Supreme Court Report

Nonunion teachers seek relief from paying fees for collective bargaining

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For more than 40 years, the power of public employee unions has been built in part on money paid by those who refuse to join the union but are still represented as part of the bargaining unit.

In 23 states, those state and local government workers—teachers, law enforcement officers, firefighters and others—who decline to become members of the union must pay fees that cover the costs of collective bargaining.

This system was authorized by a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education, which held that state interests in maintaining labor peace and eliminating “free riders” justified requiring nonmembers to pay such fees, which are known as agency fees or “fair share” fees.

Abood has been called into question in recent years in two opinions written by Justice Samuel A. Alito Jr., who called the decision “something of an anomaly” of First Amendment jurisprudence.

The lead plaintiff among a small group of California schoolteachers whose case, Friedrichs v. California Teachers Association, threatens to upend the public-employee labor sector has had a back-and-forth relationship with her own union.

Rebecca Friedrichs started her teaching career in a small school district in Orange County by refusing to join the local union, which was an affiliate of the California Teachers Association and the National Education Association.

Friedrichs says she was disenchanted with several aspects of the role of teachers unions, so she became an agency-fee payer, a nonmember who must pay the percentage of union dues that goes for collective bargaining and a few other costs.

But eventually, she joined the union—at least for a time.

“After several years of standing on principle, it dawned on me that I wanted to have a voice in my union,” says Friedrichs, who has taught various elementary school grades in the Savanna School District in Anaheim for nearly 30 years.

Friedrichs even became a union leader, serving as campus representative and later an executive board member of her union local.

“But even then I had no voice because I wasn’t in step” with all of the union’s priorities, says Friedrichs, who didn’t want to go knocking on doors on behalf of political candidates endorsed by the union. She had even suggested openness to private school vouchers, something staunchly opposed by the NEA and its affiliates.


Friedrichs is now firmly in the category of nonunion member. She and nine other teachers, who work for several different school districts in Orange County, are seeking to avoid paying the agency fees, which on average can amount to 65 percent of the dues that full union members pay (and can be as high as 100 percent for local dues).

They argue that even collective bargaining activities of the unions are “quintessentially political.”

“At the fundamental level, when a public employee union negotiates for higher salaries, it is negotiating with the government over taxpayer spending,” says Terence J. Pell, president of the Center for Individual Rights, a Washington, D.C.-based public interest legal organization that is representing Friedrichs and the other nonunion teachers.

“A lot of teachers like their union,” Pell says. “They’re going to join and pay dues. What we’re really fighting for is the free speech rights of those who don’t really agree with the union.”

On the other side, Alice O’Brien, general counsel of the National Education Association—which is the parent of the California Teachers Association and the local affiliates—says the challengers “are asking for a ruling that would take down the collective-bargaining laws of 23 states, all of which rely on fair-share fees.”

O’Brien, whose national association receives a portion of each objector’s agency fee, takes issue with the argument that a union’s work on collective bargaining is akin to lobbying and political action.

Public employee collective bargaining “is a process controlled by the states, and the states decide which topics can even be subject to bargaining,” she says. “That’s completely different from political lobbying in which the speaker decides what to talk about.”

Also, the public employee union that is the designated bargaining agent must represent all employees in the bargaining unit. Abood held that agency fees for collective-bargaining costs serve a state’s managerial objectives and justify any interference with the First Amendment rights of dissenting nonmembers.

Agency fees are not allowed to go for the union’s political activities, and under Supreme Court doc-trine the unions must provide an accounting to nonmembers of costs that are chargeable and nonchargeable to bargaining.


A second question in Friedrichs is whether the nonunion members must file paperwork each year to opt out of paying to support union political causes, which the objectors view as cumbersome in practice and also in violation of their First Amendment rights.

This reflects a relatively well-settled distinction between the kind of expenses that are chargeable to agency-fee payers, such as anything related to collective bargaining, and nonchargeable expenses, such as political advocacy and lobbying.

“In our view, the current system that requires teachers to opt out, and to jump through a number of hoops, means there are a number of teachers who support speech they don’t believe in,” says Pell. “We think the system ought to be the other way around.”

Still, the challengers are mainly calling on the Supreme Court to overrule Abood, which the court stopped just short of doing in its 2014 decision in Harris v. Quinn. That decision held that a union could not collect agency fees from objecting home-health workers because they were not full-fledged state employees.

Writing for the majority, Justice Alito spent page after page undermining Abood, but he concluded that it wasn’t necessary to overrule the 1977 case in Harris. Alito was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, wrote a dissent that defended the foundations of Abood.

Some anti-union activists have been targeting agency fees and opt-out provisions for years, not only in the courts but at state ballot boxes and statehouses. Wisconsin and Michigan have in recent years changed their collective-bargaining laws affecting at least some categories of public employees.

The National Right to Work Legal Defense Foundation, a Springfield, Virginia-based group that has represented nonunion members (but doesn’t represent the California teachers), says in an amicus brief that agency fees aren’t needed to induce public employee unions to seek exclusive contracts because of the powers and privileges they get from such arrangements.

Pell of the Center for Individual Rights says one need only look at the California Teachers Associa­tion, one of the most powerful lobbies in the state.

“Once the union becomes that big and powerful,” he says, “it’s hard to take seriously its reliance interests on” agency fees.


The teachers unions have argued that the overruling of Abood would not be the death knell for public-sector unionism that some predict. But the NEA’s O’Brien also notes that if nonmembers were not required to pay agency fees, “there would be some number in the unit who would decline to pay for services they could get for free.”

“Unions that are forced to carry people in the unit for free are weaker,” she says.

Irving L. Gornstein, a visiting professor at Georgetown University Law Center and the executive director of its Supreme Court Institute, says that while he believes there is a good chance that Abood will be overruled, “I do think that there is some possibility that one or two justices will get cold feet.”

Those possibilities include Scalia and Kennedy, based on their past writings in agency-fee cases. Scalia in particular has expressed concerns about the free-rider problem created by exclusive bargaining agreements. He has suggested the states have a “compelling interest” in “distributing fairly the cost of [bargaining] activities among those who benefit,” as he wrote in a concurrence in a 1991 case, Lehnert v. Ferris Faculty Association.

Parties in some close cases have been known to appeal to Kennedy, who is often the middle-ground vote up for grabs, by citing him repeatedly in their briefs.

The unions in this case appeared to be setting their sights on peeling Scalia away from the conservative bloc. Their brief mentions Scalia’s writings 21 times.

This article originally appeared in the January 2016 issue of the ABA Journal with this headline: “Dues & Don’ts: Nonunion teachers seek relief from paying fees for collective bargaining.”

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