Tag Archives: Supreme Court

Supreme Court majority is critical of compelled public employee union fees

111004_scotusjustices_ap_328United States Supreme Court justices.

By Robert Barnes

A majority of the Supreme Court on Monday seemed prepared to hand a significant defeat to organized labor and side with a group of California teachers who claim their free speech rights are violated when they are forced to pay dues to the state’s teachers union.

By their questioning at oral argument, the court’s conservatives appeared ready to junk a decades-old precedent that allows unions to collect an “agency fee” from nonmembers to support collective-bargaining activities for members and nonmembers alike.

It is the most important Supreme Court case of the year for unions and one of a clutch of politically charged cases that puts the justices in the spotlight as the nation turns its attention to the elections of 2016.

The case involves only public-employee unions — not private workers — but those unions are the strongest segment of an organized labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states.

Conservative groups have directly asked the court to overturn a 1977 decision, Abood v. Detroit Board of Education, that favored the unions. That ruling said that states could allow public-employee unions to collect fees from nonmembers to cover the costs of workplace negotiations but not to cover the union’s political activities.

The unions say losing those fees would be a heavy blow because there is no incentive for workers to pay for collective-bargaining representation they could receive for free. About 20 states, including California, allow what the unions like to call “fair-share” fees.

But conservative justices sharply questioned whether it was possible to separate public-employee negotiations from the kind of public policy questions — teacher salaries and classroom sizes, for instance, and the tax dollars that must be raised to pay for them — that are raised.

“When you are dealing with a governmental agency, many critical points are matters of public concern,” said Justice Anthony M. Kennedy, who traditionally is the most likely of the court’s conservatives to join with liberals to form a majority.

Some teachers disagree with their unions on issues such as merit pay, promotion and the importance of seniority, Kennedy said.

The fees “require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points,” he said.

It is not enough to argue that the teachers can speak out on their own as citizens, he said.

In the current case, union leaders were not counting on Kennedy but on another conservative, Justice Antonin Scalia.

Scalia in the past has expressed sympathy for the view that the unions needed to collect the fees to prevent “free riders” — those who benefit from the agreements that unions reach with government employers but who do not pay for the union’s costs. But he did not pose any questions Monday that favored the union’s view and said he shared Kennedy’s concerns.

“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he said.

He also questioned the contention that the unions would not survive without collecting the fees. Already, there are 25 states that do not require their collection, and Scalia said the unions should do a better job of persuading those eligible to join.

California Solicitor General Edward C. DuMont, who was aligned in the case with the teachers union, said the California unions already had extraordinary participation but prohibiting agency fees fights human nature.

“Many people can want something in the sense they view it as very advantageous to themselves, but if they are given a choice, they would prefer to have it for free, rather than to pay for it,” he said. “This is a classic collective-action problem.”

Oral arguments are not always predictive, but it seemed clear that DuMont, California Teachers Association attorney David C. Frederick and Solicitor General Donald B. Verrilli Jr., representing the Obama administration, were treading against the tide.

The court’s five conservatives in 2012 and 2014 had expressed grave doubts about whether the Abood decision had properly taken into account the First Amendment rights of the union objectors.

It has been the pattern of the court headed by Chief Justice John G. Roberts Jr. to take incremental steps toward undermining a precedent with which it disagrees before delivering a final blow.

The court’s liberals said the challengers had not made the case for why the court should abandon a precedent rather than take the normal path of upholding it.

[Two teachers explain why they want to take down their union]

Justice Stephen G. Breyer said the Abood “compromise” had worked pretty well over the last 40 years. When the court starts overruling precedents, he said, “What happens to the country thinking of us as a kind of stability in ­­a world that is tough because it changes a lot?” Breyer asked.

Justice Elena Kagan also pushed that theme, telling Washington attorney Michael A. Carvin, who represented the objecting teachers, that he had a “heavy burden.”

“That’s always true in cases where somebody asks us to overrule a decision. It seems to be particularly true here,” Kagan said. “This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees, maybe as high as 10 million employees. So what special justification are you offering here?”

Carvin replied that the strongest reason for overturning a precedent is when it “erroneously denies a fundamental right’’ — in this case, freedom of speech and association.

Kagan and other justices said the court’s precedents were clear that when government is acting as an employer, it can act as any employer in restricting employee rights.

Frederick argued for leaving the decision about requiring fees to the individual states, rather than forbidding the process. “Different states have different experiences, and this is an opportunity for the states to draw upon those distinctive experiences in coming up with a system that’s fair for everyone,” he argued.

There seemed to be two options if a majority disagreed with Abood but was reluctant to overturn the precedent.

The justices could remand the case to the lower courts. Carvin and his clients had raced through the lower courts in hopes of getting the case to the Supreme Court faster.

The justices could also change how the agency fees are collected. Currently, the fees must be paid, and then employees “opt out” of funding the union’s political activities and receive money back. Objecting employees say that minimizes the burden on them.

But there was limited questioning from the justices about whether such a change might be an alternative to overturning the system.

The case is Friedrichs v. California Teachers Association.

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U.S. Supreme Court denies teachers’ Katrina layoffs suit

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It’s the end of the road for the thousands of New Orleans public school employees who said they were wronged when they lost their jobs after Hurricane Katrina. They lost in Louisiana in October, and the U.S. Supreme Court denied their appeal Monday (May 18), according to court documents.

The Louisiana Supreme Court’s decision against the plaintiffs was doubly negative — most of the court’s justices threw the case out, and said they would have ruled against the plaintiffs anyway — and doubly surprising, because the teachers had won at trial in theappeals court. The trial judge awarded damages that could have totaled $1.5 billion.

About 7,500 teachers and staff were part of the suit. It charged that the Orleans Parish School Board did not follow proper procedures when it laid off almost its entire workforce after the 2005 storm. Moreover, plaintiffs said, the state Recovery School District, which took over most of the schools, should have given them priority in hiring.

Despite Monday’s ruling, the plaintiffs aren’t giving up. Willie Zanders, their attorney, said he will turn to the executive branch and Congress to investigate the possible misuse of $500 million in post-Katrina grants to the schools. At the time, Louisiana Education Superintendent Cecil Picard based his request on the need to pay school staff, Zanders said. But trial Judge Ethel Simms Julien of Orleans Parish Civil District Court said in her decision that the state “diverted these funds to the RSD.”

In the best-case scenario, Zanders said, Congress would require Louisiana to repay the money to the federal government then pass legislation directing the money to the laid-off school employees.

“You don’t quit after 10 years. If you believe in something, you fight. Justice has no time deadline — or we’d still be in slavery,” Zanders said.

Justice has no time deadline — or we’d still be in slavery.” – Plaintffs’ attorney Willie Zanders.

Representatives of the Orleans Parish School Board and Louisiana Education Department did not immediately respond to a request for comment Monday.

The U.S. Supreme Court hears cases when they concern the federal Constitution. The plaintiffs argued that their due process rights had been violated under the 14th Amendment. They also said the case brought up “the unsettled important question of state-mandated priority consideration for employment” discussed in two 1972 decisions, according to their reply brief to the high court.

>>> Nola.com

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Louisiana Teachers, Fired After Katrina, Lose Again.

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After Hurricane Katrina, 7,500 public school teachers and other staff were fired by the new Recovery School District. Three-quarters of them were African American. Eventually almost every public school was converted to a privately managed charter, many staffed by Teach for America corps members.

The fired teachers sued for back pay. The Louisiana Supreme Court rejected their appeal, in a 5-2 split decision.

In October, the Supreme Court had overturned decisions favorable to the teachers in lower courts. The teachers said were dismissed en masse, without evaluation or due process.

At that time, the case was described in these terms:

“The case had ramifications beyond the public purse, and beyond the emotional and financial hit experienced by the employees, whose termination letters were in some cases delivered to houses that had been washed away in the storm. It became a symbol for people who felt disenfranchised when the state, saying the Orleans Parish School Board had failed its children, took over four fifths of the city’s public schools in the fall of 2005. Many teachers objected that they were all painted with the same brush as incompetent. And analysts such as former Loyola University professor Andre Perry said the layoffs knee-capped the city’s African American middle class.”

The earlier article explained the Supreme Court’s reasoning:

“That was not why the state Supreme Court dismissed the case, however. The majority invoked the principle of res judicata, which holds that a case cannot be argued if it covers the same people and arguments as a previous case.

“Indeed, most of the individual plaintiffs were members of the United Teachers of New Orleans. That labor union in 2007 settled several similar lawsuits against the School Board for $7 million, about $1,000 per union member. The Supreme Court decided those settlements sufficiently addressed the plaintiffs and questions in the current case.

“But the majority also accepted the defendants’ arguments across the line. Even if the case had not been dismissed, “neither the OPSB nor the State defendants violated plaintiffs’ due process rights,” Justice Jeffrey Victory wrote.

“The 4th Circuit Court of Appeal had found that the School Board should have created a recall list and systematically used it to hire back employees. The Supreme Court, on the other hand, while deciding that an employee hotline set up after the storm did not constitute an official recall list, determined that “imperfect” post-Katrina responses were good enough to satisfy the state Constitution given the circumstances.

“Furthermore, the fact that almost all the jobs disappeared permanently made a difference, Victory wrote: “The Teacher Tenure Laws did not envision, nor provide for, the circumstance where a massive hurricane wipes out an entire school district, resulting in the elimination of the vast majority of teaching positions in that district. It would defy logic to find the OPSB liable for a due process violation where jobs were simply not available.”

“Nor would the state have been liable for not systematically hiring the Orleans Parish employees, Victory wrote, because the Legislature gave the Recovery School District the auth0rity to hire whomever it wanted.”

Read more courtesty Diane Ravitch’s blog

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