Thursday, February 18, 2016

The Fate of Friedrichs

Many of our clients have inquired about the U.S. Supreme Court case involving “fair share” union dues. The case involves a California teacher named Rebecca Friedrichs and it raises an issue that lies at the heart of most public sector union’s success; the ability to collect dues from every person in a bargaining unit regardless of whether or not they support the union or its objectives. The case was recently argued and a decision is expected this summer.

Ms. Friedrichs, who has elected not to be a member of the union, is challenging the fact that she has to pay her “fair share.”  The union claims that fair share dues are necessary for non-members in order to offset the costs associated with collective bargaining. The unions take the position that the work they do in collective bargaining benefits everyone in the bargaining unit, regardless of whether or not everyone in the bargaining unit chooses to join the union and pay dues. Ms. Friedrichs disagrees with this notion, claiming that the requirement that she pay fair share dues to support the union violates her right to freedom of speech and association under the First Amendment.

Friedrichs’ position is that the alleged “benefits” negotiated by the union are not really benefits from her perspective. She takes the position that the defined benefit pension results in an unacceptable cost to her community and that the union uses her money to protect ineffective bad teachers. The main argument in Friedrichs’ case is that public sector union activity in collective bargaining has an impact on taxpayers and amounts to political activity.

Only the most intellectually bankrupt individuals can argue that public sector unions are not engaged in the political process. Whether you support the agenda of public sector unions or not, it is logically impossible to dispute their involvement in politics. Look no further than Springfield where public sector unions have curried political favor for years. Illinois’ labor friendly statutes such as the Public Safety Employee Benefits Act and the Public Employee Disability Act are just two examples of legislation that was pushed through, in large part, due to the efforts of public sector unions. Both of these laws have a significant impact upon taxpayers and in recent years, have seen increased abuses. Efforts to change these laws have met with significant and successful resistance from the unions. It is this type of union activity that Ms. Friedrichs is challenging. Simply put, she is saying don’t use my money to do things that hurt my community. And it appears that some members of the court agree with her.

Justice Anthony Kennedy noted during oral arguments that unions’ ability to collect fair share dues makes those who don’t support the union agenda “compelled riders for issues on which they strongly disagree.” The First Amendment is supposed to provide citizens with the inherent right to support or disagree with any association or group. Compelling bargaining unit employees to pay an organization whose agenda they do not support appears to be an obvious violation of this right.

While many observers believed that the Friedrichs case would likely spell the end of fair share, the recent death of Justice Antonin Scalia may alter the expected outcome. While we can all agree that the Supreme Court should be free of politics and its justices should decide cases based upon a pure application of the law to the facts of the case, we can also agree that that’s nothing more than shear fantasy. In this case, regardless of your politics, it’s hard to argue that someone should be compelled to pay money to an organization whose agenda they do not support. To be frank, forcing Ms. Friedrichs to pay union fair share dues is really no different that forcing President Obama to pay NRA dues.

Unions can and do exist without fair share. Just look to every right to work state in the United States. Unions exist in those states and many thrive. They just have to work harder to convince their members of their worth and get them to pay for the services provided by the union and that makes sense. Forcing people to pay for something they don’t want is wrong and in this case, unconstitutional. Now we’ll just have to wait and see how the political climate shapes the outcome of this case.