Supreme Court makes fair share moot point

I’m a history teacher. I enjoy it.

I’m also a member of the National Education Association. This I don’t especially enjoy. Many years ago, when our principal was out of the building, a student was secretly taping classes and conversations. The principal sent word that I should collect her recording device. I explained the situation to her, she gave me the device, and I told her she could retrieve it in the office at the end of the day. A few hours later, the police appeared at my classroom door to investigate her mother’s charge that I’d “stolen” the recorder. That day I reluctantly decided to join the NEA. I’ve been paying dues ever since.

In addition to my dues and the dues of other teachers who voluntarily enroll, public sector unions, including teachers associations and government employees unions, successfully lobbied in many local and state jurisdictions for the power to collect “agency fees” from nonmembers. These euphemistically titled “fair share” laws were upheld by the Supreme Court in 1977.

The unions’ proffered justification is that nonmembers benefit from the contract negotiated by the union. The law allows public sector unions to assess nonmembers for bargaining costs but prohibits charging them for political activities, so agency fees average 78 percent of full membership dues.

This purportedly fair arrangement initially makes some sense. However, it’s less fair than it appears.

If you enter a restaurant and choose to buy lunch, the owner has the right to charge you for lunch, and you’d expect to pay for it. If you choose not to buy lunch, you’d rightly expect that you wouldn’t have to pay for it. That’s because you have a choice.

In the case of contract negotiations, teachers don’t have a choice. I’m not allowed to negotiate my own contract, because, long ago, the union lobbied for and won the statutory sole right to negotiate for me.

Having taken from me the right to negotiate my own contract, the union now wants to charge me for something I never wanted it to do. This is like having a customer decline to order a sandwich, allowing the proprietor to cram most of it down her throat, and then making her pay for 78 percent of it.

Do you like that picture? If each teacher were granted the choice of either participating in the union’s negotiated contract and accepting union representation in disputes, or negotiating a nonunion contract with his school board and representing himself, then I would defend the union’s right to charge participating teachers an agency fee. However, if you don’t allow me to decide whether I want you to act as my agent, you don’t have the right to force me to pay you a fee. Compelling me to pay that fee is indefensible.

The whys and wherefores of what constitutes a public employee’s “fair share” became moot last week when the U.S. Supreme Court reversed its earlier decision and ruled agency fees a violation of the First Amendment.

The case at issue concerned an Illinois state employee who argued that he should not be forced to pay fees since he did not support the union’s positions on various issues. A majority of the justices agreed that charging nonmembers a compulsory fee improperly “compelled them to subsidize private speech on matters of substantial public concern” and thereby breached nonmembers’ free speech rights. While the court’s earlier decision had already prohibited charging nonmembers for “political activities,” a majority of the justices have now concluded that assessing fees based on distinguishing “between a union’s political spending and other activities” is “untenable and unworkable.”

I understand the dissenting minority’s reluctance to overturn a longstanding precedent. I also understand the perspective that without agency fees, nonmembers “reap the benefits” of union bargaining and representation without helping to “cover the costs.”

That said, I concur with the court’s ruling as it applies to workers who opt not to join a union. I’ve long opposed charging any fee to my nonmember teacher colleagues.

I recognize the financial hardship that the loss of nonmembers’ fees imposes on labor unions. I just don’t find that practical consideration germane. I also have no patience with partisans who inject politics into legal and constitutional issues. President Trump’s celebratory tweet that the court’s decision represents “a big loss for the coffers of the Democrats” is exactly the kind of narrow political consideration that shouldn’t taint judicial decisions.

I am concerned, however, that regardless of its legal merit, the decision coincides with a growing societal hostility toward unions. I find it ironic that the same conservative economics theorists who champion the unfettered marketplace that produces large business combinations called corporations simultaneously object when individual workers combine to form unions in order to engage effectively in the same marketplace.

I believe in limited government, and I’m far from a labor organizer. It’s important to remember, though, that modern American labor unions were born in the late 19th century when Gilded-Age big businesses increasingly dwarfed the scale of individual workers. Unions and more active progressive government were both intended to address the burgeoning disparity in wealth and power between American society’s titans and ordinary people like you and me.

Those disparities are widening again.

Unions at their best still promote fairness for workers. That same fairness, though, demands that we not compel workers to join them against their will.