The Supreme Court just agreed to take a major labor union case for its 2015-2016 sitting, titled Friedrichs v. California Teachers Association. At stake is the power of public-sector unions like Randi Weingarten’s American Federation of Teachers (AFT) to collect forced dues—so-called “agency fees”—from non-members forced to accept their representation in at least 25 states.
Several employees forced to pay agency fees—the lead plaintiff is elementary school teacher Rebecca Friedrichs—are suing the California Teachers Association (CTA), arguing that requiring public employees to pay any fees to a labor organization that they don’t support violates the First Amendment. Alternatively, if such fees are not facially unconstitutional, the Constitution might require paycheck protection for public employees—an opt-in, rather than opt-out, to paying for public unions’ political programs.
Current law in the 25 forced-unionism states, the District of Columbia, Puerto Rico, and all U.S. Territories other than Guam lets unions force all employees that they represent to pay the portion of dues that applies to collective bargaining. Certain rights to refrain from funding political expenditures that employees disagree with are set by two Supreme Court decisions: Communications Workers of America v. Beck in the private sector and Chicago Teachers Union v. Hudson in the public sector. But under Abood v. Detroit Board of Education, public employees can be forced to pay fees for “collective bargaining, contract administration, and grievance adjustment purposes.”
That may change. In its opinion in Harris v. Quinn, which struck down the SEIU’s forced “dues skim” from home-healthcare workers in Illinois and several other states, Justice Samuel Alito — writing for a majority of the Court — indicated strongly that he (and, implicitly, the majority of the unchanged Harris court) thought Abood needed to go. The fundamental contradiction at the heart of public-sector unionism, that employees can “elect” management and bargain over what are true public policies, seems to make compelling agency fees from public employees for any purpose equivalent to compelling them for political purposes, which has been long established as unconstitutional.
Public-sector unions like the CTA’s parent National Education Association (NEA), AFT, AFSCME, and the SEIU are clearly worried about the potential that Abood will be overruled. Politico reports on the unions’ statement: Devoid of legal reasoning or defense of forced dues, it is paint-by-numbers scaremongering:
“We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, 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,” they said.
Indeed, it does not appear that the unions expect forced dues to survive for long. Mike Antonucci notes that the NEA has already circulated a guide to union finance and organizing in a post-forced-dues world. The Washington Examiner’s Sean Higgins reported that the CTA has been strategizing for “not if, but when” California forbids forced dues.
Even if the unions win this case, the march of employee rights across the country poses a mortal threat to forced dues. Twenty-five states—up from 22 just three years ago—have enacted right-to-work laws that end all forced dues. Four more—Missouri, New Mexico, New Hampshire, and West Virginia—made serious (albeit unsuccessful) efforts to pass their own right-to-work laws in the most recent legislative sessions.