Mackinac Center Files Brief with U.S. Supreme Court to End Union Agency Fees

The Mackinac Center for Public Policy has submitted an amicus brief to the U.S. Supreme Court in a case that could extend virtual “right-to-work” status to government employees in every state. Under such a ruling, those workers would no longer be required to pay union dues or fees as a condition of employment.

The case is Friedrichs v. California Teachers Association, brought by teachers in a forced unionism state who object to so-called “agency fees” that workers must pay to the union even if they elect not to be a “member.” First, however, the justices must decide whether to place the case on their docket for the next term.

“We hope the court will hear this case and decide that agency fees are unconstitutional for all public employees,” said the brief’s counsel of record, Patrick Wright, the director of the Mackinac Center Legal Foundation.

Federal law requires unions to represent all workers in a union-organized workplace, members and non-members alike, and the agency fees are supposed to include just the cost of that representation and no other union activities. Unions claim it is not unreasonable to ask workers to pay for these services. The Supreme Court upheld agency fees in a 1977 case, Abood v. Detroit Board of Education.

The percentage of full dues that agency fees represents varies from union to union. And in practice, those fees go to union activities beyond just directly representing members – like rallies and attempts to persuade workers to vote a certain way.

Wright says the issue resurfaced last year when the Supreme Court ruled in Harris v. Quinn that agency fees could not be charged to home-based health care workers. But the Court did not address the question of whether agency fees are proper for employees in actual government workplaces and units.

In her dissent in Harris v. Quinn, Justice Elena Kagan argued that broad elimination of agency fees would hamper individual states as they seek to determine how best to manage government workforces. Some states may decide it is in the public interest to grant collective bargaining privileges to government employee unions, and if workers are not required to pay agency fees, their refusal could leave public sector unions with insufficient resources to participate in the bargaining process.

(Federal labor law does not apply to state and local government employers, leaving it up to individual legislatures to decide whether to grant government employee unions collective bargaining privileges.)

In its brief to the Supreme Court in the Friedrichs case, the Mackinac Center seeks to demonstrate that unions can weather the elimination of agency fees. The brief uses data to show that union membership did not drop precipitously after Michigan’s right-to-work law went into effect two years ago. It also includes comments from union leaders themselves suggesting there was no exodus of dues-paying members.

One of these comments came from Michigan Education Association spokesperson Doug Pratt. A state Senate committee member asked him if the union wished to be relieved of the burden of “exclusive representation” and the possibility of “free-riders,” or people who could still receive union representation without paying either dues or agency fees.

After a pause, Pratt said “no.”

Under exclusive representation, employees in a union-organized workplace who choose not to be union members are still subject to the rules and conditions set forth in a collective bargaining agreement.

Wright argues that such comments are proof that even the unions don’t regard “free-loading” as a threat to their existence.

Specifically, the Mackinac Center’s brief asks the Court to hear Friedrichs and overturn Abood.

Friedrichs could give the Court the opportunity to clarify its thinking on exclusive representation once and for all, says Wright.

“Friedrichs has a chance to be a monumental decision,” Wright said. “Our experience with right-to-work here in Michigan gave us expertise that we have provided to the Court, and we hope it ends the practice of compelling individuals to contribute to a union they may want nothing to do with.”

The Mackinac Center has created a website showing the union membership data it used in its argument. Readers can also find a copy of the brief here and a copy of tables with supporting data here.

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Unionization Case Before the Supreme Court Could Have Lasting National Impact

Harris v. Quinn