Today, the U.S. Supreme Court heard oral arguments in the case of Friedrichs v. California Teachers Association. Friedrichs and the other petitioners in the case argue that the Supreme Court’s 40 year precedent upholding the constitutionality of agency fees – or fair share fees – should be overruled. The AAUP filed an amicus brief in Friedrichs, with the American Federation of Teachers, arguing that the Court should reaffirm that the payment of agency fees by nonmembers to support their fair share of the costs of collective bargaining is constitutional.

In 1977, in Abood v. Detroit Board of Education, the Supreme Court unanimously upheld the constitutionality of agency/fair share fees in the public sector workplace. These fees ensure that employees who are not union members, but who benefit from collective bargaining, pay their fair share of the costs. As Justice Elena Kagan explained in a 2014 case: “For some 40 years, Abood has struck a stable balance—consistent with this court’s general framework for assessing public employees’ First Amendment claims—between those employees’ rights and government entities’ interests in managing their workforces.” (Harris v. Quinn, dissent by Kagan, Ginsburg, Breyer, Sotomayor).

In today’s oral arguments in the Friedrichs case, it’s not surprising that the conservative Supreme Court Justices were highly critical of fair share fees, given their ideological positions. Justice Scalia, though, in an earlier decision had shown that he understood that fair share fees are necessary for the union to fulfill its legal duty to represent members and nonmembers alike. In Lehnert v. Ferris Faculty Association (1991), Scalia explained, “What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.” During the Friedrichs oral arguments, however, Scalia appeared hostile to agency fees, based on the view that all public sector collective bargaining is political. While oral arguments are often not a reliable predictor of the Court’s ultimate decision, Scalia may have signaled a willingness to be part of a majority to overrule Abood.

Overruling Abood would be the wrong decision. The Court should reaffirm Abood, upholding fair share fees in public sector collective bargaining. The balance struck in Abood takes into account multiple interests:

• Agency/fair share fee arrangements respect nonmembers’ First Amendment interests. Nonmembers are not required to join the union, but are required to pay their fair share of the costs of negotiating and administering the collective bargaining agreement that benefits all employees. But nonmembers are not compelled to pay for expenses related to union political activities.
• Upholding agency fees also takes into account the First Amendment interests of union members to have effective collective bargaining without carrying nonmembers as free riders.
• The Abood balance considers the benefits to state governments’ interests as employers in strong collective bargaining relationships that promote positive and stable workplace relationships. In addition to negotiating for higher wages, benefits, and job security, unions often work with employers to improve working conditions. For example, AAUP collective bargaining agreements include joint faculty-administration committees on issues such as environmental safety, paid parental leave policy, workload, and faculty professional development.

This balance of interests can be described in terms of democracy, fairness and common sense. Unions are democratically elected through a majority vote, which makes the union the exclusive collective bargaining representative for all the employees. The union has a corresponding legal duty to fairly represent the interests of all the employees. This means that union members and nonmembers alike receive the benefits the union gains in collective bargaining, including union representation in employee grievances, which may entail the costs of arbitration hearings. As noted by the AFT/AAUP joint amicus brief in the Supreme Court, Friedrichs and the other petitioners do not object to the exclusive representation system or the union’s duty to fairly represent all employees. Yet, the petitioners object to paying a penny of their fair share of the union’s expenses. As we stated in the amicus brief, Friedrichs and the other petitioners are seeking to “have their cake and eat it, too, maintaining the benefits of union representation without having to pay for it.”

It’s expected that the Supreme Court will issue its decision in Friedrichs by June 2016, at the latest. If the Supreme Court does overrule Abood, it’s likely that many union supporters will be reminding us of Joe Hill’s words: “Don’t waste time mourning, organize!” And they are right. If the Supreme Court upholds Abood, the advice to organize is still right. Strong organizing makes strong unions. In the face of adversity, workers can and do organize. They organize and build union membership in the face of state laws seeking to harm public sector unions and in the face of weak federal labor laws in the private sector. And unions will continue to organize and build strong membership whatever the Supreme Court decides in the Friedrichs case. As we look toward the national holiday honoring Dr. Martin Luther King, Jr., we should think of his reminder that “the arc of the moral universe is long, but it bends toward justice.” That’s what unionizing is about – and we can fight for justice with or without support from the courts.