In 1977, the Supreme Court approved in Abood v. Detroit Board of Education, the agency fee arrangement which requires that non-union members to pay their “share” of the costs of bargaining and contract administration due to a union’s duty to fairly represent all of the workers at a “shop”, not just its dues-paying members. This arrangement prevents “free-riding” by non-union employees without implicating non-union members’ First Amendment rights because agency fee-payees can opt-out of contributing towards the union’s other activities such as political or social advocacy.
However, in June 2014, the Supreme Court held in Harris v. Quinn, that the State of Illinois could not treat its Medicaid-paid home health aides as government employees for the purposes of subjecting them to the state’s compulsory union dues requirements. This decision has stifled the efforts of unions to replace dwindling numbers of private union membership with a new class of quasistate/quasi-government employees that can be unionized via state compulsory union laws. The Court distinguished public employees covered by Abood, from quasi-public employees or partial public employees, like the home health aides in Harris, whose customers (private individuals) have the final say and decision-making power in their hiring, firing, scheduling, and duties rather than state or government making these decisions. The Court furthered reasoned that there is very little that unions can do to adequately represent the individual interests of these home health aides because their interests vary.
Notwithstanding the ruling in Harris v. Quinn, full-fledged public employees such as public school teachers, firefighters, police and other civil service employees continue to be subject to the compulsory dues in the twenty-six non-Right-to-Work states. These public employees may choose to either join the union and pay full membership dues, or opt-out of union membership and only pay the requisite agency core fee in order for the union to be financially able to represent and bargain for all of its employees in a given bargaining unit.
With that being said, unions are rightfully fearful of what the aftermath of Harris v. Quinn could mean for labor in the future. In fact, Freidrichs v. California Teachers Association (CTA) is a pending case from the Ninth Circuit Court of Appeals, which may reach the Supreme Court during its next term.1 The case concerns a group of public school teachers from California who are challenging the compulsory union dues on First Amendment grounds. These teachers are asking the Supreme Court to overrule the longstanding rule of Abood which requires public employees to pay their share of the agency fee to the unions that represent their bargaining interests. If Abood is overruled and compulsory agency fees are no longer required, unions could suffer major losses in its membership, financially, and in its overall bargaining powers. A favorable outcome for the California Teachers Association is likely to change the face of the labor movement for public employees.
1 Petition for writ of certiorari is currently pending before the Supreme Court.