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Supreme Court Considers Major Blow to Public Sector Unions

April 8, 2016

By Noah R. Jordan, Esq.

On January 11, 2016, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case with the potential to have a more consequential impact on the future of public sector unions than any case in recent years.  The specific legal question for the Court to answer is whether it should overturn its 1977 holding in Abood v. Detroit Board of Education.  In that case, the Court weighed whether non-union members in the public sector could be forced to pay union dues.  The Court held that while non-members cannot be compelled to pay dues, they can be required to pay “fair share” or “agency” fees in order to cover the union’s costs of negotiating contracts that will govern their employment, and from which they will benefit.

The plaintiffs in Friedrichs are a group of California public school teachers who are non- members.  These teachers have asserted that the requirement that they pay a “fair share” or “agency” fee to the Union violates their First Amendment rights.  Specifically, they claim that having to pay fees of any kind to the Union forces them to identify with a political cause which they do not support.  California is one of twenty three states, as well as Washington D.C., governed by this requirement.  In response to these claims, the Union and California argue that it is necessary for the Union to be able to charge and collect these fees from both members and non-members alike in order for it to be financially capable of carrying out its duty to engage in collective bargaining with the School District, and to provide representation to all teachers covered by the terms of collective bargaining agreements signed by the parties.

This distinction between dues and fair share/agency fees was the key to the Abood Court’s decision and has governed public sector unions’ treatment of non-members for the past forty years.  The Friedrichs plaintiffs now are asking the Court to abolish this distinction and govern all forms of payment to public sector unions uniformly.  Additionally, the plaintiffs’ lawsuit challenges a provision of California state law which allows public sector unions to charge non-members with additional fees unrelated to collective bargaining.  Non-members who do not wish to pay these types of fees are able to “opt out” and receive a refund or reduction by providing the Union with written notice.  The plaintiffs asked the Court to reverse this rule, by holding that instead of opting out to avoid these fees, non-members only would be charged by providing notice to the Union that they wish to pay, making it an “opt-in” system.

The Union and California as well as those who have written “friend of the Court” briefs, including the Federal government, make several arguments in defense of fair share and agency fees.  First, they pointed out that these are not dues, they merely are fees covering the cost of the Union’s duty to bargain on non-members’ behalf.  Furthermore, they argued that this arrangement avoids a “free rider” problem, whereby non-members’ would reap the benefits of the Union bargaining on their behalf but would not have to contribute anything to help cover the cost of this process.  Also, they pointed out that the type of fees being challenged in the case are not used for political spending, as the law requires that these expenses be kept distinct and separate so that non-members cannot be compelled to contribute financially toward certain political groups or candidates.  Finally, if the Court is to overturn Abood, it would mean that one of the major foundations upon which public sector unions have entered into collective bargaining agreements over the past forty years will be wiped out.  This, they argue, would result in stripping unions of the financial ability to enforce those agreements and carry out their duties under them.

The experience of public sector unions in so-called “Right to Work” states undeniably illustrates that when employees covered by collective bargaining agreements no longer are required to either join a union or pay dues or agency fees, membership plummets.  Few disagree that if the Court overturns Abood, it means that public sector unions’ membership will shrink substantially.  While only 11% of Americans are union members, a much higher percentage of public sector employees, 36%, are members.  If this number goes down, this of course also means that the unions’ coffers will shrink as well, affecting unions’ abilities to conduct business and, more importantly to the plaintiffs, maintain a presence in the political arena.

Based on the questions asked by the five conservative justices (Chief Justice Roberts and Associate Justices Scalia, Thomas, Kennedy, and Alito), most Court watchers predict a 5-4 decision to be issued in favor of the plaintiffs, which would cause major concern for the future of the public sector labor movement.  A decision will be issued in late June, at which time we will provide you with an update and an analysis of what the Court’s ruling means for public sector union members.

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