Right to Work and the Friedrichs Case
On January 11, 2015, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association. Rebecca Friedrichs, a schoolteacher in Anaheim, California, brought the case, which addresses two key questions: do public-sector union agreements violate the First Amendment’s protections of freedom of speech and assembly, and does the First Amendment prohibit the practice of requiring public employees to affirmatively opt-out of subsidizing political speech rather than to affirmatively consent?
Under the Labor Management Relations Act of 1947, also known as the Taft-Hartley Act, states can decide whether to enact right to work laws. There are currently 26 states with such laws. Right to work statutes prohibit agreements between unions and employers that make union membership a condition for employment. Employees can be hired and work without supporting or paying for union membership or collective bargaining.
But in the 1977 case Abood v. Detroit Board of Education, the Supreme Court held that an individual who works for unionized employers, such as Rebecca Friedrichs, could still be charged for partial dues, or “agency fees,” to cover non-political actions of the union such as contract negotiations. The case was seen as addressing the “free-rider” issue of non-union members whom, unions claim, benefit from their negotiations. In California and 22 other states, public employees who “affirmatively opt-out” annually are still required to pay the discounted “agency fees” that underwrite non-political union efforts that theoretically benefit all employees. Friedrichs believes that she should not be forced to pay agency fees because collective bargaining done by public sector employee unions is inherently political (her case covers only public employees).
Outside of constitutional questions, right to work has proven to be effective. According to a December 14, 2012 article in The Wall Street Journal, employment in right to work states grew by 71 percent from 1980 to 2011, while it grew only by 32 percent in non-right to work states. In 2014, the National Institute for Labor Relations Research found that average living-adjusted disposable income per capita was nearly $2,000 higher in right to work states; the six highest-ranking states are right to work states while 11 of the 14 lowest-ranking states do not have right to work laws. According to the National Right to Work Committee, it costs a family in (non-right to work) California 25 percent more to live as equally well as a family in (right to work) Florida, while costing a (non-right to work) New Jersey family 27 percent more to live as well as a (right to work) Virginia family.
Union advocates claim that a ruling in favor of Rebecca Friedrichs is a death sentence for unions across the country because they need agency fees in order to negotiate contracts. They may have a point: Michigan passed right to work legislation in 2012, and since then membership in the two largest unions, the Michigan Education Association and the American Federation of Teachers-Michigan, declined by 20 percent and 21 percent respectively. Indeed, union dues, not employers, are the greater threat to paychecks: in California, agency fees are roughly 70 percent of regular union dues, which can be as high as $1,000 a year.
If the Court decides to prohibit the collection of agency fees from public employees, unions would still have the ability to represent public sector employees; they could just not force non-members to pay them anything. This case will be closely watched, as it will have vast implications for workers’ rights, union membership, and the economy as a whole. A decision is expected in late June of 2016.
