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SCOTUS Accepts Challenge to Public Employee Union Dues

By Casey C. Sullivan, Esq. on July 01, 2015 | Last updated on March 21, 2019

Right before it left for summer break, the Supreme Court granted cert to a case that will leave many teachers worried about their future. On the last day of its 2015 term, the Court agreed to review a constitutional challenge to state rules requiring some government workers to pay fees to unions they have not joined. The suit came from a group of non-union California school teachers who claimed the fees infringed upon their First Amendment rights.

According to the non-union teachers, they should not be forced to financially support a union they do not agree with. Labor advocates, the California Attorney General, and Supreme Court precedent, however, argue that the teachers benefit from organized labor and should therefore be required to pay their fair share for the benefit. It's likely that precedent won't stand much longer.

A Long Established Rule...

For almost forty years, unions have been allowed to collect dues from non-members, so long as those funds aren't used for political purposes. The rule, established in Abood v. Detroit Education Association, applies to so-called "agency shops," where all workers pay union fees and the union is required to act in the interest of all employees, union or otherwise. California teachers' unions are required by state law to negotiate in the interest of all employees, not just union members. The union's collective bargaining sets the terms and conditions of employment, wages, hours, and benefits.

Since non-members benefit from collective bargaining, the logic goes, they shouldn't be allowed a free ride and must pay their share of negotiation costs. Union advocates say the rule is necessary to prevent free loaders from undermining the effectiveness of collective representation.

...That's Probably Doomed

In last year's Harris v. Quinn case, striking down agency fees for non-union health care workers, a majority of the court indicated that it would consider overturning Abood. In that case, the Court stated that concerns about "free riders" benefiting from union work was "generally insufficient" to overcome claims that it violated the First Amendment.

Should the Court overturn Abood, it would be a great blow to collective bargaining in the public sector. Even though union membership has collapsed over the past 50 years, unions are still strong in government work and education. A ruling will also come in the middle of an election year when unionism, income inequality, and fears about a vanishing middle class are likely to play a role. Whatever the Court decides, expect it to be controversial.

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