Supreme Court Heard Arguments In Case Over Public Sector Union Agency Fees

The Supreme Court Heard Oral Arguments In Friedrichs V. California Teachers Association. On January 11, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case brought by 10 California public school teachers who are challenging the state union's charging of “agency fees,” which are smaller fees charged to those who opt out of union membership that cover the union's costs of collective bargaining. The challengers claim that even routine union negotiation with public employers over workplace conditions, salaries, and retirement benefits are political in nature, and that charging such fees to non-members is a violation of their right to free speech. From a January 11 Associated Press report:

The Supreme Court appears ready to deliver a major setback to American unions as it considers scrapping a four-decade precedent that lets public-sector labor organizations collect fees from workers who decline to join.

During more than an hour of oral arguments Monday, the high court's conservative justices seemed likely to side with a group of California teachers who say those mandatory fees violate the free-speech rights of workers who disagree with a union's positions.

Labor officials fear unions' very existence could be threatened if workers are allowed to get all the benefits of representation without at least paying fees to cover the costs of collective bargaining. The case affects more than 5 million workers in 23 states and Washington, D.C.

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The challengers argue that public-sector unions have become more political over time. They say even a push for higher salaries and pension benefits raises political questions about the best use of tax dollars for cash-strapped localities. [Associated Press, 1/11/16]

Fox's Brian Kilmeade Mischaracterized Union Membership And Fees

Kilmeade Asserted People Are “Forced To Join Unions” And Non-Members' Agency Fees Go “To Political Causes.” While interviewing the plaintiff and a member of the legal team in the Friedrichs case on January 12, Fox & Friends co-host Brian Kilmeade asked if it was right for unions to “collect dues ... even if you're not a member,” then claimed that teachers were “forced to join unions,” falsely stating that “if you want to teach, that's what you have to do.” Kilmeade also asserted that “a lot of” the fees paid by non-members go “to political causes”:

BRIAN KILMEADE (HOST): [H]ere's a big, big story. Should unions be allowed to collect dues from your paycheck, even if you're not a member? In states like California, they can. And now, a group of teachers are challenging the controversial practice over how their money is being spent. Some of it just all goes to political causes, or a lot of it. Sarah Friedrichs is one of the teachers taking her case all the way to Supreme Court. She joins us now with her attorney Terry Pell, who gave oral arguments yesterday in front of the Supreme Court. Welcome to both of you. Thanks so much for joining us.

TERRY PELL: Thanks for having us.

REBECCA FRIEDRICHS: Thank you.

KILMEADE: Rebecca, you and nine other teachers brought this all the way up. You've had it with unions. How, in your mind, what were the unions doing that you were not happy with?

FRIEDRICHS: Well, the unions take stances in collective bargaining that we are totally opposed to. And unfortunately, the union in my district was voted in when I was a child. And you know, it didn't matter what I did, even when I served as a union representative, I couldn't make my voice heard. And the union continued to make decisions, and collective bargaining stances that were actually harmful to my students. So we just decided enough was enough.

KILMEADE: Terry we've heard this for the longest time, that you know, people who were forced to join unions, some people feel that they are are happy with it, and not happy with the agenda. But if you want to teach, that's what you have to do. What made you think that Rebecca and her nine friends had a case here?

PELL: Well, the First Amendment is clear. The state can't compel individuals to support an organization that takes positions that they fundamentally disagree with. Individuals have the right to decide for themselves what organizations they allow to advocate on their behalf. So when the union takes positions, not just political positions, but positions during collective bargaining, that teachers fundamentally oppose, they should not have to support the union. They should not have to pay money to the union. If they don't agree with what the union is doing, then it's up to them to decide whether to support it. [Fox News, Fox & Friends, 1/12/16]

Workers Are Not Forced To Join Unions, And Non-Union Members Pay Only Agency Fees To Cover Their Contract Protections And Representation

Economist Dean Baker: “Workers Are Never Required To Join Unions,” Even Though Unions Are Required To Represent Non-Member Workers. Economist Dean Baker, writing about a 2011 labor law bill in New Hampshire, explained that “collective bargaining agreements cannot require employees to join a labor union,” and that “national labor law requires that a union represent all workers who are in a bargaining unit regardless of whether or not they opt to join the union.” He continued:

This means that non-members not only get the same wages and benefits as union members, but the union is also required to represent non-members in any conflict with the employer covered by the contract. For example, if a non-member is faced with an improper dismissal the union is obligated to provide them with the same representation as a union member. [Alternet, 4/22/11]

Center For American Progress: “Federal Law ... Guarantees That No One Can Be Forced To Be A Member Of A Union, Or To Pay” For “A Political Or Social Cause They Don't Support.” A 2012 Center for American Progress Action Fund issue brief on anti-union laws explained that “federal law already guarantees that no one can be forced to be a member of a union, or to pay any amount of dues or fees to a political or social cause they don't support.” [Center for American Progress Action Fund, 2/2/12]

NLRB: Workers That Don't Want Full Union Membership “Pay Only That Share Of Dues Used Directly For Representation” Of Union Contract They Work Under. The National Labor Relations Board (NLRB) explained that workers at a unionized workplace do not have to be full union members, but can instead opt to forego membership and pay only a smaller fee to offset the union representation and substantial benefits they receive, regardless of their membership status:

The NLRA [National Labor Relations Act] allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired.

Even under a security agreement, employees who object to full union membership may continue as 'core' members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right. [National Labor Relations Board, accessed 1/12/16]

The Atlantic: Agency Fees “To Cover The Cost Of Bargaining” Paid By Non-Union Members Like Friedrichs “Are Different From Dues That Union Members Pay, Which Can Be Used ... For Political Expenses.” In a January 8 article, The Atlantic noted that the plaintiff in the case “is not a member of the union ... like many other public employees,” and explained the difference between agency fees, which “cover the costs of collective bargaining and other negotiations” that “even non-union teachers like Friedrichs benefit from” and “dues that union members pay, which can be used by the unions for political expenses”:

The case concerns a teacher in California, Rebecca Friedrichs, who has sued the California Teachers Association, arguing that being required to pay a fee to the union violates her First Amendment rights. Friedrichs is not a member of the union, but, like many other public employees, is required to pay a so-called agency fee to cover the costs of collective bargaining and other negotiations with the school district--union activities that all teachers, even non-union teachers like Friedrichs, benefit from in the form of higher salaries and better benefits. To be clear, these agency fees are different from dues that union members pay, which can be used by the unions for political expenses such as lobbying and electoral work. The law allows public-sector employees to opt out of dues and just pay an agency fee to cover the cost of bargaining--an accommodation intended to protect people's First Amendment rights. Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee. [The Atlantic, 1/8/16]

The Agency Fee Rule Was Established By The Supreme Court In 1977. The Atlantic's January 8 article also explained how the Supreme Court created the distinction between agency fees and union dues in a 1977 case:

The distinction between agency fees and union dues was set in a 1977 Supreme Court case, Abood v. Detroit Board of Education, in which Detroit teachers made almost exactly the same argument that Friedrichs is making today. Then, though, there was no distinction between agency fees and union dues. In its decision in Abood, the Burger court struck a balance on the relationship between public employees and labor unions, said Charlotte Garden, a professor at Seattle University School of Law. Abood allowed public-sector unions to charge for the cost of representation, but not the costs of political activities, creating the distinction between agency fees and member dues.

Before Abood, certain jobs required union membership as a condition of employment, a practice that predates the National Labor Relations Act of 1935. [The Atlantic, 1/8/16]