Friedrichs v. California Teachers’ Association[1], a public labor union case, is pending before the Supreme Court this term, with oral arguments scheduled for January 11. Many are apprehensive it will harm — and potentially dissolve — the strong tradition of public employee unions in the United States.[2]  Named plaintiff Rebecca Friedrichs is a teacher in Orange County and she, along with the Christian Educators Association[3] and nine fellow public school teachers, filed a lawsuit arguing against paying agency, or fair share, fees to the Association of which she is not a member.[4]

State governments often sign contracts with unions to act as the single, official bargaining agent for all employees in a given sector regardless of their membership status.[5]  So while California’s public school teachers cannot be forced to join the Association, they are required to pay nonmember agency fees, which equal about two-thirds the cost of the union membership dues.[6]  These fees cover the costs of the union’s work in collective bargaining, contract administration, and grievance adjustment purposes that benefit all teachers — members and nonmembers alike.[7]

The Supreme Court unanimously laid out this fee structure as a compromise between nonmembers and public sector unions when it decided Abood v. Detroit Board of Education[8] in 1977; a case that looks quite a bit like Friedrichs.[9]  The concept behind the compromise is simple economics: all public employees benefit from the union’s negotiations, therefore, all of them should pay — at least partially — for the benefits they receive, especially tangible ones like better working conditions and higher wages.

The Supreme Court in Abood acted to curb a potential free-rider problem to keep labor unions afloat. The holding also promoted “labor peace” — the idea that the union should act as one singular body and voice on behalf of the vast number of people it represents to allow local and state governments to negotiate with unions more effectively.[10]

While Abood is still good law, the recent labor union decision in Harris v. Quinn looms over Friedrichs like a dark cloud. In 2014, the Supreme Court decided Harris v. Quinn — a labor union case brought by personal home healthcare workers in Illinois who did not want to pay agency fees to the union that represented them in bargaining.[11]  In a 5-4 split, the majority held that the home healthcare workers who did not want to pay the fees to their private union representative, the Service Employees International Union, did not have to because such a requirement violated their First Amendment rights.[12]  Harris v. Quinn is far more limited in its scope than Friedrichs because home healthcare workers are classified as “partial-public employees” — a special categorization for workers funded by a federal-state program coined by the Court’s majority to distinguish the group from being classified as purely public employees.[13]  The Court reasoned that the state did not need “labor peace” — as it might for a school — because the home healthcare workers were not solely state employees compared to, for example, teachers or government officials.[14]  Although the Court skirted overturning Abood by creating this special categorization in Harris, it is viewed as somewhat of a potential stepping-stone toward dissolving unions in the public sector. Thus, labor unions are worried that the Court will go further in Friedrichs and overturn Abood.

Like the home healthcare workers in Harris, the teachers in Friedrichs argue that the nonmember fees they are required to pay violate their First Amendment rights because they are being forced to financially support causes they do not believe in.[15]   The primary purpose of the union is to engage in collective bargaining; however, one-third of the members’ dues — and no nonmembers’ dues — fund the union’s lobbying arm, which tends to support Democratic candidates for elected office.[16]  The plaintiffs in Friedrichs claim that even though their fees do not go into funding the union’s lobbying arm, the union’s collective bargaining activities are in themselves political because they push an “explicit agenda of bigger government and higher taxes” that many teachers do not support.[17]  The teachers and Christian-backed organization in Friedrichs are hoping their First Amendment claim of “compelled political speech inherent in mandatory union membership of any kind”[18] will be as strong as it was for the home healthcare workers in Harris.

The outcome of Friedrichs could not only affect how unions benefit workers, but how unions, at least in the past, benefit communities as a whole.[19]  Studies have shown that one of the ways to help alleviate poverty and empower low-income workers is through collective action brought about by unions.[20]  Without union representation, it is much harder for workers to argue individually for more pay as well as for benefits that would improve their workplace. Unions that represent public school teachers can advocate for resources like smaller class sizes, free school breakfast and lunches, and access to computers and advanced technologies like SmartBoards, to create stronger learning environments that can impact student achievement.[21]

If the Court goes the most radical route — overturning Abood — all states’ public sector employment will be right-to-work, meaning that union dues for nonmembers are no longer compulsory.[22]  If you knew you could piggyback off of a group or club, one that might even provide you with job security and paycheck bump, without having to pay a cent, why wouldn’t you? The probability that a tragedy of the commons scenario would play out is likely. Union membership would decline, the lack of funding would diminish union strength in negotiations — without enough money they would not be able to pay for, say, critical legal advice — eventually leading to a dissolution of unions altogether. And although not all states would be prohibited from engaging in collective bargaining, it would become quite difficult to reach agreements when workers only want to be part of groups that they can fully identify with and support. Without some form of collective bargaining that most employees can agree with, governors and lawmakers within each state could unilaterally make decisions about health benefits, wages, lay-offs, and even pension reforms — something that they cannot do when they have collective bargaining contracts with the union or another entity.[23] While this outcome is dramatized, some form of it is not outside of the realm of possibility, seeing as this is currently a reality in states across the South notably Mississippi and North Carolina.[24]

Thus, the big question posed by Friedrichs is this: where exactly is the Court going to draw the line between the power of collective action and the sanctity of individual rights?

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[1] Friedrichs v. California Teachers Ass’n, 135 S.Ct. 2933, cert. granted (June 30, 2015).

[2] See Laura Moser, Why an Upcoming Supreme Court Decision Has Teachers Unions Feeling Very, Very Nervous, Slate (July 8, 2015, 3:04 PM), http://www.slate.com/blogs/schooled/2015/07/08/friedrichs_v_california_teachers_association_how_a_supreme_court_case_could.html.

[3] The Christian Educators Association is a non-profit group that specifically serves Christians working in public schools.

[4] See id.

[5] See Garrett Epps, The End of Public-Employee Unions?, The Atlantic (Feb. 20, 2015), http://www.theatlantic.com/politics/archive/2015/02/the-end-of-public-employee-unions/385690.

[6] See id. (explaining that nonmember fees cost about $850 annually).

[7] See id.

[8] Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The plaintiffs were public school teachers in Detroit, Michigan who opposed the union’s ideological views, and therefore, did not want to pay any union dues on the grounds that it was unconstitutional. The Supreme Court held that the Constitution does not prohibit agency fees as long as those funds are used only toward collective bargaining and not the union’s political dealings.

[9] See id.

[10] See id.

[11] Harris v. Quinn, 134 S. Ct. 2618 (2014).

[12] Id. at 2644; see also Emily Bazelon, Unions aren’t dead yet, but Alito is gunning for them, Slate (June 30, 2014, 2:43 PM), http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/supreme_court_2014_unions_live_another_day_in_harris_v_quinn.html.

[13] See Steven Greenhouse, Supreme Court Ruling on Union Fees Is a Limited Blow to Labor, N.Y. Times (June 30, 2014), http://www.nytimes.com/2014/07/01/business/supreme-court-ruling-on-public-workers-and-union-fees.html.

[14] Epps, supra note 5.

[15] Friedrichs v. CTA: Why Teachers?, The Center for Individual Rights, https://www.cir-usa.org/cases/friedrichs-v-california-teachers-association-et-al/why-teachers. (last visited Nov. 6, 2015).

[16] Bazelon, supra note 8.

[17] Supra note 15.

[18] Id.

[19] See Colin Gordon, Union Decline and Rising Inequality in Two Charts, Economic Policy Institute (June 5, 2012, 1:43 PM), http://www.epi.org/blog/union-decline-rising-inequality-charts.

[20] See id.

[21] See Bazelon, supra note 8.

[22] See Jeffrey Keefe, Eliminating Fair Share Fees and Making Public Employment ”Right-to-Work” Would Increase the Pay Penalty for Working in Local and State Government, Economic Policy Institute (Oct. 13, 2015), http://www.epi.org/publication/eliminating-fair-share-fees-and-making-public-employment-right-to-work-would-increase-the-pay-penalty-for-working-in-state-and-local-government. http://www.epi.org/files/pdf/93216.pdf

[23] See generally Emily Wagster Pettus and Erik Schelzig, Union Bargaining a Dream for Many Government Workers, The Associated Press (Feb. 27, 2011, 3:23 PM), http://www.washingtonpost.com/wp-dyn/content/article/2011/02/27/AR2011022700910.html.

[24] Id.