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by Michael Mulgrew | December 3, 2015 New York Teacher issue
The U.S. labor movement today faces perhaps the gravest threat to its existence since the creation of our modern system of labor law and collective bargaining in 1935.
In Friedrichs v. California Teachers Association, now before the U.S. Supreme Court, the plaintiffs challenge the “fair share” requirement that public-sector workers in unionized jobs who choose not to join their union must still pay their fair share of the cost of union representation and services.
They argue that agency fees should be abolished because money is speech, and requiring nonmembers to pay fees to unions therefore violates their First Amendment rights. That is patently false. Agency-fee payers can choose not to have their fees spent on unions’ political activities.
Let us be clear: Friedrichs isn’t about the First Amendment; it is about undermining this country’s labor unions because we are the last great defenders of working people and the middle class. The far-right forces behind the lawsuit despise unions because it is our collective voice and collective action that prevent them from further enriching themselves at ordinary Americans’ expense. They don’t just want to abolish agency fees; they want to abolish our unions and undo the decades of progress we have made.
Agency fees have been part of the U.S. system of labor relations since President Franklin D. Roosevelt, at the height of the Great Depression, signed the National Labor Relations Act to level the playing field between workers and their employers. In addition to codifying private-sector unions’ right to bargain collectively, the law also allowed unions in the private sector to collect agency fees from all workers covered by a collective-bargaining agreement — even workers who had chosen not to join the union.
It wasn’t a complete victory. The later Taft-Hartley Act allowed states to pass so-called “right-to-work” laws that prohibit unions within those states from collecting fees from nonmembers. In addition, public-sector workers like teachers were excluded. Instead, whether public-sector workers would have the right to bargain collectively was left to the states to decide and, shamefully, there are to this day some states in which public-sector workers do not have that fundamental right.
But, in most states, public-sector workers fought for and won the right to bargain collectively — our founders’ strike in 1960, which we celebrate at Teacher Union Day, was an important part of that fight. In 1977, in the landmark Abood decision, the U.S. Supreme Court ruled that states could extend to public-sector unions the ability to collect fees from nonmembers covered by a collective bargaining agreement.
The logic behind these “agency fees” is simple: If you benefit from the contract and all the rights and protections it provides — salary, hours, grievances and so much more — you should have to pay your fair share toward the cost of negotiating and enforcing it, whether or not you join the union. Unions have a legal obligation to represent all workers covered under their collective-bargaining agreements. Shouldn’t all of those workers have an obligation to contribute for the services they receive?
No, say the plaintiffs in Friedrichs — 10 California teachers and the Christian Educators Association International, which coincidentally also supports school voucher programs and the teaching of creationism and is virulently opposed to LGBT rights. But they aren’t the real force behind the case. It is really the Center for Individual Rights, the Koch brothers-backed law firm representing them, that is running the show.
Nor is Friedrichs an isolated lawsuit. On the contrary, it is part of a concerted multi-year campaign by the anti-union right to bring lawsuits to the U.S. Supreme Court that have slowly chipped away at the rights of public-sector unions and the workers they represent.
Friedrichs is the culmination of this strategy and was in effect invited by Justice Samuel Alito, one of the Court’s arch conservatives, who indicated in majority opinions he wrote in anti-union suits in 2012 and 2014 that the conservative justices were prepared to reconsider public-sector unions’ right to collect agency fees. The Friedrichs plaintiffs, aware that they would have a friendly hearing from Alito and the other conservatives, asked lower courts to rule against them so as to move their case more quickly to the U.S. Supreme Court.
The right-wingers behind Friedrichs have targeted the public-sector unions because we are the bulk of what remains of the labor movement and because we defend the public services they so desperately want to privatize and monetize. A U.S. Supreme Court decision in their favor could financially devastate many public-sector unions, allowing them to achieve this goal in a single stroke.
What happens next in the case is unclear. The Court is starkly divided over the question of agency fees. But the American Federation of Teachers, the UFT’s national affiliate, has joined with other national unions to file friend-of-the-court briefs to try to influence the outcome.
Various legislators and a coalition of state attorneys general led by New York State Attorney General Eric Schneiderman have also joined the fight.
What is clear is what unions must do to prepare for an unfavorable decision: organize.
That’s why the AFT has joined with the National Education Association, the Service Employees International Union and the American Federation of State, County and Municipal Employees, among others, to launch a new anti-Friedrichs coalition, America Works Together. I encourage you to visit the coalition website, learn more about the case and talk with your colleagues about it and about why our union is so important.
The right wants to dismantle decades of labor law — laws that protect working Americans’ right to organize unions — and to overturn decades of collective bargaining and progress for working Americans. They want to destroy our unions and the middle class so that they can enrich themselves. But we fought too hard and sacrificed too much to win what we have today — and we will not sit idly by while it is taken from us. If the Koch brothers and their ilk want a fight, we’ll give them one.