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Is This the End of Teachers' Unions?

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One of the most important labor cases in a generation goes to oral argument at the United States Supreme Court today.

At issue in Friedrichs v. California Teachers Association is whether the CTA or any other public sector union can charge non-members a fee for representing them in collective bargaining, dismissal hearings, and other aspects of representation required by the state's collective bargaining law.

The court is being asked to overturn a 40-year old precedent set in Abood v. Detroit Board of Education in which the court ruled that unions may charge a fee to all employees, whether or not they are members.  The logic follows two longstanding labor law practices.  The first is that a single union represents all employees.  Unlike the practice in some other countries, workers do not join a union that matches their political ideology, from right of center to communist.  Employers, therefore, are required only to negotiate with a single union rather than an unruly coalition of them. 

Second, as a consequence of a single bargaining agent being chosen, the union is required to represent all workers whether or not they are members.  In labor law this is known as the "duty of fair representation." Unions can't fail to represent non-members.

This requirement leads to what economists call "the free rider problem."  If the union is to represent all employees regardless of whether they are members of the union, then an individual employee has an incentive not to join.  He or she gets the benefits from wage negotiations and work rules regardless of whether they pay for them.

The Economic Policy Institute argues that there is an unbreakable relationship between required union fees, exclusive representation, and the duty of fair representation.

Constitutional law professor Catherine Fisk calls the case a "potentially crippling challenge to teacher unionism" and has argued that democracy requires that employees follow the will of a majority of their fellow workers in their choice of a union.  The plaintiffs in the case disagree. 

California teacher Harlan Elrich, quoted in a New York Times story says, "I get to choose what movie I want to go see," Mr. Elrich said.  "I get to choose what church I want to go to.  I get to choose what gym I want to join."

But this case is about a lot more than Mr. Elrich's gym membership.  Richard Kalenberg writes that defunding public sector unions will diminish our democracy: "More broadly, many progressives see the Friedrichs case as an effort to defund the American left, given the financial support public sector unions provide a variety of liberal causes, from civil rights to raising the minimum wage."

On Sunday, the New York Times editorialized:

States should continue to be free to fashion their own arrangements for handling labor relations.  More than 20 have fair-share fee systems which encompass thousands of negotiated contracts representing millions of teachers, police officers, firefighters and other public workers.  All this could be upset by a ruling for the plaintiffs.

At the least, the court should be extremely wary, as it usually is, of upending long-settled precedent. The Abood ruling has stood, and been repeatedly reaffirmed, for nearly 40 years.  It would be troubling if it was now reversed by a deeply divided vote.

There's been comment that Friedrichs signals the death of public sector unions.  It won't, but it will diminish their financial ability.  Kalenberg cites research that shows that about a third of teachers in states that do not allow agency fees don't join the union, even though it negotiates for them.  (By the way, students in agency fee states have higher achievement levels.)

There's a perverseness about the plaintiff's argument.  They claim to want union representation that matches their beliefs, but what they really want is weak unions.  In a country where public sector unions are about the only organized force that can push back against the corporate interests, which are so well represented on the U.S. Supreme Court, a vote against unions is a vote for corporate control of the public policy, and you can't get much less democratic than that.

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