On June 28, 2016 dashed were many hopes to liberate public employees from being forced to contribute to political causes with which they disagreed. The Supreme Court decided not to rehear Friedrichs v. California Teachers Association, a case that was originally decided as a split 4-4 vote after the passing of Justice Antonin Scalia. The 4-4 split meant that the lower court’s ruling in favor of the California Teachers Association would stand and that public employees in 25 states would continue to be forced to pay for political causes regardless of whether or not they agree with those causes. As labor union advocates are quick to point out, that is not to imply that in those 25 states, public employees cannot opt-out of union membership—they can, but there is much more to the story than simply the ability to opt-out of full union membership.
Rebecca Friedrichs, a public school teacher in California, was the lead plaintiff in Friedrichs v. California Teachers Association. She and her co-plaintiffs courageously brought a lawsuit against the California Teachers Association when, even as a non-member of the teachers union, they were forced to pay so-called “agency fees” to the teachers union. These “agency fees” only go toward collective bargaining negotiations which were, per a previous Supreme Court ruling, held to be “non-political.” Moreover, she was forced to accept the terms negotiated on her behalf by the teachers union of which she was not a member but for which she was still forced to pay.
However, the terms negotiated in collective bargaining discussions included highly political topics, such as last-in first-out (LIFO) policies, policies regarding class sizes, and prohibitions on merit pay for teachers. Pointing out that these terms of collective bargaining were obviously political in nature and challenging her forced payment to advance these political causes with which she and her co-plaintiffs disagreed became the basis for their lawsuit.
Despite its ultimate legal loss, the lawsuit and the ensuing Supreme Court case were catalysts for a national discussion on what kinds of choices public employees do or do not have when they are forced to participate in these “monopoly bargaining” schemes where the union decides the terms for every public employee, whether or not the employee agrees. In states that have adopted a Right-to-Work law, employees are protected from being fired on the basis of whether or not they decide to join a union and the employee cannot be compelled to pay any fees to the union. In states without a Right-to-Work law, public employees can opt-out of full union membership, but must still pay the “agency fee” toward the union’s collective bargaining negotiations. In these states, the “agency fee” can be as high as 77 percent of the full union membership cost. In any case, public employees are still forced to accept the terms that the union negotiates on their behalf and the unions are forced to represent non-members (even the non-paying non-members in the case of Right-to-Work states).
This bureaucratic handcuffing reduces the choices of both the public employees who might rather negotiate their own contracts with their employers and the public employee unions who might rather not represent non-members. Fortunately, there is a solution: Employee Choice. Unlike private sector labor laws, which are governed largely by the depression era National Labor Relations Act (NLRA), public sector labor agreements are almost exclusively under the jurisdiction of state government. This means that state lawmakers have the authority to free public employees from the obligation to accept the terms of collective bargaining negotiations and free the public employee unions from the obligation of representing employees in collective bargaining negotiations who do not want their representation and may not be paying for it.
There remain many problems with the labor laws around the country that force employees or unions into arrangements they do not like and in the 25 states that have not yet passed a Right-to-Work law, public employees will continue to be forced to pay for political causes with which they may disagree. Employee Choice will not solve every problem, but by embracing common sense, state lawmakers across the country have the opportunity to improve the lives of public employees and the options for public employee unions by introducing something that is now severely lacking: Choice.
Ben Wilterdink is policy director of the Task Force on Commerce, Insurance and Economic Development at the American Legislative Exchange Council. Learn more at www.alec.org.