WASHINGTON -- The U.S. Supreme Court agreed on Tuesday to consider a case that could effectively make union membership dues optional for public employees. The vast majority of faculty members who are represented by unions are in public higher education, and such a shift could be devastating to the financing of their unions.
Currently the norm for faculty unions is that if they win a vote to represent a bargaining unit, all members of that unit must pay for the costs of collective bargaining in the form of dues. Members of a unit who object to political stances of a union may get a refund for those expenses, but are still required to pay what is known as a “fair share” of union costs that are related to bargaining and representation. That requirement could go away, depending on how the Supreme Court rules.
“If the Supreme Court rules that ‘fair share’ violates the First Amendment rights of public employees, they would transform the entire public sector into right to work, more appropriately named ‘right to freeload,’” said Rudy Fichtenbaum, a professor of economics at Wright State University and national president of the American Association of University Professors, which acts as a union on some of the campuses where it has chapters (but not at others).
The case accepted by the Supreme Court is Friedrichs v. California Teachers Association, which was brought by high school teachers who believe that they should not have to pay the “agency fee” for being represented by a union. They argue that unions engage in activities that inherently are forms of speech, and that employees should not be required to pay the unions anything. Such requirements compel the teachers to support activities with which they disagree and thus violate their First Amendment rights, the teachers say. The legal theory they have put forward has been one that many conservative legal groups have embraced, hoping for a case like this.
Since 1977, when the Supreme Court found that there was a right for unions to charge an agency fee, the legal right to do so has been clear. The new case explicitly asks the Supreme Court to reverse the 1977 ruling.
While union leaders believe that they provide valuable services for their members and win them better contracts, many predict that some unknown but potentially significant number of union members would simply opt not to pay any membership dues. Federal labor law requires the unions to represent the interests of all employees in a bargaining unit, so a union would remain bound to, for example, handle a grievance of or provide advice to a faculty member who paid nothing.
Dues vary from campus to campus and union to union. Fichtenbaum said that most AAUP collective bargaining dues are from 0.7 to 1.2 percent of salary.
Frederick E. Kowal, president of United University Professions, the faculty union at the State University of New York, said that dues there are about 1 percent of salary. His union is affiliated with both the American Federation of Teachers and the National Education Association.
He said the lawsuit was “an insidious way to bankrupt unions.”
Union supporters note that the organizations are elected to represent employees, and that employees have the right in elections to vote out the leaders if they don't like the way the union is being run and can even vote to end collective bargaining. So they argue that there are many options for those who may disagree with a union's position or strategy.
William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said he saw the case as extremely significant for faculty unions. But he stressed that many unions have strong ties to members and with additional outreach could encourage many members to continue to pay dues. This shift “could rekindle internal organizing,” he said.