The End Of Unions? Upcoming Supreme Court Case Could Overturn Power To Collect Fees

When Marc Williams greets his high school students every morning, the last thing he wants to worry about is his upcoming teacher evaluation. Or what new regulations could be in store for next year, or how he will negotiate with the school’s administration should any issues arise in his classroom. He’s there to teach kids, not worry about his job.

It’s his union that takes on the brunt of the big issues affecting his Indianapolis school, and lobbies on behalf of his colleagues on their working conditions, he said. “All those different things that can get in the way of what we’re really there for, which is our students, to make sure they can be world-class citizens and lifelong learners. It's hard to do that when you're concerned about your working conditions,” Williams said.

But a Supreme Court case beginning Jan. 11 has union members like Williams wondering if a ruling could sound a death knell on labor organizations that have grown accustomed to heightened limitations and declining memberships in recent years. Friedrichs v. California Teachers Association will determine whether mandatory union dues violate workers' freedom of speech, and experts say a ruling could dictate the future of unions' ability to collect fees from their memberships in what plaintiffs hope will be a win for individual rights and defendants fear is an attack on collective bargaining.

A decision swaying against unions, experts say, could effectively implement a national right-to-work policy that secures the right of workers to choose not to pay agency fees and therefore guts unions’ power to finance themselves. Union leaders have warned that the plaintiffs' First Amendment argument at the root of the case is being dishonestly presented, framing the issue as one of individual rights and freedom of speech rather than a direct assault on unions and the fees they collect.

“Let's just talk about what's really going on here,” said Michael Mulgrew, president of the New York-based United Teachers Federation. “The membership is becoming more aware of it now ... they've all said, ‘We know what this is about. It's a way to attack unions.’ ”

The plaintiffs seek to overturn a 1977 Supreme Court ruling that upheld a Michigan law requiring public workers represented by unions to pay “agency fees” or “fair-share fees” — which go toward the unions’ chargeable costs of collective bargaining and representation, but not the costs of their political activity or lobbying. In effect, Abood v. Detroit Board of Education protected against “free riding,” a reality where workers may reap the benefits of union representation while forgoing the payments needed to keep the organizations afloat.

The lawsuit has been brought forward by Rebecca Friedrichs and nine other California schoolteachers, who have argued that unions are political bodies by nature and their agency fees are funding causes they disagree with. The plaintiffs, and other collective bargaining critics, have argued that if the country’s unions are truly representative of their membership, workers will still opt to pay the fees.

“We’re being asked to fund collective bargaining that’s highly political using taxpayer money and I don’t have a choice,” Friedrichs told the Washington Post in an August interview. “The official you put into office is on one side [of the table] and the union is on the other side and you’re bargaining for taxpayer money, only the taxpayer doesn’t get invited to the table. That’s political, in my opinion.”

But some labor experts say the ruling’s effects could go far beyond political speech ramifications: If agency fees are optional when union representation is guaranteed, then what incentive exists for employees to fork over hefty union dues? Jeffrey Keefe, a researcher at the Economic Policy Institute and former professor at Rutgers University in New Jersey, said it’s not surprising to see a great deal of free riding in right-to-work states. Free riding eventually diminishes the effectiveness of the states’ unions and leaves them with few resources to bargain for employees’ benefits or wages, Keefe said. Roughly 80 percent of the country’s public sector union members currently work in states with mandatory agency fees, with just 20 percent working in the U.S.’s 25 right-to-work states.

“This is transparently obvious. It’s something you give on a sophomore economics exam,” Keefe said. “It’s rational for individuals when they’re being provided a public good to — if they cannot be excluded — not pay. Just because we’re all selfish and we choose to gain benefits without paying for it.”

It’s a debate the Supreme Court justices have already opined on. A similar case, Harris v. Quinn, was brought to the court in 2014 and the majority ruled against overturning the agency fee requirement, but excused certain workers from having to pay. In his opinion, Justice Samuel Alito suggested that if unions are serving their memberships, employees will volunteer the fees, while Justice Elena Kagan was adamant that union membership would drop.

“Does the majority think that public employees are immune from basic principles of economics?” she wrote in her dissent.

Some have pointed to Wisconsin’s labor trends over the past five years as a case study of Kagan’s logic. Under Gov. Scott Walker, Wisconsin’s legislature eliminated mandatory agency fees in 2011 and data has revealed a huge membership drop to 8 percent from 22 percent three decades ago, according to Unionstats.com. Michigan, too, enacted a right-to-work policy in 2013 and has since seen a 7 percent decline in membership and doubling of free riding. On the whole, the U.S. has seen a steady drop in private and public sector union membership since the 1980s, with rates in 2014 dropping to 11.1 percent from 11.3 percent the year before.

Keefe said in the short term he predicts a fairly minor impact of a plaintiff-favored ruling in Friedrichs, with membership rates dropping only slightly compared with previous years' rates. But over time, a widespread, long-term union membership drain will leave the public sector a less attractive one for people to work in, ensuring that governments will have difficulty recruiting a high-functioning workforce, he said.

Furthermore, he added, the case reeks of unspoken political motivations that spell out an attack on the government institution of public education. If teachers’ unions are defanged and public schools suffer as a result of employees’ collective bargaining failures, critics could bolster their arguments for defunding public education and parents could see privatized education as a more appealing option.

“Weakening the unions, say on the issue of public schools, would greatly weaken a voice arguing for strengthening public schools and public education,” he said. “This is what I would call the anti-establishment Republican wing that really has a problem with government.”

It’s not the first time the impetus behind the plaintiffs has been questioned. The Center for Individual Rights, a nonpartisan but conservative-leaning nonprofit law group, is representing the 10 plaintiffs and has been criticized in the months leading up to the case for its ties to wealthy, corporate-class Republicans. Among the center’s funders are billionaire brothers Charles and David Koch, who have long supported groups with anti-union sentiments such as Americans for Prosperity, according to the Center for Media and Democracy.

But reading too deeply into the criticisms of the plaintiffs’ legal representation could be a mistake, said Patrick Wright, vice president of legal affairs at the Michigan-based free-market Mackinac Center for Public Policy. Union advocates are desperate to paint the plaintiffs as villains to salvage their own reputations, he said.

Wright said the argument that unions will flounder without agency fees is false, and the proof lies in the 70 years that right-to-work laws have been enacted around the country without the dissolution of the states’ unions. There are many reasons why union members in right-to-work states still choose to pay union dues, ranging from political beliefs, to solidarity with their colleagues, to the desire to maintain a harmonious workplace.

“There's all kinds of reasons and rationales why one might not just say, ‘Hey, look nobody has to pay this, therefore I’m not going to,’ he said. “And we’re talking unions that have gotten tens — if not hundreds — of millions of dollars that they shouldn’t have had. Now, if you're about to lose that amount of money that might be violative of the constitution, you'd probably be running around doing everything you can to try and make the plaintiff look bad.”

Experts from both sides seem to agree, however, that there is a silver lining to the case being heard, whichever way the Supreme Court rules: Unions are increasingly being pushed to prove their worth in an environment where cynics have been relentless in their criticism. Increased accountability for union leaders as a result of a ruling in favor of the Friedrichs plaintiffs may work in favor of workers, Wright said.

“Now, in a certain way, you have to do your best to satisfy each and every member,” he said. “Each and every member has an individual determination that they can make whether or not they agree with your politics, whether or not they agree with your bargaining strategy, whether or not they’re being well-served by their union."