United States Supreme Court to Hear Case That Could Declare Agency Fees for Public Employees Unconstitutional

Mackinac Center Legal Foundation Filed Amicus Brief Asking Court to Hear Case

Tuesday, June 30, 2015

Contact: Patrick Wright, Vice President for Legal Affairs, (989) 430-3912

MIDLAND – The United States Supreme Court announced today that it will hear the case of ten California public schoolteachers suing to leave their union. The case, Friedrichs v. California Teachers Association, could extend “right-to-work” to all unionized public employees by ruling that agency fees are unconstitutional. The lawsuit was filed by the Center for Individual Rights.

In March, the Mackinac Center Legal Foundation (MCLF) submitted an amicus brief to the Supreme Court, urging it both to take the case and find in favor of the teachers. Such a decision would overturn the 1977 ruling in Abood v. Detroit Board of Education, which allowed public sector unions to impose “agency fees.”

Under current law, people represented by unions in non-right-to-work states generally must pay agency fees in lieu of membership dues, even if they disagree with the union’s political behavior or do not want to otherwise associate with it. Agency fees are slightly less than dues, and unions say they reflect the money the union spends to represent each employee in collective bargaining and grievance administration, but not for political expenses.

In the amicus brief, the MCLF argues for the elimination of agency fees. The state interest that the Supreme Court has held justifies compelling individual employees to associate with a group they do not want to belong to is that exclusive representation may help bring “labor peace.” But a state that wants this exclusive representation need not allow agency fees for unions to exist. Michigan passed right-to-work legislation in 2012, and despite a dip in membership, the state’s unions continue to survive financially. When asked if it would prefer not to represent those in its constituencies who no longer pay dues, the Michigan Education Association said no, saying that having exclusive bargaining rights was important.

Additionally, the legal foundation believes that all public sector union activity constitutes political activity. As Patrick Wright, vice president for legal affairs at the Mackinac Center, wrote in the Friedrichs amicus brief, “In the private sector, a union bargains with the employer and lobbies with government, while in the public sector, a union both bargains with and lobbies the government.” If a union works exclusively with the government, all of its speech becomes political.

The Supreme Court is expected to hear oral arguments in the case sometime during the 2015-16 term with a decision announced sometime before June 30, 2016.

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