Editor’s note: This post examines Friedrichs v. California Teachers Association, a case the Supreme Court has agreed to review during its upcoming Term.  The blog will be hosting a symposium on the case this week.
Labor unions that represent government workers are now facing a series of challenges, not least of which is the blame for pushing up the pension and other costs that state and local governments contend they can no longer afford — as in Detroit’s $18 billion bankruptcy.  They also see a high-profile presidential candidate — Wisconsin Governor Scott Walker — basing much of his campaign on the pride of having beaten down those unions in his home state.  But their biggest worry right now may lie in the Supreme Court, where the Justices are to take up a case against them during the new Term starting in October.
There is a lot of history behind this dispute. The specific case focuses on dues charged by unions representing the public school teachers in California, but it raises much broader questions.  The future of public-sector unionism itself could be at stake.  Let’s sort this out, simply.
Labor unions in America have definitely seen better days.  Membership in unions has been plummeting for years: from a high in 1945, when one of every three workers belonged to a union, the number is now down to fewer than one in ten.  Unions in the private sector have fared the worst: only about 6.6% of workers in industry belong to a union now.
That has left public-sector unions, representing 35.7% of government workers, to carry the lead banner for organized labor across the United States.  But the public-sector unions have been losing favor in an important venue: the Supreme Court.  They now face, in the Court, at least the prospect of losing a significant chunk of their financial support.
These dire prospects are part of a long-term trend that grows out of a hard reality for U.S. unions in general: for generations, they have been caught between a legal duty, on one hand, and, on the other, a resistance movement within the ranks of workers they represent.  If a union wins the legal right to represent a group of workers in what is called a “bargaining unit” — a company’s whole workforce, or a defined part of it — it has the obligation to deal with management on behalf of all of the unit’s workers, whether or not they have joined the union as members.  Any workplace benefits it wins go to all the workers, not just the members.
But a movement that often goes by the phrase “right to work” has long kept the unions from getting all the unit’s workers to join. Ir used to be that some unions were allowed to make union membership a condition of even having a job (that is, a “union shop”).  That has become a casualty of the success of the opposition, the “right to work” movement.
Many workers across the nation do not want to join a union, and they generally have the legal right to refuse.  But, for labor unions in both the private sector (since at least 1944) and the public sector (since 1977), the organizations can charge non-members a monthly fee that is supposed to compensate the union for activities that directly benefit those workers, too.
This fee is less than what the members pay each month, and unions are supposed to calculate the non-members’ monthly fee (a so-called “agency fee”) so that it only covers those workers’ share of what the union does to represent all workers on wages, hours, and conditions in the workplace (the bargaining issues).
Labor unions, though, do a good deal more than bargain with management over workplace contract issues.  They actively lobby legislatures, at state and federal levels, to try to get new laws to support workers and their families.  And many of them are very active in politics, especially election campaigns.  For decades, unions have been a hardy core of the Democratic Party’s followers.
The union’s costs of carrying on those non-bargaining activities cannot be included in the calculation of what non-members in the unit pay in their monthly fee, if those workers object to paying anything to support those efforts.
The Supreme Court has been at the center of the fee issue in American unionism for a long time, and most of its rulings on fee questions have come in cases involving private industry.
In two key decisions, in 1956 and 1961, the Court ruled that workers in the private sector can only be required to pay a fee to cover the union’s bargaining costs.   Those were decisions interpreting federal labor law, rather than the Constitution.
The Court turned to the public sector for the first time in 1977, in Abood v. Detroit Board of Education.  The Justices ruled that requiring non-members to pay an agency fee did not violate their rights under the First Amendment.
Even though public-sector unions do engage in political activity, in the broader sense of that phrase, the Court said, non-members do not have to cover those costs; non-members are entitled at least to a refund if they are charged for costs other than bargaining, according to the ruling.
In several decisions since then, the Court has clarified how the agency fee system is supposed to work.  The non-members must be given advance notice of what their fee will be, and how it is calculated; any time the union starts a new activity that affects its costs, it must give a new notice of how the fee is going to be set, and the union must have a neutral decision-maker to decide fee disputes.