Unions Making Efforts to Protect Agency Fees in Light of Upcoming Supreme Court Case

On June 30, 2015, the U.S. Supreme Court agreed to take up the case of Friedrichs v. California Teachers Association - a case that challenges California’s “agency fee” laws.  While this case will not be heard and decided until next year, public sector unions in California are already mobilizing a response to this potential threat to their financial coffers.

“Agency fees” or as unions prefer to call them, “fair share fees” were incorporated into the Education Code in 2000, when Governor Gray Davis signed SB 1960.  This law amended the EERA and the Education Code to require public school employees in a unit covered by a union to either join the union as a condition of employment, or to pay the union a “fair share services fee.” This service or agency fee “shall not exceed the dues that are payable by members of the employee organization” and is generally limited to covering activities “germane” to collective bargaining.  (Govt. Code § 3546(a).)  An agency fee is not supposed to include the portion of a member’s union dues which goes to political causes.  The law explicitly allows, however, that the services provided under these mandatory fees may include “lobbying activities” that “secure for the represented employees advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and negotiating with the employer.”  (Govt. Code § 3546(b).)

Friedrichs v. California Teachers Association, was filed by 10 public school teachers who had resigned their union membership.  They argue that these laws forcing them to pay agency fees violate their free speech rights.  They assert that union activities, including collective bargaining, inherently involve policy and political issues.  For example, state law authorizes teachers unions to bargain over “class size,” a hotly debated policy issue.  Plaintiffs further argue that even basic bargaining over wages and hours is a political matter as it involves the spending of tax dollars and the size of government.  By requiring them to pay an agency fee to cover these union activities, the Friedrich plaintiffs argue that they are being compelled to support a political position they may not agree with – in violation of their right to free speech.  If the Friedrich  plaintiffs were to prevail, the U.S. Supreme Court could rule that public employees cannot be compelled to pay any dues or fees to their bargaining unit.

Oral argument dates have not yet been set by the U.S. Supreme Court in the Friedrichs case, and a decision is unlikely to come out until late next year.  However, California public unions are already making efforts to protect agency fees in advance of a potential negative outcome.  For example, during the last week of the legislative session, reports surfaced that labor groups were attempting to slip language into a bill that would allow unions to provide a 30-minute orientation to all new employees during work hours.  This would essentially allow unions to lobby new employees to voluntarily join the union in an effort to reduce the number of those who would opt-out.  (See Cadelago, California Union Fees Case Spurring Late-Session Talks at Capitol.)

Districts should expect additional legislative and lobbying efforts by public sector unions over the next year to attempt to protect their coffers and preserve agency fees.

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