What AFT members need to know about the ‘Friedrichs’ case

A union member in this time of constant attacks on working families could understandably be excused for feeling battle weary. Every election, we are told, is the most important election, and every fight is the biggest fight against the longest odds. It is hard to cut through the hype and identify the real threats.

It’s important, though, to be aware of a U.S. Supreme Court case that may present us with a national challenge and a tremendous opportunity.

In Friedrichs v. California Teachers Association, a group of educators backed by a right-wing pressure group filed a lawsuit that has made its way to the highest court in America. It asks the court to decide whether public sector unions may continue to charge nonmembers a fee equal to the cost of representing them to their employer.

This fee is called “agency fee” or “fair share.” In states where there is no fair share, the union must sign up everyone as a member—not merely a fair share payer—to keep the union strong.

If the court rules against us, then our work to support working families and reclaim the promise of public services will become harder. But if we are prepared, our efforts will become stronger.

Here’s what AFT President Randi Weingarten has to say about the importance of member mobilization.

“Our job—on top of all our other jobs—is to connect with other members,” Weingarten told members at the PSRP conference last month in Washington, D.C. “We have to go back to making this a movement, like 100 years ago when people had no power.”

Why is union power so important? Here is the main reason: our students, our patients and the public we serve. More union power brings more resources for public services—better opportunities for students, safer hospitals and other public facilities, and the best infrastructure available to help our nation thrive in a global economy. Public sector employees want these things for their students, their patients and the public, and a powerful union helps get them. When unions are strong, income inequality lessens and we have a larger and more vibrant middle class.

What’s behind the case
To appreciate what Friedrichs is about, it is important to understand how collective bargaining works in our country.

Let’s say public sector workers in a given workplace decide they want to form a union. Once they choose union representation, the union becomes their exclusive representative. In other words, the union is the only organization permitted to represent their interests to their employer. What’s more, the union is required by law to represent their interests. This is true even if a worker chooses not to join the union and pay union dues.

The First Amendment gives all of us the right to join or not join any group we want. It is easy to see how this could present a challenge for the union; it has the legal obligation to represent all workers in the workplace, whether or not they join.

To deal with this problem, unions developed the concept of agency fee, also known as fair share—because it’s only fair that employees who reap the benefits of a good union contract pay their fair share of the cost of negotiating that contract. Workers in a unionized workplace who don’t want to join the union may be required to reimburse the union for that cost.

The agency fee equals the amount of money needed to represent a member in collective bargaining. Other expenses, such as costs for political activity, are not charged to fair share payers—in other words, these nonmembers only pay for bargaining and administering a contract that covers their wages, hours and working conditions.

Depending on how a particular union operates, the cost of representation for each agency fee payer may range from a small fraction of the membership cost to almost as much as membership.

In the 1970s, a group of teachers in Detroit who did not want to join the Detroit Federation of Teachers or pay the agency fee brought a lawsuit,Abood v. Detroit Board of Education. They argued that having to pay the fee violated their First Amendment right to associate with whoever they wanted to. The Supreme Court upheld the agency fee, saying it did not violate the First Amendment.

Abood has remained the law of the land since 1977. However, over the past few years, the Supreme Court has decided two cases calling that law into question.

In 2012, the court held in Knox v. SEIU that the First Amendment does not permit a public sector union to impose a special assessment unless a worker opts in. Two years later, in Harris v. Quinn, the court said the First Amendment prohibits the collection of agency fees from home healthcare providers, whom the court determined to be “partial” or “quasi” public employees, not full-fledged public employees like those inAbood.

Now there’s the Friedrichs case. The court will choose what it decides on, but it is being asked to answer two questions: (1) whether public sector agency fee arrangements should be invalidated under the First Amendment; and (2) whether it violates the First Amendment to require public employees to opt out of paying full dues (as they must do now) rather than having to opt in, which would force unions to sign up members over and over again every year.

At the end of the day, what this really means is yet another attack by those who do not share our vision for worker rights, a strong middle class and the American dream.

Reclaiming the promise
Friedrichs represents a real threat to workers, so we have two choices: We can agonize or we can organize. The AFT already is rising to this challenge, operating as if the justices will issue an unfavorable decision. Many of our members are working hard to sign up and activate members, especially by bringing nonmembers and agency fee payers on board as members.

The AFT is a union of professionals, a union of solutions and a union of action. AFT members are talking the talk and walking the walk, championing fairness, democracy and economic opportunity for all. This is what reclaiming the promise is all about. We and our community partners are in this fight together. We can win complete membership in our local unions. And when we do, we’ll come out stronger.

[Sam Lieberman, Tim Shea, Robert Morgenstern]