Supreme Court Could Hear Second Legal Challenge to Forced Agency Fees Paid by Tens of Thousands of Adjunct Union Members

by Carolyn Phenicie

There also could be a path to revive the basic premise, but not the specific case, from last year’s teacher-union-dues case, Friedrichs v. California. Teacher Rebecca Friedrichs argued that forcing her to pay “fair share” fees to the local teachers union was a First Amendment violation. The court seemed poised to hand down a 5–4 decision in favor of Friedrichs and the other teachers, but Scalia died before the final ruling was issued. The so-called “fair share” fees are still being collected from thousands of adjunct faculty nationwide who choose not, for whatever reason, to join their union local, but who are compelled to pay dues nonetheless. For some adjunct faculty, the decision not to join their unions revolves around allegations of unequal representation, particularly in unified faculty union locals.

AdjunctNation first wrote about Friedrichs v. California in January of 2016. In that piece, P.D. Lesko pointed out that, “In truth, agency fees are imposed on tens of thousands of faculty nationwide, many of them adjuncts. A look at the AAUP’s 2014 LM-2 financial report filed with the U.S. Department of Labor shows that 11,106 of the group’s 49,444 members are agency fee payers. Only 4,637 of the AAUP’s total members are part-time faculty. In 2010, the AAUP had 48,694 members 4,103 of whom were part-time and 7,977 of whom were agency fee payers. What this shows is clear: the largest growth segment of membership for the AAUP between 2010 and 2014 did not come through the addition of either newly-organized full-time or part-time faculty, but rather through the addition of agency fee payers.”

Over at the blog “The Adjunct Crisis,” writer Geoff Johnson was of the opinion that Friedrichs v. California, had it been decided for the plaintiffs, would have hurt adjuncts. Johnson writes:

As for the claim that teachers unions often represent the specific interests of a few, there is some truth to this. Unions by and large represent its most active members, and particularly those who vote on the leadership, fill out negotiating surveys, come to meetings, participate in larger union activities, and vote on whether to ratify a contract or not. For the most part, because full-time employees usually work at one campus and are therefore more engaged with their on-site union than an adjunct teaching at multiple campuses and represented by multiple unions, they are more likely to have their interests and concerns heard by the one union they’re involved with. Ironically, on most, if not nearly all campuses where “wall-to-wall” unions exist, adjuncts represent the majority of members, but vote and participate in such small numbers that they do not effectively lead policy.

To address this problem, adjuncts simply need to vote and participate more, which takes needed time and energy, and will at times lead to frustration when others don’t see your way of thinking at first (welcome to being in a union).

The high court last summer denied the teachers’ motion for a rehearing, so any further consideration by the court will have to go through a separate case, explained Terry Pell, president of the Center for Individual Rights, the libertarian group that backed Friedrichs.

There is a case pending in the Seventh Circuit, Janus v. AFSCME, in which three Illinois state employees argue they shouldn’t have to pay “fair share” union dues. Whether it’s that case or another, most of the jurists President Trump has proposed would at least be open to the arguments against mandatory dues, Pell said. The Center for Individual Rights isn’t supporting the Janus case, nor any others concerning the First Amendment and union dues at the moment.

There are “good odds” of a 5–4 decision to overturn mandatory-dues law within the next one to two years, he said.

There are strong reasons to believe that the teachers who brought the Friedrichs case — and therefore the Illinois state workers represented by the Liberty Justice Center — will prevail. In June 2014, the Supreme Court ruled in Harris v. Quinn that Illinois violated the First Amendment rights of home health workers when it forced them to pay union fees as a condition of receiving state subsidies. In that decision, the court wrote that a 1977 decision that allowed states to make employees pay union fees, Abood v. Detroit Board of Education, was “questionable,” suggesting the court may be ready to overturn that decision and declare that forcing government workers to pay union fees is unconstitutional.

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