The U.S. Supreme Court this week agreed to hear a challenge to its 40-year-old precedent permitting public-sector unions to compel nonmembers to pay service fees, a move that threatens to further undercut the already weakened labor organizations, including in K-12 education.
If the court overrules its 1977 decision, teachers’ unions in 25 states and the District of Columbia could no longer collect the fees from teachers who do not wish to be members. They would face the elimination of a significant source of revenue, and would almost certainly experience member defections.
“The court is threatening to put a dagger very close to the heart, financially speaking, of the way labor unions operate,” said Lee Howard Adler, a lecturer at Cornell University’s Institute of Labor Relations and an expert on public-sector bargaining.
Brought by 10 California teachers and a Christian educators’ group they belong to, Friedrichs v. California Teachers Association alleges that requiring nonmembers to pay what’s called “fair share” or “agency” fees violates the teachers’ constitutional rights to free speech.
Unions charge those service fees to cover the administrative cost of bargaining policies that benefit all teachers, such as salary increases.
A Ground-Shifting Case
The Supreme Court’s decision to take up the case was not a surprise.
The precedent permitting public-sector unions to collect fair-share fees, Abood v. Detroit Board of Education, narrowly dodged a bullet last year when the court stopped short of invalidating it in its ruling in Harris v. Quinn.
In that 5-4 decision, the court held that unions couldn’t compel payment of the fees from Medicaid home-healthcare workers because they were not truly public employees, and therefore not covered under Abood. But writing for the majority, Justice Samuel A. Alito Jr. devoted page after page to undermining Abood, calling it “an anomaly” that doesn’t fit well with First Amendment rights. In effect, the ruling invited a more focused challenge to the precedent.
Enter Friedrichs, which takes aim at the California chapter of the National Education Association and several local affiliates.
The plaintiffs’ argument in Friedrichs, in essence, contends that the very act of collective bargaining is political because the teachers’ unions sometimes take positions—on seniority or evaluation, for example—that nonmembers may not support.
The teachers bringing the case also object to the annual procedure for opting out of union membership.
The nonunion teachers lost in a federal district court, and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled last year that they could only win if Abood were overruled by the Supreme Court.
The legal theory behind the suit, Mr. Adler said, represents a profound re-envisioning of the balance between individual and collective rights to political assembly that have guided about 50 years of employment and labor law.
“There has been a gradual evolution of a constitutional doctrine holding that being forced to pay dues violates an individual’s right to associate politically—and coerces one to be aligned with union policies and objectives in a way that violates First Amendment rights,” he said.
Unions Embattled
According to its most recent federal labor filings, the 3 million-member NEA has some 90,000 additional nonmember fee-payers. The American Federation of Teachers, which represents 1.6 million members, did not give a figure for nonmembers who pay fees.
The loss of fair-share fees would sting, but a bigger blow could be the potential departures of members who joined their local unions only because of the typically slim difference in cost between the fair-share fee and full membership. If the fair-share fee is eliminated, many such teachers may choose to boost their take-home pay by dropping their memberships.
Meanwhile, the case comes on the heels of several years of political attacks on unions. The NEA saw thousands of member losses after the 2010 election tilted statehouses rightward and several states prohibited or restricted collective bargaining.
Critics of the fees have also doubled down. In March, Michigan became the 25th state to pass a right-to-work law prohibiting the collection of fair-share fees.
“We hope the high court will follow through on last year’s Harris decision and ensure that no public employee will ever again be forced to pay union dues to get or keep a job,” said the National Right to Work Legal Defense Foundation in a statement.
Unions generally see the attack on fair-share fees as another attempt to weaken public-sector unions. They note that the push to overturn Abood and to craft right-to-work legislation has been funded by conservative groups.
Indeed, a blow to Abood could have major political ramifications. Labor unions heavily support Democratic candidates and have been among the groups putting muscle behind progressive priorities such as health-care reform and same-sex marriage.
The NEA and the AFT joined with other public-sector unions to criticize the court’s decision to take the case.
“The Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life,” the coalition said in a statement.
69ý the Signs
Michael A. Carvin, a Washington lawyer who is representing Rebecca Friedrichs and the other nonunion teachers challenging their agency fees, said in an interview that “the fact that the court granted review indicates great discomfort with Abood and the agency-fee regime it represents.”
But Alice O’Brien, the general counsel for the NEA, said that there is still some mystery about the Supreme Court’s internal debate from last term. “I think it’s clear they did not have the votes to overrule Abood in the Harris case,” she said. “I think it is still an open question where the fifth vote is.”
Nevertheless, the teachers’ unions have been preparing for the loss of fair-share fees, given the current Supreme Court’s ideological makeup. Seven NEA state affiliates have already crafted a guide on how to attract members should the fees be prohibited.
The union has also hired several field organizers from other unions, such as the Service Employees International Union, to improve organizing skills.
And in its public statements and positions, it has been pressing several themes, including overreliance on standardized testing, that resonate strongly with members.
The Supreme Court will hear arguments in Friedrichs v. California Teachers Association in its next term, which begins in October.
