By: Abigail Bar-Lev, FellowPosted on September 30, 2015 Issues: Workplace Justice

The Supreme Court will hear Friedrichs v. California Teachers Association this Term, deciding whether to erect new barriers to make it more difficult for working people to band together to make their voices heard on the job. Friedrichs presents the issue of whether the Constitution permits public employee unions to collect fair share fees from non-union workers who share in the benefits won through union representation. This issue is critical to the health of public sector unions.

There’s long-standing precedent that these kinds of fair share fees are constitutional. In a case decided in 1977—Abood v. Detroit Board of Education—the Court held that public teachers unions could require “fair share fees” from everyone the union represents. Because a union is charged with representing all employees—even those who opt not to join the union—the Court held that unions could require the non-members to pay a fee to the union to contribute to the costs to the union in securing the benefits of representation, i.e. a “fair share” fee. These fees do not go to any political work undertaken by the union, but do help to cover the costs that the union incurs for bargaining on the employees’ behalf.

Last Year’s Harris v. Quinn Laid the Groundwork for An Attack on Public Sector Unions

In 2014, the Court heard the case of Harris v. Quinn, which involved an Illinois state law that authorized home care workers paid by the Medicaid program to decide, by majority vote, whether to join a union. Illinois provided that, if a majority of workers voted to unionize, nonmembers would not be required to join the union or pay to support political activities, but could be required to pay fair share fees. These fair share fees cover the administrative costs of collective bargaining, handling grievances, and similar activities that benefit all workers, union and non-union.

During oral argument in Harris v. Quinn, Justice Alito stated that he didn’t understand “why the union’s participation” in bargaining for benefits and wages with the state “is essential.” His majority opinion held that home health workers, as individuals who were paid with state Medicaid funds, were not “full-fledged” public employees. Accordingly, the 5-4 Court held, the union violated the First Amendment when it required non-union members to pay fair share fees. Even though Justice Alito criticized Abood in the majority opinion, the Court, importantly, did not overrule the 37-year old precedent as it applied to “full-fledged” public employees like teachers and police officers.

The Court Should Abide By the Clear, Longstanding Precedent in Deciding Friedrichs v. California Teachers Association

This time, the question squarely before the Court is whether to overturn the decision in Abood, and to hold that the collection of fair share fees from non-union public employees violates free speech rights. The challengers, motivated by political and ideological goals are taking their arguments too far.

Friedrichs is not Quinn. Unlike in Quinn, the employees in the teachers union at issue in Friedrichs are unquestionably public employees, putting the case squarely in line with Abood’s longstanding precedent upholding fair share fees for public unions. Each teacher can choose whether to join the union, but all teachers enjoy the benefits, job security, and other protections that the union negotiates. Without fair share fees, a union’s ability to represent everyone would be crippled. Why would someone join a union when they could choose to not join the union, reap the benefits of union representation, and never have to pay a dime for the benefits? As one scholar put it, “A holding for the petitioners in Friedrichs would invalidate agency [i.e. “fair share”] fee provisions in countless longstanding contracts, undermine public workplace relationships, weaken unions’ abilities to represent workers, and destabilize settled law.”

Unions have been and continue to be critical to achieving better pay and benefits for workers—especially women. In 2014, the Bureau of Labor Statistics found that union members had median usual weekly earnings of $970, compared to $763 for workers not represented by a union. That’s a difference of $207 per week in the pockets of those covered by union representation.

And for women, the effects were especially great: female union members who work full time typically make $904 per week, which is $217 more than female non-union workers, who typically make $687 per week. And while there is a 10.9 percent gender-based wage gap for female union workers, female non-union workers tend to face an even larger gender-based wage gap, at 18.2 percent. Moreover, union representation has had a particularly beneficial impact on women of color. Among full-time workers, African American women union workers typically make 34 percent more (or $202 more per week) than African American non-union workers, and that jumps to 46 percent for Latina union workers, who make $237 more per week than Latina non-union workers. Workers’ ability to band together as a union lifts the boat of every employee—especially for women workers.

Despite prior Court decisions weakening unions, the Court has refused to overrule the 37-year precedent set in Abood, and doing so now would be a dramatic rejection of longstanding, well-settled precedent. The Court has not yet set a date for oral argument in Friedrichs, but will hear it before the end of the Term.

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