The last three years have been tumultuous for unions at the Supreme Court. Repeatedly, unions and their advocates have braced for the worst as the right-leaning Court has agreed to hear cases posing existential threats to organized labor. Unions representing public sector workers have had the most cause for concern as the Court, led by Justice Alito, has repeatedly called the constitutionality of public sector agency fees into doubt. But the Court has also taken on critical questions affecting private sector unions, including the legality of key organizing tactics in the private sector, and the scope of retiree health benefits.

Union lawyers have had good reason to fear the worst from the Roberts Court—many of the Justices, including frequent swing-vote Justice Kennedy, are at best distrustful of labor unions, though Justice Kagan, who taught Labor Law at the University of Chicago, is a bright spot. Yet, the Court has refused to go along with union opponents’ most extreme positions—its bark has been worse than its bite. The big question, though, is whether that pattern will continue to hold with this year’s decision in Friedrichs v. California Teachers Association.

Will Justice Alito’s Legacy Be The Dismantling of Public Sector Agency Fees?

It has been settled since the 1977 Supreme Court case Abood v. Detroit Board of Education that union-represented public workers may not be compelled either to join a union or to contribute to union expenses that are unrelated to collective bargaining. Conversely, public employees can be required to pay agency fees, reflecting their share of the union’s representation expenses. On one hand, this compromise reflects the Court’s view that some public employees reasonably object on ideological grounds to union positions. However, the Court also understood that the structure of union representation—in which elected unions serve as the exclusive representatives of, and owe a duty of fair representation to, each worker in a bargaining unit—would create an incentive for workers to “free ride” if union fees were made entirely voluntary. At worst, represented workers could then become resentful of paying for their colleagues’ union representation and decide to become non-payers themselves, ultimately leaving the union without the resources required to negotiate and enforce solid contracts. The Abood Court concluded that the First Amendment did not require states to risk this instability in their labor relations—instead, they could require workers to pay an agency fee.

The fundamental Abood compromise was stable for more than thirty years. To be sure, the Court nibbled around the edges in cases about whether particular categories of expenses were or were not chargeable to agency fee-payers, and imposed strict procedures to protect fee-payers. But in 2012’s Knox v. SEIU Local 1000, Justice Alito sent a troubling signal: although Knox was about the procedures required when a union imposed a mid-year dues increase, Alito nonetheless commented on Abood itself, writing that “[o]ur cases to date have tolerated [mandatory public sector agency fees], and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” Reading between the lines, even though the Court did not have the opportunity to revisit Abood in Knox, at least some of the Justices would welcome an opportunity to consider overruling it in another case.

And then there was another, even stronger signal: the Knox challengers argued that they were entitled to a fresh notice and opportunity to opt out in light of the dues increase. But the Court went further, holding that the union was required to obtain affirmative consent before charging workers. Not only was that remedy nearly unprecedented in constitutional law, but it signaled to would-be agency fee challengers that they should not be timid; the Court was open to novel arguments, and willing to move quickly.

And, indeed, groups like the National Right to Work Legal Defense Foundation (NRTW, which also litigated Knox) and the Center for Individual Rights quickly began to file new cases and to advance more aggressive arguments in existing cases. One of those, Harris v. Quinn, was soon accepted for review by the Court.

The issue in Harris, as it had been litigated in the lower courts, was whether the Abood rule applied to home healthcare workers who were hired by individual clients, and then paid out of state Medicaid funds. These workers were not considered to be public employees for most purposes, except for collective bargaining. And, indeed, a group of homecare workers had elected SEIU Healthcare Illinois & Indiana as their bargaining representative; subsequent negotiations led to significant raises, benefits hikes, and other improvements—in addition to an agency fee clause, the basis of the Harris challengers’ case.

In the lower courts, the challengers limited themselves to arguing that Abood did not apply because homecare workers were different than traditional public employees; as they put it, because the state had limited oversight over homecare workers, its interest in facilitating bargaining was relatively weak. But once the Court decided Knox and agreed to hear Harris, the scope of the challengers’ arguments expanded dramatically; perhaps they were determined not to be outstripped by the Court again. Whatever the reason, the challengers argued not only that Abood should not apply to homecare workers, but also that Abood should be overruled altogether, and even that exclusive representation itself was unconstitutional in the public sector. (Several Justices seemed baffled by this last contention during oral argument, and the challengers’ lawyer ultimately abandoned it—though NRTW has subsequently continued to press this argument in other cases, so far without any success.)

All of these new arguments were for naught; the Harris challengers won, but on their most narrow grounds: because homecare workers were not traditional public employees—they were instead, in Justice Alito’s novel terminology, “quasi” or “partial” public employees—the Abood calculus did not apply to them.

There is much to criticize in Justice Alito’s Harris opinion; in this regard, Justice Kagan’s dissenting opinion is required reading. However, the aspect of the majority opinion that garnered the most speculation was a lengthy section, early in the opinion, devoted entirely to criticizing Abood. But of course the decision did not overrule Abood—instead it held that the decision did not apply to the homecare workers. So why spill the ink on something that was ultimately a diversion?

There are two theories. The first was that Justice Alito initially drafted an opinion that overruled Abood, but could not attract four more justices to sign it. Then, to keep his majority, he shifted to a narrower rationale, rendering the Abood criticism superfluous. The other is that Justice Alito was seeding the next case with legal theories and language on which Abood’s opponents could rely.
Proponents of the second theory—by far the more troubling one for labor—received a boost when, at the end of June 2015, the Court agreed to hear Friedrichs v. California Teachers Association. That case presents two issues: first, whether Abood should be overturned and agency fees declared unconstitutional in the public sector; and second, whether unions must obtain affirmative consent from represented non-members before charging them any non-mandatory fees. None of the liberal Justices would have voted to hear Friedrichs, given the likelihood the court would overturn Abood; and it would have been an odd strategic choice for the conservative Justices to vote to hear the case if they knew that at least one of their number would refuse to overrule Abood. Still, it takes only four Justices to vote to hear a case, and five to decide it—conceivably, at least one of the conservative Justices is at least conflicted about restricting states’ rights to manage their workforces through collective bargaining with a union that may collect agency fees.

The Friedrichs plaintiffs’ main theory is that public sector bargaining is indistinguishable from political speech, like lobbying. That claim was advanced at oral argument by Michael Carvin, the lawyer notable for his blustery performance in both Supreme Court challenges to the Affordable Care Act. In a sense, that argument is unremarkable: Abood itself recognized that public sector bargaining has a political valence while still upholding agency fees as a reasonable compromise. Yet, the five more conservative justices signaled that they were willing to undo Abood and impose “right to work” throughout the public sector. In particular, Justice Scalia gave union advocates little reason for hope: when the CTA’s lawyer suggested that strong unions bolstered by agency fees could help improve labor relations and public services, the conservative Justice responded that the argument “doesn’t mean anything to me.”

There is a certain irony about the conservative Justices’ disdain for agency fees. First, those same Justices have frequently voted to limit public employees’ speech rights in other contexts, circumscribing their rights to speak out about their working conditions. Second, the Justices who are the strongest proponents of federalism are the most likely to vote to limit states’ choices when it comes to workforce management, an area where states’ interests in autonomy are arguably at their greatest. Still, it is too early to count Abood out.

The Private Sector Cases

Given their potential ramifications, it is unsurprising that the public sector cases have received far more public attention than the Supreme Court’s recent cases involving unions in the private sector. Still, the Court has heard argument in two private-sector union cases in recent years, though it decided only one.

The case that ultimately went undecided was UNITE HERE Local 355 v. Mulhall. In that case, the Eleventh Circuit Court of Appeals had decided—contrary to other circuit courts that have addressed the issue—that neutrality agreements could sometimes violate the Labor Management Relations Act’s proscription against employers giving any “thing of value” to a labor union seeking to represent its employees. After briefing and oral argument, the Court concluded that serious jurisdictional problems plagued the case, and dismissed it as “improvidently granted.” However, this decision left the Eleventh Circuit decision in place, making it a near certainty that its influence will continue to be felt in litigation over future neutrality agreements.

Finally, the Court decided M&G Polymers v. Tackett, concerning the interpretation of collective bargaining agreements that require employers to fund retiree health benefits. These provisions are frequently ambiguous. To see why, imagine an agreement that simply states that “the company will provide retiree health benefits,” with no clear stopping point. That may seem like a straightforward lifetime promise, until one considers the effect of the agreement’s durational clause. Reading those two clauses together, does the promise to provide health benefits end with the contract? Worse, benefits provisions are never that simple—they are often complex webs of contracts, side agreements, and addenda, with ambiguity as an inevitable side-effect.

Since 1983, the Sixth Circuit has resolved these ambiguities in favor of lifetime benefits. The Third Circuit did the opposite, resolving ambiguities against retirees. In Tackett, the company’s lawyers asked the Court to hold that the Third Circuit’s approach was correct—a result that would have been disastrous for retirees. However, the Court refused this invitation, though it rejected the Sixth Circuit’s approach too. This leaves lower courts in future cases in the unenviable position of determining the parties’ intent without the aid of any presumption—an especially difficult task in cases where the core retiree health provision was negotiated decades earlier, and then built upon in later contracts.

Looking Forward

There is no denying the hostility of several sitting Supreme Court justices to organized labor. Still, there is room for limited optimism—the Court has proven itself unwilling to adopt the most radical anti-labor positions put to it in recent cases; the key question is whether that pattern will hold with Friedrichs. It is likely, however, that the next President will have the opportunity to fill at least two, and as many as four, Supreme Court vacancies, making it impossible to say what the Court will look like when it encounters the next round of labor cases. These may involve the NLRB’s new joint employer standard, its jurisdiction over religious colleges, or its conclusion that employers’ mandatory class action waivers violate the NLRA. Likewise, a new round of campaign finance cases, and challenges to critical protections for working people are sure to come. Whether these legal theories are likely to be embraced or rebuffed will be evident in November.