Does the U.S. Constitution prevent unions from essentially having veto power over who can be a public employee? We think so, which is why the Mackinac Center Legal Foundation has asked the United States Supreme Court to rule that the decades-old practice of requiring “agency fees” from employees is unconstitutional. If the Supreme Court were to make the fees unconstitutional, it would have the practical effect of extending right-to-work to all public sector employees.
In a 1977 case involving Detroit school teachers, Abood v. Detroit Board of Education, the Supreme Court first allowed unions to extract agency fees. These fees are paid by public employees who are within a bargaining unit, but who do not want to be associated with the union. The court held that there were two reasons that the employees could be forced to pay a fee, which is typically 80 percent of the dues amount. One, a government could value exclusive representation and not want to have to bargain with multiple unions or individuals. Two, agency fees would prevent so-called “free riders,” which the Court has defined as people who share “the employment benefits obtained by the union's collective bargaining without sharing the costs incurred.”
Based on this ruling it became common for collective bargaining agreements in the public sector to include a clause that allowed the union to demand the firing of an employee who did not pay the fee. Then came a series of cases that reached the Supreme Court about which union expenses could be included in determining the fee. But the fee itself was presumed proper as late as January 2009, when the Supreme Court decided extra-unit litigation costs could be included.
Early that same year, Sherry Loar walked through the doors of the Mackinac Center and told us that she — as a home-based day care provider, or private business owner — was being forced to pay dues to a public sector union. She became the Mackinac Center Legal Foundation’s first client, and her case received immense publicity. We wrote an op-ed on her plight for the Wall Street Journal, John Stossel of Fox News ran a piece on it, and Rush Limbaugh discussed the matter on his radio show. Our allies, like the National Right to Work Legal Defense Foundation, took up the fight and filed their own lawsuits.
Perhaps not coincidently, the Supreme Court began to show renewed interest in the question of agency fees. When the case of Harris v. Quinn reached the Court, many people hoped that Abood would be overruled. Instead, the Court held that home-based day care providers and home-help workers could not be forced to pay agency fees. (We had filed a brief in this case.) Abood’s underpinnings were challenged by the majority opinion, which noted that there is no reason that a state that wants the benefit of exclusive representation must require payment of an agency fee. The dissent argued to the contrary and claimed that without agency fees unions would not exist. But the Court left a reversal of Abood for another case.
Friedrichs v. California Teachers Association may be that case. We filed an amicus brief seeking to assist the plaintiffs in convincing the Court to hear the case and in the process re-examine Abood. Our brief took on the dissent from Harris. We looked at Michigan’s experience as a right-to-work state and in particular the effect of that law on the Michigan Education Association. Further, we looked at data from all the states that showed well-run unions have nothing to fear from right-to-work (or its constitutional equivalent). The data show that the Harris majority was correct: A state that wants the “value” of exclusive representation need not allow pay-or-be-fired clauses in collective bargaining agreements. Abood should be overruled and its decades-long effect of unjustly enriching public sector unions should be cast in the dustbin of history.