rule of Janus would apply to that case,” he said.
Justice Sandra Sotomayor said she thought the Court always recognized that the government had a compelling interest in regulating its employment decisions.
She said the Court permits government to fire people for speaking outside the government’s approved policy messages.
“Why can’t that interest in having workplace peace, workplace routine in which issues are decided in a collective way, why isn’t that a compelling interest?” Sotomayor said.
Messenger said those interests don’t justify forcing individuals to support the speech of an advocacy group.
Sotomayor told him he didn’t answer her question.
“Agency fees are not a least restrictive means to satisfy any labor peace interest the government may have in listening to one union,” Messenger said.
Ginsburg said union supporters might think they’d rather keep the money, and not for ideological reasons.
“The First Amendment prohibits the government from probing into individuals’ subjective beliefs,” Messenger answered.
Justice Anthony Kennedy, who announced he would retire after the Janus decision was published, said, “Have the unions at any point in their history committed to the idea of viewpoint neutrality?”
Messenger said no.
Sotomayor asked why a collective body coming to the table entitled anyone to First Amendment protection.
Messenger said the American Federation of State, County and Municipal Employees bargains over issues affecting thousands of employees.
Sotomayor said, “So it’s now scale, not subject?”
Messenger said it was both.
U.S. solicitor general Noel Francisco appeared next as friend of the Court, stating that the federal government doesn’t have agency fees generally.
Sotomayor asked him how much of the federal workplace is unionized, and he said a quarter to a third.
She asked how much unionization there is in the corporate or private sector, and he said he thought it was less than that.
Ginsburg asked him what would happen in the private sector if he prevailed, and he said he didn’t think anything would happen.
Justice Stephen Breyer said, “If I were in a regulated industry and I read the Court’s opinion siding with you, I would wonder if it didn’t apply to me.”
“Not all workers are lawyers, and all they’ve seen is that this Court has suddenly cut legs, at least one, out of the financing of a system that at least in some respects, though it’s debatable, some people think it brought labor peace,” Breyer said.
Francisco said the grievance process raises First Amendment concerns as well, but the focus of this case was collective bargaining.
Kagan asked if it was his position that all speech about pay, conditions, vacation, and benefits was a matter of public concern.
He said yes.
Sotomayor said, “This is such a radical new position on your part.”
He began to answer and she said, “How many times this term already have you flipped positions from prior administrations?”
He began again to answer and she said, “How many?”
He said, “I think that we have revised the position in, so far, three cases.”
Breyer said, “That’s fair.”
Next, on behalf of Illinois, solicitor general David Franklin said the state has a much freer hand when managing personnel than when regulating citizens.
He said a freer hand includes broad authority to put conditions on speech.
Kennedy said, “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”
He asked if Franklin’s view would change if 80 percent of dues went to political matters and 20 percent went to wage negotiations and grievances.
Franklin said he didn’t know that it would.
Kennedy said, “Then it seems to me your argument doesn’t have much weight.”
Franklin said, “We don’t have a record here. We’re on a motion to dismiss. To decide this case in an evidentiary vacuum on the basis of assumptions about how that speech breaks down or how these expenses break down would, in our view, be irresponsible.”
Justice Joseph Alito asked Franklin if there were any limits on the authority of the state to compel employees to say what the state wants them to say.
Franklin said, “If what the state wants them to say is a function of their official duties in the workplace.”
Alito said, “No, if it’s not a function of their official duties. You probably agree with the position you’re arguing but if you didn’t, coming here representing the state of Illinois, you couldn’t just argue what you like.”
Franklin said, “No, my boss is right behind me.”
He said compulsion and restriction were two sides of a coin.
Alito said, “When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”
Franklin said, “You do, your honor, in some circumstances. But what we’re talking about here is a compelled payment of a fee. It’s one step removed from compelled speech.”
When he called the union a partner of the state, Kennedy sizzled.
Kennedy said, “It can be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes, that’s the interest the state has?”
Franklin began to answer and Kennedy said, “Doesn’t it blink reality to deny that that is what’s happening here?”
Franklin said, “We’ve never denied that many of the topics that come up at the bargaining table with public employee unions have serious fiscal and public policy implications.”
He said studies show that when unions are deprived of agency fees, they become more militant and confrontational.
“They go out in search of short term gains that they can bring back to their members and say stick with us,” Franklin said.
Chief Justice John Roberts said the opposite argument is that the need to attract voluntary payments will make unions more efficient and effective.
Franklin said, “Over the long term, human nature and basic economics dictate that the free rider problem will become endemic.”
Frederick followed for AFSCME Council 31, the primary union of state employees.
He said a well settled system allows “a dynamic interchange for the benefit of management.”
Kennedy asked him if this case affected the political influence of the unions.
Frederick said no and Kennedy said, “I can try to find a union newsletter which says, don’t worry about the Supreme Court? Our political influence will be exactly the same as it was before, if this case comes out against us?”
Frederick said the unions would have less political influence.
Kennedy said, “Isn’t that the end of this case?”
Frederick said no, and asked if states have the prerogative to set up a system mandating that a union represents minority interests on pain of being subject to any unfair labor practice.
Kennedy said, “They mandate people that object to certain union policies to pay for the implementation of those policies against their First Amendment interests?”
Frederick said a person who doesn’t agree could try to persuade the group that he’s right and would still have his conscience to speak outside as a citizen.
Alito told him his brief argued that the original meaning of the Constitution was that public employees have no free speech rights.
Frederick said, “The core principle from the founding to today is that government has a free rein in regulating expressive rights in its workplace. What they are saying is that every grievance, every employment issue, becomes a constitutional issue.”
Roberts said, “How do negotiations over wages not affect the state budget?”
Frederick said, “What essentially happens, as I understand it, is that either the budget is set and the negotiation occurs within that parameter, or the governor takes the collective bargaining agreement to the state and the legislature decides to either ratify it or not.”
Roberts said, “So the public unions do not engage in advocacy with respect to the state’s budget to the extent that impacts the available wages?”
Frederick said, “I wouldn’t quite put it that way. The question is, how do you come to the appropriate compromises in order to achieve a system that attracts the best workers?”
Alito asked if one employee saying he deserves a five percent raise was a matter of public or private concern.
Frederick said one person’s agitation wouldn’t raise a matter of public concern.
Alito asked if it would be a matter of public concern if a union demanded five percent for all the employees it represents.
Frederick said no, because what happens in negotiation is a closed universe.
Alito asked if it would be a matter of public concern if a five percent wage increase pushed a city to the brink or over the brink into bankruptcy.
Frederick said, “I think you would look at that in terms of the context of that particular scenario. That particular hypothetical in fact is an unfair smearing of the collective bargaining process.”
As his time ran out, he threatened labor unrest throughout the country.
Roberts gave Messenger two minutes, and Messenger said the proposition that employees pay agency fees to prevent strikes was extremely attenuated.
He said it would make agency fees a form of protection money. He said grievance processing is an equally expressive activity that could have an effect on public life.
Sotomayor said, “You’re basically arguing, do away with unions.”
Messenger said AFSCME recently filed a grievance to compel the state to expend $75 million for a two percent wage increase.
He said, “Maybe some other grievances are more minor matters as you mentioned but as a whole, in the aggregate, they affect matters of public concern.”
Alito wrote the majority opinion, with Kennedy, Roberts, Justice Neil Gorsuch, and Justice Clarence Thomas concurring.
Kagan, Sotomayor, Ginsburg, and Breyer dissented.