On Monday, the Supreme Court heard oral arguments challenging the practice of public sector unions requiring nonmember fair share fees. Union organizers around the country have been watching this case nervously for several years as it worked its way up the court system -- and for good reason. Despite its wholesome third-grade teacher plaintiff, Friedrichs is a political power play, one funded by the conservative Center for Individual Rights and backed by big money donors.
The purpose of Friedrichs is to do to public sector unions nationally what right-to-work legislation does on a state-by-state basis. It will almost certainly succeed.
What’s at issue here is the First Amendment concerns raised by fair share, or “agency” fees. In 23 states including California, public sector employees who chose not to join a union are nevertheless required to pay a percentage of union fees dedicated to collective bargaining. The idea is to prevent free riders. Because the union negotiates on behalf of all employees, if nonmembers don’t contribute they’ll end up with all the benefits of a negotiated contract without having to pay the bills.
The alternative, as counsel for the teacher’s union David Frederick argued on Monday, would be a classic collective action problem. In any system that benefits everyone equally, the incentive for individuals is to sit back and collect your goodies for free.
The fair share system is a compromise to solve that collective action problem, one that’s long drawn criticism. Nonunion workers have argued for years that these fees associate them with unions and bargaining positions they don’t necessarily agree with, and they have a reasonable point. Particularly in the case of teachers, contracts often involve hot button issues such as tenure and merit pay, drawing the criticism of many educators who say that the union’s position does not represent them.
If that seems like a potent political issue, you’re right. Which is why the Supreme Court has already addressed it… 39 years ago. In Abood v. Detroit Board of Education, the Court heard this same First Amendment argument. After balancing the state’s interest in having one representative for all employees, as well as the union’s argument that it can legitimately bargain for fair share fees as a condition of employment, the Court created the compromise we have today.