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United States Supreme Court to Consider Striking Down “Fair Share” Fees Paid by Non-Union Public Employees

By Garrett C. Parks and Charles O. Thompson

In a development many view as a sign of an anti-union majority, the United States Supreme Court has agreed to hear a case that could reverse four-decades of pro-union precedent and strike another, potentially significant blow to organized labor in the courts.  Next term (October 2015), the Court will decide Friedrichs v. California Teachers Association, which challenges a California requirement that public school teachers pay union fees, even if the teachers do not want to participate in the union or disagree with the union’s lobbying position on issues.  A victory for teachers challenging the fees in Friedrichs would result in banning so-called “fair share” fees unions impose on non-union public employees or, at minimum, require that non-union employees affirmatively opt-in (as opposed to having to affirmatively opt-out) to being charged the fees.

Fees May Violate the First Amendment

At issue in Friedrichs is the validity of union “fair share” fees, which are dues that public sector unions are allowed to collect from non-union employees who are part of a union workforce.  The fees are supposed to be used for union “operations,” such as efforts relating to collective bargaining, contract administration, and grievance procedures.  Union leaders and proponents of the fees argue that, because all workers in a unionized workplace share in the benefits of the union’s efforts, even non-union workers should pay at least some dues to avoid “free riding,” that is, getting benefits without financial participation.  In addition to helping fund union operations, unions also depend on these fees as a substantial source of revenue to support their lobbying and other legislative efforts.

The Friedrichs teachers and other critics of this union practice—most notably Justice Samuel Alito, who authored the majority opinion in the 2014 case Harris v. Quinn, which held certain Illinois home healthcare workers could not be forced to pay these fees because there were not “full-fledged public employees”—contend that forcing non-members of the union to pay for union lobbying efforts that they do not support violates the First Amendment. Indeed, as Justice Alito wrote in Harris: “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Speculation that the Court would address the issue raised in Friedrichs has been widespread since the Harris decision.  In addition to rejecting application of fees to individuals who were not clearly public employees, the Court’s strong criticism of the 1977 foundational case supporting these fees, Abood v. Detroit Board of Education, signaled to anti-union groups that the time is ripe to challenge the future of this practice.

A Blow to Unions in the Public Sector

More than a third of government workers belong to unions.  In post-recession America, however, public sector unions have felt significant pressures as state governments have tightened budgets, re-tooled, reduced or eliminated benefits and pension programs, and stripped unions of collective bargaining rights.  If the Court acts as many predict and overturns Abood next term, the already-weakened public sector unions may face greater strategic challenges to both recruit talented workers to government and to generate new revenue to fund its lobbying efforts at state and local government.  The union position in Friedrichs is that they need the financial support for the benefit of our children.

On the other hand, the expected result would be a win for advocates of the First Amendment and individual employee rights, as it would restore the rights of non-union public employees to make their own decisions relating to supporting union lobbying and political positions and decisions.