Supreme Court To Hear Challenge To Public Sector Union Fees For Non-Members

On June 30, the United States Supreme Court agreed to hear a long-awaited challenge to the practice of allowing unions to collect fees from public sector employees who do not wish to be union members. In the more than 20 states that allow these compulsory "agency fees," public sector unions receive the financial support of all employees for their collective bargaining efforts, regardless of whether employees agree with the union's objectives or methods. The Court's decision on the question of whether these fees are constitutional will have significant implications for the free association rights of hundreds of thousands of public employees as well as the lobbying strength of the public sector unions nationwide.

The plaintiffs in Friedrichs v. California Teachers Association, 10 California public school teachers, argue that by allowing the union to compel their payment of agency fees, the state has impinged on their First Amendment rights by forcing them to subsidize the speech of a group with which they do not agree.1 While agency fee payers theoretically only pay for costs directly related to a union's collective bargaining activities, the Friedrichs plaintiffs argue that there is no meaningful difference between collective bargaining and lobbying by a public sector union, as both activities entail an attempt to influence government decision making with regard to matters of public policy.2 As the Court itself observed in Abood v. Detroit Board of Education, the 1977 decision allowing unions to collect agency fees from public employees, direct lobbying of public officials away from the bargaining table may often constitute bargaining-related activity for which the union may charge non-members.3 Should the Court be unwilling to invalidate public sector agency fees altogether, the plaintiffs have alternatively asked the Court to minimize the burden on non-member public employees by requiring employees to affirmatively consent to supporting unions' non-chargeable political activities rather than permitting unions to collect these fees until employees "opt out" of subsidizing those activities.4

The Friedrichs challenge comes at a time when the Court has indicated that it may be ready to reverse its decision in Abood. In that case, the Court recognized that compelling employees to financially support a union affects First Amendment interests,5 but it held that the justifications for agency feesthe risk of "free-riders" and the desirability of...