If last week’s oral arguments are any indication, the Supreme Court’s upcoming ruling in Friedrichs v. California Teachers Association will likely declare fair-share union fee agreements a violation of public sector employees’ First Amendment rights.
Such a ruling, explained Fordham Law Professor James Brudney, would require as a constitutional matter that public employees represented by a union may reap the benefits of collective bargaining and grievance processing without paying to make these benefits possible. A ruling in favor of Friedrichs and other union opponents would also implicate the free speech rights of the overwhelming majority of California teachers who are dues-paying members, the professor noted, calling the Court’s potential First Amendment rationale “troubling.”
“Our federal and state statutes regulating labor relations are premised on a commitment to exclusive representation as a means of promoting stable labor-management relations and furthering labor peace,” Brudney said. “A corollary of this exclusive representation is a union’s duty of fair representation: Unions are required to provide the same bargaining-related benefits to all represented employees, even those who are not dues-paying union members.
“For over half a century, the Court in numerous decisions has established a constitutional accommodation between the interests of unions and their members on the one hand and dissenting bargaining unit employees on the other. Unions have been allowed to collect from all employees they represent the pro-rata costs of negotiating and administering a collective bargaining agreement, but they are prohibited from collecting any money from dissenters for expressive activities not directly germane to those bargaining agreement costs.”
If the Court in Friedrichs decides that public sector employees have a First Amendment right to be free riders, Brudney wonders what will become of the First Amendment rights of union supporters.
“The Court in one of its initial decisions framing this constitutional issue (Int’l Ass’n of Machinists v. Street) recognized that ‘the majority also has a [First Amendment] interest in stating its views without being silenced by the dissenters.’ But if all expenditures for union representation of teachers are protected speech, then the union’s duty to provide free legal and other representational services for non-paying teachers would seem to compel speech from the union and its members.”
The Court heard oral arguments in the Friedrichs case on January 11, just over six months after its ruling in Harris v. Quinn that home-care workers in Illinois are not “full-fledged state employees,” and thus do not have to pay agency fees to unions. According to Brudney, the Court’s decision in Friedrichs could overrule the Court’s landmark 1977 ruling in Abood v. Detroit Board of Education, which established the accommodation of interests for state and local government workers and public sector unions.
From a practical (as opposed to legal) standpoint, increases in the number of people opting out of paying union fees could lead to big changes for public sector unions in the 23 states with laws that allow public employers and unions to negotiate fair share fee provisions. Brudney anticipates that an overruling of Abood may well have a serious impact on unions’ ability to provide effective representation to public employees.
The loss of fair share fees and potential loss of dues-paying members could limit union research on wage and benefit issues, collective bargaining capabilities, and the ability to arbitrate or litigate disputes on behalf of represented workers. If union members see the organization is able to handle fewer cases or provide less protection, more might question whether they should pay dues.
“It is something of a vicious circle,” Brudney said. He added that many unions are anticipating a negative ruling from the Court and have been speaking and meeting with bargaining unit members to emphasize the importance of their membership.
An increase in free riders may also impact millions of people who receive services from these unions. Brudney observed that weakened unions could lead to more public employees living near or below the poverty line, with an increased fear of being fired. The consequences would be unfortunate for local communities, he explained, because teachers, firefighters, and police contribute to the well being of families in the community as well as to its middle class.
These destabilizing developments are something both the California Teachers Association and state of California wish to avoid. Public employers that have a bargaining relationship with unions appreciate that relationship: It produces a more fair and orderly workplace, predictable costs, and a disciplinary framework prohibiting strikes, all of which also contribute to an enhancement in the quality of work performed, Brudney said.
A decision in the Friedrichs case is expected by the end of June.