Public Union Dues Issue Heading Toward Supreme Court

In Friedrichs v. California Teachers Association, ten California schoolteachers and the Christian Educators Association International (“CEAI”) petitioned the Supreme Court to hear an employment case regarding fees paid to public unions by nonmember employees. They argue that public employees who are nonmembers should not have to pay required “agency fees.”1 Agency fees are “expenses related to collective bargaining but not for political or ideological activities.”2 Public unions charge such fees because, by law, they are required to represent nonmembers in collective bargaining negotiations.

A 1977 Supreme Court case, Abood v. Detroit Board of Education (431 U.S. 209), holds that public unions can charge nonmembers agency fees. In Abood, the justices argued that maintaining peaceful labor relations and “preventing nonmembers from ‘free riding’ on the union’s duty to represent all employees in a unit” were legitimate reasons to allow public unions to charge employees agency fees.3 Attorneys for the schoolteachers and CEAI want to have Abood overruled and have “fast-tracked the Friedrichs case through the lower federal courts in a deliberate strategy to get the issue to the Supreme Court. They asked the trial court and U.S. Court of Appeals for the Ninth Circuit to rule against their clients on the basis of the pleadings – no trial, no oral arguments.”4

Terence Pell, president of The Center for Individual Rights, said that the issue is strictly a constitutional one and that lower courts could not make a difference since they would have to simply follow the precedent set in Abood. In recent Supreme Court decisions, Justice Alito alluded to the fact that this First Amendment issue should be reviewed by the high Court. The petitioners in Friedrichs allege that “agency shop” arrangements violate public employees’ freedom of speech by requiring them to pay union dues. While the Court in Abood tried to distinguish between collective bargaining and political or ideological activities, the petitioners in Friedrichs argue that “collective bargaining between the government and public employee unions necessarily involves political speech.”5 Twenty-four states currently have agency shop laws.

The California teachers’ union and California Attorney General Kamal Harris wrote briefs opposing petitioners’ arguments, contending that the petitioners improperly describe actions to increase pay for union workers as political speech. “A nonmember teacher who receives the benefit of additional compensation as a result of the unions’ efforts in collective bargaining must pay a share of the unions’ costs in negotiating those improvements, rather than receiving a free ride.”6 They added that there is no support for the argument that unions utilize nonmembers’ contributions for political or ideological purposes. The teachers and CEAI filed a petition for a writ of certiorari in January and it is still pending before the Supreme Court.

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