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Commentary By Steven Malanga

The Legal Case Unions Fear They Cannot Win

Governance, Governance, Economics Public Unions, Civil Justice, Employment

Can government workers be forced to pay fees to unions? The Supreme Court seems inclined to say no.

It has been a difficult five years for government-employee unions, and the Supreme Court appears poised to strike another blow. During the current term, the justices will hear Friedrichs v. California Teachers Association, a case challenging rules in 23 states—including California, Illinois and New York—that force government workers to pay hefty “agency fees” to unions that they have no interest in joining.

Labor activists call these “fair share fees,” on the theory that nonunion workers, even if they don’t pay full dues, still benefit from collective bargaining—for example, from a wage increase negotiated by union representatives. In a brief filed last week with the Supreme Court, the California Teachers Association argued that such fees are vital “to avoid labor strife, to secure economic stability, to insure the efficiency and continuity of state and local governments.”

Forty years ago, the Supreme Court bought that argument. The court’s 1977 ruling in Abood v. Detroit Board of Education affirmed a Michigan law that required teachers opposed to their union to pay the agency fee anyway. For decades, this precedent has supplied unions with a steady stream of revenue from nonmembers.

Yet labor leaders are increasingly pessimistic about the agency fee’s prospects in court. Last year the California Teachers Association produced a remarkable document for internal consumption titled, “Not if, but when: Living in a world without Fair Share.” Several months later, eight state teacher unions under the aegis of the National Education Association turned out a strategic documenttitled, “Engaging members and leaders in a non-agency world.”

What has them spooked? In recent years the Supreme Court has narrowed the prerogatives that unions enjoyed under Abood. The 2012 ruling in Knox v. SEIU held that a California union had violated the rights of nonmembers when it assessed a special fee to support political campaigns without first asking the nonmembers to opt in.

Equally important, the justices seemed to signal that they would be willing to reconsider Abood entirely. “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech,” Justice Samuel Alito wrote for the majority in Knox. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

Now, in Friedrichs, the court will hear a case that turns on precisely that issue. The lawsuit was brought by Rebecca Friedrichs and nine other California educators against the California Teachers Association (CTA). It argues that forcing teachers who do not belong to the union to pay agency fees averaging $650 annually violates their First Amendment rights, and that the union’s collective bargaining is itself a political act that they should not have to support.

If the Supreme Court in the end does overturn Abood, the practical effect could be the equivalent of passing a national right-to-work law for government employees.

Although labor leaders have vigorously contested these cases, they have also begun to prepare for a potential loss by getting back to the basic task of recruiting members. The American Federation of State, County and Municipal Employees and the Service Employees International Union have organized aggressive campaigns to convert nonmembers who pay the agency fee to full membership before the Supreme Court rules on Friedrichs. Afscme’s goal, according to press reports, is to persuade 30% of its estimated 130,000 fee payers to join (total membership is 1.3 million). Locals are running “recommitment” drives in which current members sign cards pledging continued fealty.

The National Education Association has about 101,000 fee payers (of a total membership of three million), according to the blog Education Intelligence Agency. The NEA is giving out grants to encourage local affiliates to rebuild their ranks. One target: teachers at charter schools, whose numbers are rapidly growing.

But losing agency fees would be quite a hit. Wisconsin, whose state legislature eliminated them in 2011, offers a test case. Between 2009 and 2014, membership in government unions there plummeted from a peak of 207,662, representing more than half the state’s public workers, to 123,239, or less than one-third, according to data at Unionstats.com, which is maintained by two professors at Trinity University and Georgia State University.

In other words, thousands of Wisconsin government employees finally given the choice between staying in a union and leaving with hundreds of extra dollars their pockets picked the latter option. “Plenty of represented workers aren’t enthusiastic about their unions,” a writer at Labor Notes observed, often because their unions “focus on advocating for causes far removed from members’ day-to-day work.”

What kinds of causes? The CTA has lobbied for a single-payer health-care system. The NEA spent $45 million on political activities and lobbying in 2013, and has doled out tens of thousands to groups that have nothing to do with education, like MediaMatters, the Daily Kos and Marylanders for Marriage Equality. No wonder a recent poll by Harvard’s Program on Education Policy and Governance found that only 38% of teachers support compulsory agency fees, compared with 50% who oppose them.

State laws compelling such fees have led unions to take government workers for granted. Now even many union leaders seem to think that the era of “fair share” fees is coming to an end.

This piece originally appeared in The Wall Street Journal.

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Steven Malanga is City Journal’s senior editor and a Manhattan Institute senior fellow. 

This piece originally appeared in The Wall Street Journal