Is the practice of forcing public sector employees to pay agency fees to unions on the way out? Based on my observation of the oral arguments in the Supreme Court on Monday in Friedrichs v. California Teachers Association, I think the answer may be yes.
This case involves a challenge to the practice of the forced payment of fees by Teachers to a public sector union in California. This practice is commonly known as an “agency shop arrangement.” For those employees who do not wish to be full members of the union due to factors such as the union’s political and ideological positions, they may, in some cases, still be forced to financially support the union.
A union under current precedent can’t charge non-members for certain activities such as political activities, however, other activities, such as those associated with collective bargaining have been deemed chargeable to these employees.
Employees who don’t wish to become full members of the union are supposed to only pay for the core purposes of a union, such as representing employees to their employer (in this case the government) regarding the terms and conditions of employment. These employees pay a lesser amount in “agency fees” rather than the full dues amount.
Since all bargaining with a public sector employer (bargaining with you and me as the taxpayers) is essentially a political act attempting to achieve a desired result from the government, it stands to reason that no public sector employee should be forced to pay any agency fees at all.
The net outcome if the plaintiffs are successful is that the public sector at the state and local level will essentially operate as a right-to work environment, much like it does in the federal sector.
Is bargaining with the government always a political act that no employee should be required to support? Over the last several years the Court has sent signals that seem to indicate that the answer to this question is yes. The questions from the Court in the arguments in Friedrichs also indicate that many members of the Court are ready to answer this question with a holding that frees public sector employees from agency fees.
The age-old argument from unions that absent the ability to force the payment of fees to them a “free rider” problem will arise is countered by an amicus brief from the Mackinac Center for Public Policy. The Center, using data from the U.S. Department of Labor’s Bureau of Labor Statistics, showed in their brief that in those states where there is a right-to-work law that the vast majority of employees covered by collective bargaining agreements are members of the union that represents them. This is hardly the “free-rider” problem that unions claim. What is likely rather at issue for them is that they must work hard to provide a service that employees actually want because the employees cannot be coerced as easily to pay for that service. As such, in right-to-work states when there is a collective bargaining agreement it is likely that the union actually has a stronger base of support than they would in other states because those who are members of the union are those who actually want to be. And, this is the way things should work.
The State of California in arguing alongside the union gave a basic premise that California needs a single bargaining partner and that having a union somehow makes it easier for California to conduct its business. I don’t believe the Court was convinced that (1.) this is really necessary; and (2.) even if it is that the use of forced agency fees is the only way for California to maintain this relationship. After all, as was pointed out in the arguments, unions in the federal sector seem to operate just fine even in the absence of forced fees.
The union’s counsel argued that agency fees prevent strikes and that in the absence of forced fees that strikes have occurred in places like New York. He argued that agency fees put everyone on the same team. The Chief Justice took issue with this questioning how a mandatory fee places everyone on the same team. He felt that the payment of voluntary fees would be indicia that everyone was on the same team, not the other way around.
Justice Kennedy noted that the “union is making teachers compelled riders on subjects with which they disagree.” Justice Scalia, whom many observers had questions about going into the arguments noted that in public sector bargaining relationships, “every matter bargained for is a matter of public interest.”
Predictions about court decisions are always dangerous, but it seems likely that a majority of the Justices are ready to hold that as a matter of First Amendment law a public sector employer cannot have a collective bargaining agreement that makes union agency fees mandatory.
Nathan Mehrens is President of Americans for Limited Government Foundation.