Typically, in an “agency shop” every employee – every teacher in a school district, for example – will be represented by the recognized union. Employees are allowed to refrain from membership, but they are expected to pay a fee for the services that union performs on their behalf. Otherwise, it is feared, some employees would be free-riding off the contributions of the others, the union members.
Importantly, the fee charged non-members can and usually will be smaller than membership contributions, because it will not include payment for “ideological causes,” such as the support of candidates deemed pro-Labor at the federal or state level. The non-members are supposed to pay fees that cover only bargaining-related costs, such as clerical or overhead costs or the costs of bringing in “hired gun” negotiators or economists.
Disaffected non-union employees in the public sector often bring lawsuits challenging this distinction, and trying to get clear of their agency-shop obligations on a first amendment freedom-of-association theory, so they will not have to pay any fees at all.
In the 2016 term, the Court heard the case of Friedrichs v. CTA, a constitutional challenge to the way collective bargaining has long worked in the public sector.
Right Wing View
Right wing political forces in the U.S., which support the discontent of these non-union employees, have gradually been gaining jurisprudential ground on this point, although the right has never landed the long-sought knock-out blow it wants at the Supreme Court.
The issue of mandatory non-member payments was argued before the Supreme Court in Harris v. Quinn (2014). That case involved Illinois’ Home Services Program, and the SEIU Healthcare union. The Supreme Court avoided the issue, though, when it decided that the workers weren’t in the public sector after all, they were paid by Medicaid, but they were hired and fired by the individual patients to whom they provided at home care. Thus they could not be compelled to join the union, and whether they had to pay a lesser agency fee was a simple contract issue not a first-amendment matter at all.
In Friedrichs, SCOTUS couldn’t avoid the issue, since the teachers clearly were public employees, but it didn’t settle the issue either, it split down the middle. If Justice Scalia had enjoyed a longer life, he would have cast a tie breaking vote and the issue would be settled in favor of the freedom-of-association claim.
President Trump’s appointee Neil Gorsuch is now on the bench. If all the other votes break down in the new case (Janus v. AFSCME) the same way that they broke down in Friedrichs, and Gorsuch votes the way nearly everyone expects, then the right will have achieved its breakthrough Supreme Court precedent.
Left Wing View
Kyle Arnone tweets, “When the GOP stole this seat, [refusing to hold hearings on former President Obama’s nominee for the Scalia spot] they did so knowing it would tip the balance of power away from working families.” Arnone is National Research Coordinator for the Kaiser Permanente Unions and tweets vigorously on the subject of collective bargaining.
Last year the percentage of employees in the United States who are members of any union fell to a new low: 10.7%, according to Pew Research. That is just the latest new low in what Pew Research describes as a “long downward slide.” The number was nearly twice that, 20%, in 1983, and that already represented a come-down from the golden age of unionism in the middle of the 20th century. Advocates of collective bargaining see this as a make-or-break decision for that cause.
None of the above has gone into the actual arguments, in courtrooms or in the public domain, that the right and the left make on such matters. We have for the most part adumbrated where they find themselves, and how they got here. But the purpose of any Part I is to set the table for a Part II.