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The Supreme Court has posted a transcript of the oral argument in Friedrichs v. California Teachers Association. (Click here.) Here are some highlights. I tried to focus on arguments and comments that have not already been highlighted in the press:

Is it permissible to allow the union to be the exclusive representative so that nobody else is at the bargaining table? (Justice Ginsberg to Petitioners’ Counsel). Petitioners’ position is that although having an exclusive representative impinges on them because it prohibits them from individually negotiating with the employer, it’s permissible because of the need for an exclusive representative.

What happens to the tens of thousands of contracts with [agency fee] provisions if the Court finds such fees unconstitutional? (Justice Kagan to Petitioners’ Counsel).  Petitioners’ position is that collective bargaining agreements will continue in full effect, except that unions will not be able to collect agency fees going forward. Petitioners’ position is that there is no retroactivity; no one will get a refund of agency fees already paid.

If Abood falls, what happens with decisions like Keller on mandatory bar fees or Southworth on student activity fees? (Justice Ginsberg to Petitioners’ Counsel) According to Petitioners’ counsel, Keller and Southworth would survive because their rationale was significantly different from that in Abood.  He said that a bar association has nothing to do with speech, that it’s regulating lawyers. But Justice Kagan jumped in and argued that bar associations often engage in litigation or take positions on all sorts of issues that individual members may disagree with.

Is the California Teachers Association an agency of the State of California because it receives compulsory agency fees? (Justice Alito to Cal Solicitor General) The California Solicitor General (Cal SG) responded that no, it is not.  The state cannot control unions; cannot control speech.

What is the best example of something that is negotiated in a collective bargaining agreement with a public employer that does not present a public policy question? (Chief Justice to Cal Solicitor General) This question was in response to the Cal SG’s refusal to agree that every issue that is collectively bargained is within the political sphere. The Cal SG responded that the best example was mileage reimbursement rates. The Chief Justice responded that, “It’s all money.” The Cal SG seemed to agree that drawing the line is difficult and emphasized that the state’s position is that the need to have a single exclusive representative, and to have that representative be effective, outweighs any impact on individual employees as set forth in Abood.

Is EERA 3546(b) – which says that agency fees may be used for lobbying activities designed to … secure … advantages in wages, hours, and other conditions of employment – constitutional? (Justice Alito to Cal Solicitor General).  “I don’t know the answer to that question. I don’t think it’s the question presented here,” responded the Cal SG. The Cal SG went on to argue that if EERA 3546(b) goes too far, it can be corrected within the confines of Abood.

Why do you think that the union would not survive without these [agency] fees charged to nonmembers of the union? (Justice Scalia to Cal SG).  Cal SG emphasized that there was no factual record developed below. However, the State of California does not want to risk its system of collective bargaining [by having unions fail] by eliminating agency fees.

What is the burden on the union that weighs against simply requiring employees to opt-in as opposed to opt-out of agency fees? (Chief Justice Roberts to Unions’ Counsel) Abood recognized that there was no burden on the individual by requiring that he or she opt-out.  Chief Justice Roberts followed up by asking why someone should be required to opt-out every year.  Counsel responded that a continuing opt-out may be appropriate but that that issue was never presented below.

Why Should Abood be Affirmed.  (Opening argument by US Solicitor General) If you overturn Abood, “you’re going to disrupt those long-term relationships that have developed over time, and the expectations that have developed over time, and you’re going to replace them with a different kind of a situation in which the union is going to have a different set of incentives, trying to – trying to ensure that the maximum number of people are willing to pay union fees. And the way that the unions are likely to try to do that is through trying to convince employees that you — that they need the union because otherwise management is going to do them harm. And I do think that that’s a significant problem here for public employer perspective now, in a time of budgetary constraints, when difficult decisions have to be made and cuts have to be made.  It’s of great benefit to the employer, to the government as employer, to have the union participate in those judgments so that they are perceived as fair as the – by the workforce, and so that the union then, in effect, vouches for management with the workforce and prevents disruption.”

  • [Comment: If I understand correctly, the U.S. Solicitor General is arguing that without agency fees, unions will be forced to paint the employer as the “bad guy” in order to get employees to join, whereas with agency fees the union has more incentive to work with management in order to keep labor peace.  I’m not sure I agree with this argument; or that there is any empirical evidence to support it. However, I thought it was a very interesting argument for the U.S. Solicitor General to proffer.]

Shouldn’t states be allowed to decide whether to allow agency fees, especially because unions often do training and provide equipment that public agencies cannot afford on their own?  (Justice Sotomayor to Petitioners’ Counsel) Those matters are one of public concern and basic to our democracy.  That’s why petitioners shouldn’t have to subsidize them.

Finally, here’s my award for the strangest point. This was an example offered by unions’ counsel in response to questioning from Justice Breyer): “In New York City, for example, there were strikes that were occurring all of the time until an agency fee – fee system was put into place, and that enabled the City to better deliver transit services, schools services, and the like.”  Justice Scalia responded, “I just absolutely don’t understand it. Why would agency fees enable the city to do things that it couldn’t do before.”  Counsel replied, “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.”

  • [Comment: I still don’t get it. While I understand the free rider argument. I didn’t understand this argument at all.]



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