Is the Friedrichs case an “existential threat” to the teachers' unions?

Michael J. Petrilli Dara Zeehandelaar Shaw, Ph.D.

7.8.2015

As you’ve probably heard by now, the Supreme Court has agreed to hear the Friedrichs vs. California case next year, giving it a chance to strike down union “agency fees” as unconstitutional abridgements of teachers’ First Amendment rights. (Read up on the case with some great posts from Joshua Dunn, Mike Antonucci, Stephen Sawchuk, and Andy Rotherham.)

In a nutshell, teachers already have the right not to join their local unions, even in non-“right-to-work” states like California and New York. But in such states, even if teachers are not union members (and therefore do not pay union dues), the local union can automatically deduct “agency fees” from their paychecks. The fees, which are often substantial, are supposed to support non-political activities, including the costs of collective bargaining. The unions levy these fees to avoid the free-rider problem; without them, teachers could get all sorts of benefits from the unions without paying for them.

Legally, agency fees from public employee unions cannot be used to financially support “matters of public concern” (a.k.a. political activities) because non-members can’t be coerced to support political speech with which they disagree. The fees can only be used for “representational activities” such as collective bargaining, arbitration of labor disputes, professional development, overhead costs, and the salaries of union administrators. Rebecca Friedrichs, a twenty-seven-year teacher, and the other plaintiffs argue that in the public sector, even representational activities are inherently political. Bargaining with elected officials (including elected school boards) is tantamount to lobbying them, they claim. Many commentators think the court’s five conservative justices will agree.

So if the court strikes down agency fees for public sector unions—effectively making every state a right-to-work state—will that spell the end of the unions and their political influence? We can make an educated guess by examining union strength in the twenty-five right-to-work states that already forbid agency fees. Thankfully, Fordham published a massive study in 2012 on union strength across the country that allows us to do exactly that.

To gauge union strength at the state level, we gathered and synthesized data for thirty-seven different variables across five broad areas:

Resources and membership, which examined internal union resources (members and revenue) and K–12 education spending in the state, including the portion of such spending devoted to teacher salaries and benefits
Involvement in politics, which considered unions’ share of financial contributions to state candidates and political parties, as well as their representation at the Republican and Democratic National Conventions
Scope of bargaining, which looked at collective bargaining status (mandatory, permitted, or prohibited), scope of bargaining, and legality of teacher strikes
State policies, which considered the degree of alignment between teacher employment rules and charter school policies with traditional union interests
Perceived influence, which scored the results of an original survey of key stakeholders within each state, including how influential the unions are in comparison to other entities in the state, whether the positions of policymakers are aligned with those of teachers’ unions, and how effective the unions have been in stopping policies with which they disagree

Using these data, we ranked the relative strength of state-level teachers’ unions in the fifty states and Washington, D.C.

When we published the study, our measure of union strength included whether agency fees were legal or not as a part of the “scope-of-bargaining” area. We remove that variable from the calculation of strength below. Comparing strength to “right to work” status shows that union strength is clearly correlated with whether unions can collect agency fees. (All data are as of 2012.) Eighteen of the twenty strongest-union states allow the collection of agency fees; most of the twenty states where unions are weakest prohibit the practice, though there are a handful of exceptions (Washington, D.C., New Mexico, and Missouri, for example).

* Michigan and Wisconsin passed right-to-work laws in 2013 and 2015, respectively. These rankings were calculated in 2012.

Note: States in yellow prohibit the collection of agency fees.

It’s not hard to understand why agency fees are important; they allow unions to collect revenue from all teachers, not just union members, which can be used in turn to fund a variety of activities. However, it’s clear that unions in right-to-work states are still able to amass resources and exert authority using other channels of influence.

Alabama, for example, prohibits agency fees and is firmly in the anti-labor, socially conservative South, yet its union (as of 2012, at least) was the most politically active in the nation. Alabama had a high unionization rate, and therefore generated a significant amount of revenue per teacher through dues alone. Teachers’ unions in other right-to-work states, such as North Dakota, Nevada, Nebraska, and Iowa, have also managed to hold on to a significant degree of power.

So will a defeat in the Friedrichs case weaken teachers’ unions, especially in blue states like California, New York, New Jersey, Pennsylvania, and Illinois? No doubt. But don’t consign them to the ash heap of history quite yet. Expect unions nationwide to spend the next twelve months studying up on Alabama and similar states to learn how they too can hold on to power in a post-Friedrichs world.