Teachers Unions at Risk of Losing "Agency Fees": Friedrichs V. California Teachers Association Could Fundamentally Alter the Education Labor Landscape

By Antonucci, Mike | Education Next, Winter 2016 | Go to article overview

Teachers Unions at Risk of Losing "Agency Fees": Friedrichs V. California Teachers Association Could Fundamentally Alter the Education Labor Landscape


Antonucci, Mike, Education Next


FOR 50 YEARS, American education policy has often danced to the tune of labor realities. How much money is spent, and where, who is hired or fired, how we promote effective teaching, how we measure education outcomes, and more--all are affected by the relative power of the teachers unions at any given moment.

Now a case awaits hearing by the U.S. Supreme Court that could dramatically change this picture. The Far Left periodical In These Times calls Friedrichs v. California Teachers Association the case "that could decimate American public sector unionism." Perhaps that's simply an ideological overstatement. Nonetheless, the case, if decided for the plaintiffs, could end the practice of "agency" fees--money paid to the union by nonmembers in exchange for collective bargaining services. Unions call them "fair-share" fees and assert that their elimination would create a class of free riders, workers who would pay nothing while still enjoying the higher salaries and other benefits negotiated by unions.

The stakes for teachers unions are high, as a 2011 Wisconsin law illustrates. Wisconsin Act 10, known as the Wisconsin Budget Repair Bill, eliminated agency fees there and reshaped the collective bargaining process. Since the law's passage, membership in the Wisconsin Education Association Council and the American Federation of Teachers-Wisconsin has fallen by more than 50 percent, according to a 2015 report from the National Education Association (NEA). In 2014, NEA membership in agency fee states grew by 5,300. In states without agency fees, it fell by more than 47,000.

Accordingly, at a conference of the California Teachers Association (CTA), the union briefed its activists on the potential consequences should the unions lose in Friedrichs, citing loss of revenue; fewer resources; decline in membership; reduced staffing; increased pressure on the CTA pension and benefit system; and potential financial crises for some locals.

The CTA may be overstating the possible consequences of Friedrichs. With a combined employed membership of about 3.5 million, the National Education Association and the American Federation of Teachers (AFT) collect agency fees from only about 130,000 workers nationwide. Their loss would not devastate the national teachers unions--but the unions have more to fear than that. To understand the potential for change, we need to delve into the legal foundations of the agency-fee system and how they work in practice.

From Abood to Alito

Decades of litigation and Supreme Court decisions have led to the current state of affairs in labor law, but for public-sector employees, the Supreme Court's 1977 decision in Abood v. Detroit Board of Education holds sway. In that case, the Court held that no one can be forced to join a public-sector union as a condition of employment. Nor can one be forced to contribute to the union's political speech and activities. However, in California and 20 other states, teachers unions are allowed to charge nonmembers a fee equivalent to dues to cover the costs of bargaining contracts, processing grievances, and other administrative activities (see Figure 1). The Abood decision upheld this practice.

In those 21 states, public school teachers must pay either dues or agency fees. Failure to pay is the only instance when the union will allow a school district to summarily fire a teacher. In fact, the union will demand it.

Unions assert that agency fees do not violate freedom of speech because the fee-payers are reimbursed a portion of their money annually, based on how much the union has spent on political and other "nonchargeable" activities. This assertion is being challenged by the Friedrichs plaintiffs, who counter that the agency-fee system is an infringement of the First Amendment rights to both free speech and free association. They maintain that collective bargaining in the public sector is itself inherently political: The union negotiates with a government entity, generally a school board representing local citizens. …

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