The Legal Case Unions Fear They Cannot Win
Can government workers be forced to pay fees to unions? The Supreme Court seems inclined to say no.
It has been a difficult five years for government-employee unions, and the Supreme Court appears poised to strike another blow. During the current term, the justices will hear Friedrichs v. California Teachers Association, a case challenging rules in 23 states—including California, Illinois and New York—that force government workers to pay hefty “agency fees” to unions that they have no interest in joining.
Labor activists call these “fair share fees,” on the theory that nonunion workers, even if they don’t pay full dues, still benefit from collective bargaining—for example, from a wage increase negotiated by union representatives. In a brief filed last week with the Supreme Court, the California Teachers Association argued that such fees are vital “to avoid labor strife, to secure economic stability, to insure the efficiency and continuity of state and local governments.”
Forty years ago, the Supreme Court bought that argument. The court’s 1977 ruling inAbood v. Detroit Board of Education affirmed a Michigan law that required teachers opposed to their union to pay the agency fee anyway. For decades, this precedent has supplied unions with a steady stream of revenue from nonmembers.
Yet labor leaders are increasingly pessimistic about the agency fee’s prospects in court. Last year the California Teachers Association produced a remarkable document for internal consumption titled, “Not if, but when: Living in a world without Fair Share.” Several months later, eight state teacher unions under the aegis of the National Education Association turned out a strategic document titled, “Engaging members and leaders in a non-agency world.”
What has them spooked? In recent years the Supreme Court has narrowed the prerogatives that unions enjoyed under Abood. The 2012 ruling in Knox v. SEIU held that a California union had violated the rights of nonmembers when it assessed a special fee to support political campaigns without first asking the nonmembers to opt in.
Equally important, the justices seemed to signal that they would be willing to reconsiderAbood entirely. “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech,” Justice Samuel Alito wrote for the majority inKnox. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”
Now, in Friedrichs, the court will hear a case that turns on precisely that issue. The lawsuit was brought by Rebecca Friedrichs and nine other California educators against the California Teachers Association (CTA). It argues that forcing teachers who do not belong to the union to pay agency fees averaging $650 annually violates their First Amendment rights, and that the union’s collective bargaining is itself a political act that they should not have to support.
If the Supreme Court in the end does overturn Abood, the practical effect could be the equivalent of passing a national right-to-work law for government employees.
Although labor leaders have vigorously contested these cases, they have also begun to prepare for a potential loss by getting back to the basic task of recruiting members. The American Federation of State, County and Municipal Employees and the Service Employees International Union have organized aggressive campaigns to convert nonmembers who pay the agency fee to full membership before the Supreme Court rules on Friedrichs. Afscme’s goal, according to press reports, is to persuade 30% of its estimated 130,000 fee payers to join (total membership is 1.3 million). Locals are running The Legal Case Unions Fear They Cannot Win - WSJ:
