SCOTUS: Public Sector Unions Safe for Now

U.S. Supreme CourtThis week, the U.S. Supreme Court announced that it was deadlocked in the case of Friedrichs v California Teachers Association (representing 325,000 teachers in 1,000 school districts). The 4-4 vote, for now, leaves undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which found itself bound by a prior SCOTUS precedent upholding a system of “agency fees” for non-union teachers in California against constitutional challenge. The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only SCOTUS could revisit that prior ruling, binding on all lower courts. [i] Unions and their members are fully invested in who will become the 9th Justice. 

The case of Friedrichs v California Teachers Association revolves around whether non-members of labor unions in the public sector should pay a fee to help to cover the costs of representation.  The deeper issue in this case is whether the political Right can further weaken labor unions by draining them of funds.

In many state, county and municipal governmental agencies around the United States, workers have a right to form and join labor unions. In addition, there is a provision called “agency fee” which was established – and declared legal by the U.S. Supreme Court in 1977 – as a way of ensuring that the costs associated with representing members were met by all those who benefitted from such representation. What this meant was this:

  • A union, by law, once voted in must represent all the workers in that particular setting irrespective of whether those workers are union members. In other words, the union becomes the official representative of the workers.
  • An individual does not need to join the union if they choose not to. They can decide that they do not wish to be associated with the union.
  • Nevertheless, agency fee provisions mandate that all the workers will pay a certain amount that helps to cover the cost of representation since all of the workers benefit through what the union negotiates. An individual worker, for instance, cannot decline a pay raise just because the union negotiated it and they object to unions. At the same time, a non-union worker, if they are treated unjustly, must be represented by the union and the cost of that representation comes out of the treasury of the union.

The political Right wishes to destroy agency fees. They wish to do this because they know that given that the union MUST represent all workers irrespective of union membership, if there are no agency fees paid by non-union workers, it means that the union must cover the cost through its own treasury. That will bankrupt many labor unions as well as limit their overall activities.

This is really a matter of democracy.”

This case should never have appeared before the Supreme Court. The petitioners are arguing that demanding agency fee somehow infringes on free speech. Nothing could be further from the truth.

Think about it this way. Imagine that you lived in a city where paying taxes was voluntary. You could pay taxes if you wanted to, but you need not. Nevertheless, irrespective of whether you paid taxes you could access water, sewer, police and fire departments, and public education.

Here is my question: Are you aware of any city that works that way? Are you aware of any city that can work that way?

The aim of the political Right is to destroy the ability of workers to organize. As such they are playing upon greed. We need to respond that this is really a matter of democracy. Do workers have the right to choose their own representatives? Further, if unions are to represent everyone, is there a “free lunch” for those who choose not to pay?

[i] Lyle Denniston, SCOTUSblog, March 29, 2016

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