Tag Archives: SCOTUS

NPR: Is It Fair To Have To Pay Fees To A Union You Don’t Agree With?

Worth thinking about –  this upcoming SCOTUS decision could have a big impact on unions/union workers.  Reposting from NPR.org. – kw

Listen to the Morning Edition article here:

It’s the showdown at the Supreme Court Corral on Monday for public employee unions and their opponents.

Union opponents are seeking to reverse a 1977 Supreme Court decision that allows public employee unions to collect so-called “fair share fees.”

Twenty-three states authorize collecting these fees from those who don’t join the union but benefit from a contract that covers them.

The decision later this year will have profound consequences not just for the California teachers in Monday’s case, but for police, firefighters, health care workers and other government workers across the country.

To understand what is at stake, here is a primer in how the labor law works in states that have authorized these fees.

If a majority of the public employees at a given site vote to be represented by a union, that union becomes the exclusive bargaining agent for the workers. In California, some 325,000 teachers in more than 1,000 school districts are represented by the California Teachers Association and, to a lesser extent, the California Federation of Teachers.

Of those, 9 percent have not joined the union, but under California law, any union contract must cover them too, and so they are required to pay an amount that covers the costs of negotiating the contract and administering it. The idea is that they reap the bread-and-butter benefits covered by the contract — wages, leave policies, grievance procedures, etc. — so they should bear some of the cost of negotiating that contract.

They do not, however, have to pay for the union’s lobbying or political activities; they can opt out of that by signing a one-page form.

In addition, the state Legislature has carved out certain hot-button matters that are not subject to bargaining at all. Specifically, the union can’t bargain over pensions or tenure.

In 1977, the Supreme Court upheld mandatory fees for non-union members as constitutional. The court said they were justified by the state’s interest in maintaining labor peace and eliminating “free riders” who gain benefits without paying their “fair share.”

But in recent years, five Supreme Court justices have signed on to opinions strongly hinting that they were ready to overturn that precedent. Indeed, Justice Samuel Alito, the author of two key opinions, all but invited the challenge posed by Monday’s case.

The Face Of The Case

Rebecca Friedrichs is the public face of the lawsuit that bears her name. After 28 years on the job, she is currently a third-grade teacher in Buena Park near Anaheim, Calif.

“The union’s supposed financial benefits aren’t worth the moral cost,” she said. “They protect teachers who are no longer effective in the classroom … and they’re more focused on self-preservation than they are on educating little children.”

Friedrichs is a strong opponent of the $650 in yearly fees she says she is forced to pay, arguing that everything the union does is political.

The fees are “used to promote the union’s political agenda,” Friedrichs said, contending that they violate her First Amendment right of free speech and association.

Eric Heins, the current president of the California Teachers Association, counters that what is purely political is the Friedrichs case.

“It’s really about an agenda to weaken and destroy unions,” he said.

Heins added that he in fact got involved with the union because of concerns about teaching — especially No Child Left Behind and its “incessant” testing.

Heins said the union contract has allowed him to advocate for “good teaching” for his students “without fear of retaliation.”

He compares the case against fair-share fees to a group of four people going out to dinner. Three vote for one restaurant, the fourth for another. The group goes with the majority; they enjoy the meal, but when the bill comes, the guy who wanted another restaurant tells his friends, “the rest of you have to pick up the tab” because the restaurant wasn’t my choice.

The Arguments

In the Supreme Court on Monday, lawyer Michael Carvin, representing the challengers, will tell the justices that what are technically called “agency fees” are unconstitutional.

“You’re forcing the employee to subsidize somebody else’s speech,” Carvin said. Negotiating a public employee union contract, he maintains, is different from negotiating one for workers in the private sector.

“When we’re talking about public unions,” he said, “everything they do is inherently a matter of public concern, because every time they get pension, health care and salary benefits, that comes out of the public fisc … so every dollar you spend on health care or salary is a dollar you can’t spend on roads or children.”

Lawyer David Frederick, representing the union, counters that what the challengers are seeking is a free ride on the union’s back.

“No one is precluding the right of teachers to speak publicly about their beliefs concerning merit pay, to lobby the Legislature” or express their views on important issues related to education, he said. “All we’re talking about here is an efficient means for the government to determine what its contract with its workforce is going to be.”

The union and the state of California are on the same page in this case. They say that agency fees give the union the resources to be able to make some hard deals, as they did in California during the Great Recession when they negotiated teacher furloughs and some reductions in pay so that more teachers could keep their jobs.

The union and the 23 fair-share states say that if the court were to overturn its 1977 decision, it would trample on states’ ability to govern their own affairs. And more importantly, it would inevitably weaken unions. They would have to raise dues, pitting those who do pay against those who don’t, and the unions would likely have to dig in their heels unreasonably in negotiating to prove their mettle.

Lawyer Frederick pointed to New York City and state in the 1960s and ’70s, a time when agency fees were not authorized.

There were “literally hundreds of work stoppages in the public sector — we’re talking about the subway system … firemen, police, teachers — who went out on strike,” he noted. “And just one week of a strike of the transit workers in New York could cost a billion dollars to the economy.”

There were on average 20 public-sector strikes a year in New York state in the 15 years prior to the Supreme Court’s 1977 decision. Many of them lasted a month or more and closed down schools and other public services, from senior centers to garbage collection.

Even laws imposing harsh penalties for public employee strikes were ineffective.

But after the Supreme Court upheld agency fees, the state quickly passed a law permitting them, and the rate of strikes plummeted by well over 90 percent to fewer than two per year.

In Monday’s case, the union and nearly half the states urge the Supreme Court not to risk that kind of chaos again.

Politics At Play

The unions have seen the consequences quite recently when Republican-dominated state governments eliminated fair-share fees. In 2012 union membership in Michigan declined by 7 percent, and “free-riding” more than doubled, after the state enacted a public-sector right-to-work law and prohibited school districts from collecting union dues by payroll deduction, according to the Economic Policy Institute, a left-leaning think tank.

But the challengers’ Michael Carvin dismisses such justifications outright:

“The proof is in the pudding. Most states don’t require agency fees. The federal government doesn’t require agency fees. And those unions do fine in that environment.”

But, he added, in a moment of puckish clarity:

“It may impede their ability to become the largest political contributors to the Democratic Party.”

The court’s 1977 decision is so wrong, he contends, that it is time to reverse it.

The union, the state of California, 21 other states and the District of Columbia warn that if that happens, it would unsettle tens of thousands of union agreements across the country, an assertion that Carvin also dismisses.

There is a second issue brought by the challengers — a secondary spear, as it were, aimed at the union’s heart. The challengers contend that the opt-out provision authorized by state law is also unconstitutional.

Under that provision, the union is required to send all nonmembers a one-page form allowing them to check a box and automatically be exempt from sharing the expense of the union’s lobbying and ideological activities. The challengers want to reverse the process, and be automatically exempt unless they opt in. The union contends that would require a far more costly canvassing process.

Both the union and the state argue that the opt-out process is an administrative choice made by the state, and that there is no need to “constitutionalize” it.

Monday’s arguments promise to range from lively to ferocious, with a decision expected by summer.


Photo Credit: Mark Ralston/AFP/Getty Images via NPR.org


The Supreme Court Rejected 4 People’s Attempt to Blow Up Obamacare

This article, published by Mother Jones, sheds light on the real stories behind the SCOTUS appeal decided on June 25th allowing subsidies under the Affordable Care Act to continue.  – KC

When I saw the white stretch limousine parked out front, I knew I’d found the right place. I walked down the gravel driveway toward the white single-level house with trepidation; the owner’s Facebook page had suggested the possibility of pit bulls. But I was greeted at the door by David King, a garrulous 64-year-old self-employed limo driver who has lent his name to what may be the weightiest case to come before the Supreme Court in years. I’d come unannounced to King’s modest home in Fredericksburg, Virginia, to learn why he’d agreed to headline a legal assault that, if successful, could hobble the Affordable Care Act and result in millions of Americans losing their health insurance.

Asked what he might get out of King v. Burwell, the burly, mustachioed Vietnam vet replied that the only benefit he anticipated was the satisfaction of smashing the signature achievement of the president he loathes. Obamacare, King explains, bilks hardworking taxpayers to support welfare recipients. Those people who might end up without insurance? He didn’t care, because “they’re probably not paying for it anyway.”

Of course, you can’t challenge a law simply because you hate it. Legally, King’s case rests on his claim that he has been personally harmed by the law, specifically its subsidies to help people buy health insurance. He alleges that the subsidies are illegal in states without insurance exchanges and put him in a position where he must get health insurance or pay a penalty.

If five Supreme Court justices buy this argument, the stakes are huge: More than 13 million people could lose their subsidies and about 8 million could lose their health insurancealtogether. Public health experts estimate that nearly 10,000 of them could die every year as a result. Premiums for some plans could skyrocket by as much as 256 percent. The insurance markets in more than 30 states could implode.

The case is the work of the Competitive Enterprise Institute, a libertarian think tank funded by pharmaceutical firms, the Koch brothers, and Google, among others. While the legal logic behind the suit is obtuse (much of it hinges on what one appeals judge called “a tortured, nonsensical” interpretation of two sentences in the law), its goal is simple: As the center’s then-chairman declared in 2010, Obamacare “has to be killed as a matter of political hygiene.”

But first CEI had to recruit real people who could claim they had been harmed by the Affordable Care Act. That led them to King and his three fellow plaintiffs, one man and two women. The four had been largely absent from coverage of the lawsuit, but after the Supreme Court agreed to hear the case this spring, I set out to find out just how Obamacare would hurt them.

King’s situation was typical of what I found. He wouldn’t say whether he currently had health coverage, but he was adamant that he would never take advantage of Obamacare, no matter what. Last year, according to court filings, his income was $39,000. With an Obamacare subsidy, he could have purchased a health plan for as little as $275 a month (or less, if he weren’t a smoker). Without the subsidy, the same plan would cost $648 a month. Most importantly, for purposes of the case, King wasn’t actually required to buy coverage at all: Under the law, he qualifies for a financial hardship exemption because the cost of subsidized insurance is more than 8 percent of his income.

Plaintiff No. 2 was Brenda Levy, a 64-year-old substitute teacher who lives outside of Richmond, Virginia. With her wild, frizzy hair and earthy clothes, Levy looks like an aging hippie. When I met her at her log-cabin-style house, she mentioned that she’d once belonged to the Sierra Club and used to read Mother Jones. Levy insisted she leads “a quiet life,” but she is politically active. She’s donated to conservative causes and has been involved in opposing gay rights. In 2013, she helped organize a rally to protest the Boy Scouts’ plan to admit gay kids.

Surprisingly, she didn’t recall exactly how she had been selected as a plaintiff in the case. “I’m gonna have to ask them how they found me,” she said. When I talked to her in January, more than a year after the case was filed, she’d still never met the lawyers handling it. Asked if she realized that her lawsuit could potentially wipe out health coverage for millions, she looked befuddled. “I don’t want things to be more difficult for people,” she said. “I don’t like the idea of throwing people off their health insurance.” She was under the impression that expanding Medicaid might help anyone who lost their insurance—unaware that Medicaid expansion was actually part of Obamacare, or that the same groups backing her lawsuit have opposed this expansion in her state.

Levy claimed Obamacare gives the government control over Americans’ medical treatment and had caused insurance premiums to rise. She told me her monthly premiums, purchased outside the exchange, were more than $1,500, which she attributed to health woes, including two hip replacements and two craniotomies. “I’ve had some holes drilled in my head,” she quipped. Levy hadn’t checked out the plans she qualifies for under Obamacare, but an affidavit filed by the government in King v. Burwell indicates that she could have purchased a low-cost plan on the federal exchange for $149 a month.

Tracking down the third plaintiff wasn’t so easy. The home address 56-year-old Rose Luck had provided in legal filings turned out to be an extended-stay motel on a commercial strip in Petersburg, Virginia. When I finally reached her by phone, Luck hung up on me. Contacted via Facebook, she responded, “Please leave me alone.” But social media and public records provide a snapshot of her life. On her Facebook page, she has called Obama the “anti-Christ” and voiced her belief that he came to power because “he got his Muslim people to vote for him.” She has warned that Obamacare will cost people $77,000 a year.

Since the late 1990s, Luck and her husband have faced legal judgments for nearly $5,000 in unpaid medical bills, something that typically happens to people with inadequate or no insurance. (The judgments have since been paid off.) Luck’s Facebook page also made clear that she had experienced serious health problems, raising questions about her insistence that she would prefer to go uninsured or buy high-deductible catastrophic coverage. According to government filings, the cheapest plan available to her on the exchange would cost $333 per month. And like King, she is eligible for a hardship waiver.

The final plaintiff was Doug Hurst, another Virginian in his early 60s. According to bankruptcy filings, Hurst and his wife had more than $8,500 in out-of-pocket medical expenses in 2009. His insurance premiums in 2010 were $655 a month. Under Obamacare, Hurst could have purchased a bronze health plan for $62 a month. I never spoke with him, but I reached his wife, Pam, on the phone. She declined to talk about the case or her family’s experiences with the health care system. (In 2009, her 37-year-old daughter died following a long struggle with schizoaffective disorder.) She told me angrily, “I’m very well aware of my situation. You are not. You are not aware of extenuating circumstances. I don’t have to justify my life, the loss of my child, which included the loss of a business, to anyone, do you understand?”

The weakness of the King plaintiffs’ individual claims of injury—particularly given the fact that Obamacare would likely help, not hurt, them—suggests that it wasn’t easy to find people to join CEI’s lawsuit. When I mentioned this to Michael Carvin, the plaintiffs’ lead lawyer, he bristled. “Linda Brown was the only plaintiff in Brown v. Board of Education,” he retorted, invoking the Supreme Court case that led to school desegregation. “Does that suggest there weren’t a lot of people who supported her point of view?” (In fact, Linda Brown’s father was one of 13 original plaintiffs in that case, which was filed as a class action.)

During the oral arguments before the Supreme Court in March, Justice Ruth Bader Ginsburg quizzed Carvin about whether his clients actually had the legal standing to bring the case. “At least one plaintiff has to have a concrete stake in these questions,” she said. “They can’t put them as ideological questions.” Carvin responded that the lower courts had accepted his clients’ qualifications. Ginsburg wasn’t deterred from probing further. “The court has an obligation to look into it on its own,” she said.