Labor unions plan to argue before the Supreme Court Monday that their legal obligation to represent all employees in a workplace means they should be compensated by all those workers, even the ones who aren’t union members.
What they do not want is to be released from that legal obligation. They would much rather have those non-members continue to pay them.
“Would we support eliminating the duty of fair representation? No,” Laura Duran, an attorney for the California Teachers Association, told the Washington Examiner Thursday. “The duty of fair representation makes sense. It is an important part of this inclusive representation system.”
The Supreme Court likely will spend a lot of time examining the implications of that system when it hears oral arguments in Friedrichs v. California Teachers Association. The case is about whether a 1977 Supreme Court precedent, Abood v. Detroit Board of Education, should be overturned.
The Abood precedent says that public-sector employers, who are workers at federal, state and local government agencies, can sign contracts with unions that force all of their non-union workers to pay a “fair share” fee. In theory, the fees compensate the union for its collective bargaining expenses on behalf of those non-members.
California does that and the plaintiffs, a group of teachers who have opted not to join union, argue that the requirement violates their First Amendment rights because the fees can be used to fund speech they don’t agree with.
Throwing out Abood would have a major financial impact on public-sector labor organizations, cutting off a key source of revenue. Public-sector unions represent nearly 7 million people, about half of all labor members nationally.
The question of exclusive representation is not at issue in Friedrichs since the case involves public-sector unions, which are governed by state laws, not federal ones.
“The states are already allowed to let unions represent only their members. California hasn’t done that in part because the unions didn’t want it. But they could lobby for this change. So the Supreme Court doesn’t have to rule on this one way or the other,” said Terry Pell, president of the nonprofit Center for Individual Rights, which is representing the plaintiffs.
During a conference call with reporters Thursday, teachers union representatives returned repeatedly to the argument that mandatory representation meant they were owed the fees.
“It is a significant free rider problem,” Duran said. “If somebody thinks they can get something for free, even if they support the union … Some people are going to say, ‘Well, I’m not going to pay.'”
But the legal obligation is not such a burden that the union would rather be rid of it. Rather, the fees are important part of labor economics. Union officials say they would not have enough money to be effective if they could not force the funds from reluctant non-members.
“It gives unions a stronger collective bargaining position to advocate for everybody, members and non-members,” said Lily Garcia, president of the 3 million-member National Education Association, of which the California union is a member.
Duran noted that mandatory representation was supported by business groups when the federal National Labor Relations Act was adopted under President Franklin D. Roosevelt in 1935. Businesses found it more convenient because it allowed them to deal exclusively with one union rather than multiple ones.
Pell argues that getting rid of fair share fees would benefit workers. Unions wouldn’t be able to take the workers’ support for granted anymore.
“A win [for us] in Friedrichs will mean that unions will have to compete for dues, just like any other professional organization. We feel this will be good for unions and, ultimately, the members they serve,” he said.
