Justice Sotomayor’s Ingenious Solution to the Agency Fee Problem

I spent most of yesterday answering questions and reading analysis about oral arguments in the Friedrichs case before the U.S. Supreme Court. Everyone seems to be enjoying reading the tea leaves, but we’ll find out soon enough. In the meantime, it is only prudent for the unions to continue to prepare for the worst.

Almost all of the commentary I read focused on the line of questioning – often hostile – by the conservative Justices towards attorneys for the union respondents. I can’t fathom how everyone overlooked this fascinating proposition by Justice Sonia Sotomayor.

We’ve already permitted subsidization of bar associations, of government programs. We’ve permitted assessments on a lot of different levels, so why can’t the government, as employer, create a State entity? Because this union under California law is a State entity.

I don’t know what went through the mind of Friedrichs attorney Michael A. Carvin upon hearing this, but he responded in the only sensible way.

“No,” he said.

Justice Sotomayor then read from the respondents’ brief of the California Attorney General, which cited the Perry case.

“When recognized as the exclusive bargaining representative, a union assumes an official position in the operational structure of a school.” So it seems to me that ­­– and California tells the union what topics it can negotiate on, it requires them to do training, and in the end it accepts their recommendations with respect to the issues of employment at its own will, meaning the State is creating the union as part of the employment training and other responsibilities.

The discussion then veered off into the weeds of whether the teachers’ union is a creation of the State, which I’m sure must have puzzled the union members and officers in the audience. Justice Sotomayor eventually returned to the debate. She asked Carvin whether, without the benefit of agency fees, the union could claim it could not financially fulfill the duties of exclusive representative and ask the school district to pay those expenses.

Carvin then asked if she meant could the government subsidize the union’s collective bargaining efforts. “Mm­-hmm,” she replied.

MR. CARVIN: I think they might be able to, but of course no State—

JUSTICE SOTOMAYOR: All right. So why can’t they assess ­­ — why can’t they assess all of their employees a tax for that contribution?

Who could have guessed that the way out of the agency fee mess was for school districts to form company unions? And then charge teachers for the privilege?

Carvin noted this would be a violation of the National Labor Relations Act and the discussion moved on. It apparently stuck in the mind of Justice Samuel Alito, however. Later on, when California Solicitor General Edward C. Dumont was beginning to present his case, Justice Alito interrupted him:

JUSTICE ALITO: Before you get into that, could I just ask you a preliminary question that came up earlier in the argument? Do you think that the California Teachers Association is an agency of the State of California?

MR. DUMONT: No. I think a — ­­ a — ­­ a union that becomes an exclusive representative, under the Perry case, has an official place in the functioning of the school district. But it is not ­­– it does not become an organ of the State.

Some of us here in California have often worried that CTA was a de facto part of the government. Apparently Justice Sotomayor thought it was de jure.

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