High Court Should Strike Agency Fees

U.S. Supreme Court decision could bring right-to-work to public sector

For Immediate Release
Monday, March 2, 2015
Anne Schieber
Senior Investigative Analyst

MIDLAND —In California, workers represented by a union can choose not to be a full member of that union, but they are still forced to pay a fee to the union or risk being fired. That could change next year, if a group of teachers gets its way.

The Mackinac Center for Public Policy recently filed an amicus brief with the U.S. Supreme Court in the case Friedrichs v. California Teachers Association. The case involves public school teachers who are challenging the requirement that they pay the union despite not wanting to belong to that union.

“It is likely the Supreme Court is going to take this case in order to reexamine the constitutionality of allowing unions to impose agency fees. Such fees should be illegal,” said the brief’s Counsel of Record and Mackinac Center Vice President of Legal Affairs Patrick Wright.

Wright explained that the issue resurfaced last year when the Supreme Court ruled in Harris v. Quinn. The Court decided that agency fees could not be charged to home-based health care workers, having the practical effect of making all states right-to-work.

But in the dissent, Justice Elena Kagan argued that broad elimination of agency fees would hamper individual states in determining how best to manage public sector workers. She argued that states may decide it is in their best interest to bargain with a union. She went on to say that if employees had the right to refuse agency fees, many would, which could strip public sector unions of the financial means to participate in the bargaining process.

Because federal law requires unions to represent all workers in a collective bargaining unit, members and non-members alike, defenders of agency fees say it is not unreasonable to ask workers to pay for this service. The trick in agency fees, though, is in determining what counts as work related to representing workers, and what amounts to political or other activity unrelated to representation. Unions vary greatly in the percentage of dues they claim under the term “agency fee.”

Using Michigan as an example, the Mackinac Center set out to prove that the elimination of agency fees would not leave unions without support. It used data sets to show that union membership did not drop precipitously after the state’s right-to-work law went into effect two years ago. The Mackinac Center brief also drew on comments from union leader’s themselves to document that there was no exodus of members.

One key comment came from MEA spokesman Doug Pratt. When a member of the Michigan Senate asked him, in a committee hearing, if the union wished to be relieved of the burden of “exclusive representation” and the possibility of “free-riders.”

After a pause, Pratt said “no” and did not explain why unions demand a monopoly on bargaining. However, the reason is clear. Under exclusive representation, unions can still maintain power over non-members. Non-members are still subject to the rules and conditions set forth in the collective bargaining agreement secured by the union.

Wright argues such comments are proof that even the unions don’t think “free-loading” is a threat to their existence.

Specifically, the Mackinac Center’s brief asks the Court to overrule an earlier case, Abood vs. Detroit Board of Education, which solidified much of the current legal thinking on exclusive representation.

The California case could give the Supreme Court the opportunity to clarify its position on exclusive representation, once and for all, according to Wright.

The Mackinac Center has created a website showing the union membership data it used in its argument.


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