Why the Supreme Court Should Leave Well Enough Alone and Let Workers Build Unions

Current discussions regarding the Friedrichs v. California Teachers Association case now before the U.S. Supreme Court are missing the critical implication of this debate. The case revolves around whether a public sector union employer negotiated collective bargaining agreement can include a provision for what is known as “agency fee.” Agency fee refers to a payment that employees who choose not to join a labor union pay the union for purposes of representation. It is not, contrary to some statements in the media, union dues. It is something very different.


News reports regarding the Friedrichs case suggest that the main threat to unions and workers posed by the elimination of agency fee is the draining of union resources that can be used for political action, a major objective of the political right. Yet that threat, while real, is secondary to the more fundamental threat: the elimination of resources badly needed in order to represent workers in their work lives.

Central to the National Labor Relations Act, which has guided labor relations since its passage in 1935, and the subsequent Supreme Court decision upholding it in 1937, are two notions: first, that the public policy of the United States was to support collective bargaining and industrial peace, both of which were seen as crucial cornerstones to labor/employer relations in the USA. Second, that a union selected by a vote of eligible workers is the exclusive representative of the workers of the particular bargaining unit.

The Court has been very clear, especially since its seminal ruling in Steele v. Louisville Railroad (1944), that a labor union must represent the collective interests of the workforce and must also represent the interests of individual workers who are threatened by actions on the part of management that allegedly violate the collective bargaining agreement. The Court has maintained that the union must represent such workers irrespective of union membership.

What does this mean concretely? It means that an individual worker who chooses not to join the union that represents his or her bargaining unit will benefit by what the union negotiates and can go to the union and demand representation in the face of any contract violation. Thus, a non-union worker can gain all of the benefits of representation yet pay nothing. This defines “right to work,” the clear intent of which is to make it exceedingly difficult for a labor union to represent workers and build their power.

Some on the political right suggest that the Friedrichs case has something to do with freedom of speech. That is pure sophistry. There are no freedoms being suppressed. Consider this scenario. Let’s say that a town has a voluntary tax program. Citizens may voluntarily pay taxes but should they choose not to, they are, nevertheless, entitled to public services, e.g., police and fire department; water and sewer. How many towns in the USA operate on that basis?  How many towns and cities would even consider such an approach? Would a voluntary tax program advance the freedom of speech of those who disagree with decisions by the local government?

Labor unions cannot fully operate without funds derived from fees paid by workers covered by the collective bargaining agreement. The agency fee was created as a mechanism to offset the costs of representation. It does not require that a worker pay union dues. It does not compel a worker to adopt a position any issue. It acknowledges that the beneficiaries of a system of collective bargaining have a responsibility to shoulder some of the costs of collective bargaining.

A decision by the U.S. Supreme Court against the California Teachers Association is a decision that advances the notion that an institution obligated by law and precedent to represent all, must do that using only the resources of those who are committed to the organization rather than  the resources of all those benefiting from the work of that institution.

A friend told me a story that put this all together. A postal worker chose not to join his union. As part of the federal sector, he was not obligated to join. One day his hours of work were changed. The worker went ballistic because this change would unsettle his entire life. Despite the fact that he was not a member of the union he went to the union for representation. The union fought on his behalf and won him back his original hours. My friend then asked this worker whether he was going to now join the union. The worker smiled and said, “No, I don’t have to.”

A decision against the California Teachers Association is a decision in favor of greed and against the notion of personal and collective responsibility. It is nothing more than a cynical move in equally cynical times.

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