DAVID GREENE, HOST:
At the U.S. Supreme Court today, a major challenge to public employee unions. Union opponents want 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 a union but benefit from a contract that covers them. The decision later this year will have profound consequences, not just for the California teachers union in today's case but for police, firefighters, health care workers and other government workers all across this country. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: This is the way 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're required to pay an amount that covers the cost 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 - 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 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 gained benefits without paying their fair share. But in recent years, five Supreme Court justices have signed on to opinions strongly hinting they were ready to overturn that precedent.
Indeed, Justice Samuel Alito - the author of two key opinions - has all but invited the challenge posed by today's case. Rebecca Friedrichs is the public face of the lawsuit that bears her name. After 28 years on the job, she currently is a third grade teacher at Buena Park near Anaheim, Calif.
REBECCA FRIEDRICHS: In my opinion, the union's supposed financial benefits aren't worth the moral costs. They protect teachers who are no longer effective in the classroom. And they are more focused on self-preservation than they are on educating little children.
TOTENBERG: Friedrichs is a strong opponent of the $650 in yearly fees she says she's forced to pay, arguing that everything the union does is political.
FRIEDRICHS: They're used to promote the union's political agenda. So this is really a direct attack on our First Amendment rights.
TOTENBERG: Eric Heins, the current president of the California Teachers Association, says what's purely political is Friedrichs's case.
ERIC HEINS: It's really about an agenda to weaken and destroy unions.
TOTENBERG: He says he in fact got involved with the union because of concerns about teaching, especially No Child Left Behind and it's, quote, "incessant testing."
HEINS: What the union allowed me to do is to advocate for what I believe was good teaching and for my students without fear of retaliation.
TOTENBERG: In the Supreme Court today, lawyer Michael Carvin, representing the challengers, will tell the justices that what are technically called agency fees are unconstitutional.
MICHAEL CARVIN: You're forcing the employee to subsidize somebody else's speech.
TOTENBERG: Negotiating a public employee union contract he maintains is different from negotiating one for workers at the private sector.
CARVIN: When we're talking about public unions, everything they do inherently is a matter of public concern because every time they try and to get pension, health care and salary benefits, that comes out of the public fisc. So every dollar you spend for health care or salary is a dollar you can't spend on roads or children.
TOTENBERG: Lawyer David Frederick, representing the union, counters that what the challengers are seeking is a free ride on the union's back.
DAVID FREDERICK: No one is precluding the right of teachers to speak publicly about their beliefs concerning merit pay, to lobby the legislature, to express their views on these important issues in any way. 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.
TOTENBERG: The union and the state of California are on the same page in this case. They say that agency fee s give the union the resources to be able to make some hard deals, as they did in California during the Great Recession when the union negotiated furloughs and reductions in pay in many places so that more teachers could keep their jobs in hard times.
The union and the state argue that if the court were to overturn its 1977 decision, it would inevitably weaken unions. They would have to raise dues, pitting those who pay against those who don't. And the union would end up digging in its heels unreasonably in negotiations to prove its mettle. Lawyer David Frederick points to New York City and state in the 1960s and '70s, a times when agency fees were not authorized.
FREDERICK: There were literally hundreds of work stoppages in the public sector. And we're talking about the subway system, firemen, police, teachers who went out on strike. And just one week of a strike of the transit workers in New York could cost $1 billion to the economy.
TOTENBERG: 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. Even laws imposing harsh penalties for public employee strikes proved 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 a year. In today's case, the union and 23 states urge the Supreme Court not to risk that kind of chaos again. But Michael Carvin dismisses that justification outright.
CARVIN: The proof's 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.
TOTENBERG: But he adds, in a moment of puckish clarity...
CARVIN: It may impede their ability to become the largest political contributors to the Democratic Party.
TOTENBERG: The court's 1977 decision is so wrong, he says, that it's time to reverse it. The union and the state of California warn that if that happens it would unsettle tens of thousands of union agreements across the country. A decision is expected by summer. Nina Totenberg, NPR News, Washington.