Challenge to 'Fair Share' Union Fees Unfair and Unworkable
By Catherine Fisk
The U.S. Supreme Court starts its term today, and in the coming months, it will hear Friedrichs v. California Teachers Association, which is being viewed as a potentially crippling challenge to teacher unionism.
The Court is going to decide whether to overrule Abood v. Detroit Board of Education, a 1977 decision which held that school districts and teachers' unions may agree to require teachers to pay the union their fair share of the cost of union representation services. The Friedrichs plaintiffs ask the Court to hold that the First Amendment prohibits fair share fees because the requirement to pay a union for services constitutes compelled speech of teachers who are represented by a union but are not union members. (Rebecca Friedrichs, an Orange County teacher, has written the union is using her fees to take positions on vouchers and teacher pay that she disagrees with thus limiting her free speech rights.)
If the Court overrules Abood, it will create significant administrative difficulties for teachers, principals, and school districts without enhancing the free speech rights of union members or union-represented teachers who are not union members.
Friedrichs is Latest Challenge to 'Fair Share'
Friedrichs is the latest in a series of recent cases, beginning with the Court's 2012 opinion in Knox v. Service Employees International Union, Local 1000, addressing First Amendment challenges to fair share fees in public-sector labor laws and labor contracts. In Harris v. Quinn (2014), the Court declined to overrule Abood, and instead simply found it was unnecessary for unionized home care workers to pay their fair share of the cost of negotiating and enforcing a collective agreement because, under Illinois law, the union had few issues to negotiate and no role in enforcing the contract for nonmembers.
But teachers' unions are in a very different position than home care workers' unions. As Justice Antonin Scalia (joined by Justice Anthony Kennedy) noted in Lehnert v. Ferris Faculty Association (1991) in discussing teacher unions, fair share fees are necessary because public sector labor law imposes significant responsibilities on unions to represent all employees, members and non-members alike. If non-members didn't have to pay fees, they would become what economists call "free riders," letting union members pay for the services the union provides to nonmembers. As Justice Scalia explained in Lehnert, "where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost."
As I have argued elsewhere, to require a union to spend its members' dues representing nonmembers impinges the First Amendment rights of the union and its members to the same extent that requiring nonmembers to pay their fair share of the union's costs impinges on the nonmembers' rights. The union has a legal duty to represent all employees fairly, and it can charge dissenting nonmembers only for the costs of discharging that duty.
Abood allows unions to collect fees from dissenters only for their fair share of the services that the law requires the union to provide to all, and not for political activity not germane to its role as bargaining agent. For example, a union may use member dues to lobby against school vouchers in the legislature, but it cannot use nonmembers' fees. But nonmembers can be required to pay their share of the union's cost of negotiating and enforcing a collective bargaining agreement. And if the union cannot charge all represented employees for the cost of contract negotiation and administration services it must provide, then union members will be forced to subsidize free legal services for their nonpaying co-workers. Charging for services does not violate the First Amendment rights of nonmembers any more than does compelled contributions to pension and health insurance companies or paying one's taxes.
Considering 'Member's Only' Unions
Some have suggested that the solution to the free rider problem is members-only bargaining in which the union represents only its members in contract negotiation and contract administration. The history of California public sector labor law suggests members-only unionism is not an ideal system.
Until California enacted the Educational Employment Relations Act (EERA) in 1976, we had a system of members-only representation for public school teachers under the Winton Act. The Winton Act did not allow districts to recognize an exclusive bargaining representative chosen by the majority. Instead, employee councils consisting of representatives from the gamut of employee organizations were authorized to meet with employers. These councils were ostensibly to "save time" for the school board, allowing them to hear all opinions at once. The council included representatives from certificated employees only in the form of organization representatives or even individuals. The Act permitted the majority employee organization in the district to articulate the official position of the teachers, but provided a forum for other minority organization representatives and individuals to express points of view.
The suggestions gleaned from these council meetings were handled by the school board. The school board had the legal right under the Winton Act to make the final decision on all matters. The Act recommended that school boards incorporate agreed-upon items in to "written resolutions, regulations, or policies," but these directives were implemented in various ways across the state, and council procedures differed from one district to another.
This proportional representation continued until the implementation of the EERA in 1976, even though every other state had rejected proportional representation by the early 70's. California, like other states, found it was expensive and cumbersome. It did not provide an organized system for shared decision making between teachers and school administrators. It generated rather than resolved conflict among different groups of teachers. It was an obstacle to uniform policies across school districts.
Majority rule is both efficient and fair as a system of governance, which is why it is the rule in every democracy.
Catherine Fisk is the Chancellor's Professor of Law at the University of California, Irvine, School of Law.
In A Related Lawsuit
Last Thursday a federal court judge in Los Angeles dismissed another challenge to teacher unions' ability to finance their activities. Bain v. CTA has been bankrolled by Students First, the same organization that brought the Vergara case challenging aspects of seniority and tenure. That case is on appeal. In the Bain case, teachers argued that they should be able to belong to a union without their dues being used to support political causes they disagreed with.