Unions Prep for Life After ‘Fair Share’ Fees

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Chris Opfer

Public worker advocates are already sharpening their lobbying tools in anticipation of the day when unions may no longer be able to charge “fair share” fees to nonmembers.

“People are starting to think about what happens if there’s a new Friedrichs decision and it goes the wrong way,” Barry Broad, a California lawyer who lobbies for the Teamsters and other unions, told Bloomberg BNA. “That’s definitely something that a lot of unions are looking at.”

The U.S. Supreme Court’s deadlocked 4-4 decision last year in Friedrichs v. California Teachers Association left in place a ruling that allowed the teacher’s union to charge administrative fees to nonmembers covered by the collective bargaining agreement the organization negotiated. Now that President Donald Trump’s appointee Neil Gorsuch has joined the high court, an advocacy group is expected to ask the justices to revisit the issue in a similar lawsuit out of Illinois.

A ban on fair share fees would be a significant financial blow for public sector unions. Those organizations have seen their membership numbers hold steady at a little more than one-third (35 percent) of the government workforce as private sector unionization (11 percent) continues to decline.

Unions are looking to shore up their foothold in the public sector by lobbying for changes to state laws. That includes in California, where labor groups are considering whether to push to allow nonmembers to seek private representation in grievances and to require government employers to pick up some of the tab for bargaining costs.

Labor groups in California also want to update state law to require public employers to allow unions to hold orientation sessions with new employees on the work site and during work hours.

“There’s a big emphasis on recruiting and getting our message out to bargaining unit employees,” Joseph Jelincic, a negotiator for the California State University Employees Union, told Bloomberg BNA.

Preparing for the Worst

Fair share fee critics often argue that forced payments to unions violate workers’ free speech rights. Groups like the National Right to Work Legal Defense Foundation argue that workers are forced to financially support the union even if they disagree with the organization’s stance on collective bargaining and politics.

That’s the question that the Supreme Court will be faced with if it eventually decides to review the U.S. Court of Appeals for the Seventh Circuit’s decision in Janus v. State, County, and Municipal Employees, Council 31. The NRWLD sued in that case on behalf of two Illinois government workers resisting fees imposed by their local union.

“Unions need to make their services attractive to their members,” Patrick Semmens, the foundation’s vice president, told Bloomberg BNA. “There’s no other private organization that gets to charge people money for services that they don’t ask for.”

The Seventh Circuit in the Janus case relied on a four-decade-old Supreme Court decision in which the justices said the fees are constitutional. Although many worker advocates are concerned that Gorsuch’s addition to the court makes the reversal of that decision likely, they also said that outcome isn’t set in stone.

“It’s something that I think most public sectors are preparing for, the worst case scenario,” Jelincic told Bloomberg BNA.

Duty in Details

The problem for public sector unions is that they find themselves stuck between a rock and a hard place: Even if they can’t collect administrative fees from nonmembers in a bargaining unit, many are still obligated under state law to represent those workers.

That’s why some advocates want the duty of fair representation tweaked in the event that fair share fees are sent to the scrap heap. Specifically, Broad said there’s talk of making a push in California to allow nonmembers in disputes covered under a bargaining agreement to choose whether to use a union representative—for a fee—or hire an attorney on their own.

“You can charge them the cost of the representation or they can go with their own representation,” Broad said. “They get the benefits of the contract, but you don’t have to represent them for free.”

A proposal to shift the cost of representation to public employers is a longer shot, at least in part because that cost would likely come out of taxpayer coffers. Even Broad says that model would be “really, really different” than the one currently in place for public sector unions in the U.S.

But it would also resolve the free speech issue, Broad said. “Because a public employer is not a person, it doesn’t have a First Amendment right to object to being charged.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.