Supreme Court case threatens union members

Ira Fader
General Counsel
January 13, 2016

If you are reading this and are a member of the MTA, you may be aware of — and I hope you are impressed by — the scope of the MTA’s activities, influence, and benefits. There are approximately 110,000 of you. And that makes it possible for us to provide collective bargaining assistance to 400 or so local affiliates, offer expansive legal services to all affiliates and members at no cost beyond dues, provide expertise in educational policy and practice, offer free retirement advice and assistance, employ in-house lobbyists and communications experts, offer workshops and organizing training, and provide a host of membership discounts and benefits. Spend one day at the new MTA headquarters in Quincy and you will never ask, “What does the MTA do for me?” Seriously.

This is the power of collective action. And the enemies of strong public-sector unions don’t like it and never have. The most pressing example of the well-financed ideological effort to undermine teachers’ unions — and all public-sector unions – is the Friedrichs case argued on Jan. 11 before the U.S. Supreme Court. (Go here for more info.)

Friedrichs involves several teachers in California public schools who not only refused to join the union but went a step further and refused to pay their “agency service fee,” also referred to as a “fair share fee.”

That fee is something that a majority of their colleagues and employers agreed to put into their collective bargaining agreements. Why? Because it ensures that those who object to unions don’t get a “free ride” by getting all the benefits of unionism with none of the costs.

The objectors’ First Amendment right to not “associate” with a union is protected. They do not have to join. And their “agency fee” fee is lower than union dues because it excludes the cost of political activity by a union. Even so, we still have a duty to fully and fairly represent the very people who don’t want to associate with us — but who also don’t mind getting the higher salaries and benefits we negotiate and enforce for everyone.

The right to collect a fee from anti-union objectors has been deeply embedded in the law for decades. It was affirmed by an earlier Supreme Court and repeatedly upheld and cited. But our current court includes at least three members (Justices Scalia, Alito and Thomas) who are among the most right-wing judges in modern court history and two others not far from them on the political spectrum (Justices Roberts and Kennedy).

If these five judges engage in the kind of judicial activism that, as conservatives, they supposedly oppose, they could cause immense harm to unions across the country and create a new imbalance of power in the workplace. And it’s funny how this is coming up right at the height of an election year when many unions are engaged in costly “get out the vote” activities for union-friendly candidates. That election will likely determine the balance on the Supreme Court for years to come.

This decision is not just about teachers and our local affiliates. Whatever the court decides will apply to all public-sector unions in all 50 states. Keep your eye on this. Educate yourself. Talk to colleagues. Encourage everyone to join the union. Let’s stay powerful — despite what those hostile to your interests want for you. As Ben Franklin famously said, “We must all hang together, or assuredly we will hang separately.” Solidarity matters.

Ira Fader is the general counsel of the MTA.