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Northwest OH Legal Blog

Wednesday, October 7, 2015

Fair Share Fees

On June 30, 2015 the Supreme Court announced that it will review the decision in Friedrichs v. California Teachers Association, a Ninth Circuit Case challenging the constitutionality of charging public sector workers a “fair share fee” when they have opted out of union membership.

When a union is elected as a certified representative for a bargaining unit, they must represent all workers that fall within that classification regardless of their union status.  This means that the rights and benefits afforded under the union contract are received by all members of the bargaining unit, not just the union members.  It also means that if a non-union member in the bargaining unit faces discipline the union has a duty to represent that individual.  Since non-union members do not have to pay union dues, this creates the problem of the “free rider.”  A free rider is someone that receives the benefits of union membership (wages, representation, etc.), but does not pay for it.

To eliminate the free-rider problem unions charge non-union bargaining unit members a fair share fee.  This fee is calculated as the portion of union dues that the union expends on administering the contract.  The fee does not include the portion of dues that Unions spend on political activity or other non-representation matters.  This practice by public sector unions, adopted from the private sector, was upheld as constitutional in Abood v. Detroit Board of Education, in 1977.  The plaintiffs in Friedrichs object to paying the fair share fee as a violation of their first amendment rights and assert that Aboud was decided wrongly.

Friedrichs follows on a case heard last year, Harris v. Quinn, where the Supreme Court ruled that Chicago home health care providers could that did not want to join a union did not have to pay a fair share fee.  Although decided on different grounds, Justice Alito, in his majority opinion, questioned the constitutional foundation that the legality of fair share fees had been based on.  Now, with Friedrichs, Alito will have the chance to rule on that very subject.

The importance of Union fair share fees cannot be understated.  Without it, the free-rider problem can cripple or even bankrupt a union.  For instance, when Indiana eliminated the fair share fee from state law, public sector unions lost 91% of its membership.  Likewise, when Wisconsin eliminated the fair share fee AFSCME lost over 50% of its membership.  This loss of income used to administer the contract weakens the Unions ability to participate in negotiations, enforce contract provisions, and defend workers that have been wrongfully disciplined by their employers.

Friedrichs represents yet another attack on Unions by the far right.   Rather than work with the unions and ensure that all workers receive basic protections and rights, these people have chosen to try and “kill the unions.”   In the face of this solidarity among union workers, union rights activist and pro-union politicians is imperative.

Although we hope that Supreme Court makes the right decision and upholds the right to collect a fair share fee, the attorneys at Allotta | Farley will be prepared to implement effective strategies to maintain union membership numbers if the right-wing judges on the Court have their way.  Pay attention to this space for more news on Friedrichs as it develops.  Allotta | Farley is here to aid non-union and union employees alike in employment matters.  If you have questions about your rights or are facing adverse employment action, please do not hesitate to contact us.


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With offices in Toledo and Lima, OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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