Compelled fees and the Friedrichs challenge
Rebecca Friedrichs, a teacher, described her relationship to her union’s collective bargaining as one of compelled funding without representation. She said the union’s core values were in direct opposition to her own and to those of many forced members, and that those values shaped every political decision and bargaining stance the union took, so that her fees promoted the union’s political agenda whether they went to politics or to bargaining A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017). She described herself as a “fee payer” rather than a dues payer, paying roughly 70% of dues, which in her case ran around $650 to $700 a year, while receiving no vote in collective bargaining and no ability to serve in leadership. She said fee payers are stripped of the rights of membership even as their money is taken.
Bob Zadek pressed the democratic objection: a union is a collection of members, and its policy is formed democratically, so a member gets a say albeit one vote, just as a citizen does in government. Friedrichs answered that she was never given a vote on whether she wanted the union at all, because in her case it was voted in when she was a small child, and that the union claims to speak for all teachers but in reality speaks for itself. She attributed this to the automatic dues-paying system.
Friedrichs also connected bargaining to tenure and discipline. She said the union fought for a tenure law and then used collectively bargained grievance procedures, which she called a one-two punch, to make it almost impossible for administrators to act on underperforming or abusive teachers. She said she had seen abusive teachers who were not fired because administrators who tried to discipline them ran into union-engineered grievance procedures, and that the unions had tied the hands of taxpayers, administrators and everyone else. She called this the basis of her belief that she should not have to fund collective bargaining stances against her own moral code.
The fair-share defense
Jonathan Tasini offered the opposing account of the same fees. He said that behind cases like Friedrichs there was a well-funded campaign by anti-union donors, including the Scaife Foundation, aimed at destroying the labor movement rather than at questions of fairness or free speech, and he cited a study by the Economic Policy Institute on who was behind the series of cases The Two Faces of Janus v. AFSCME (2018).
On the law, Tasini said unions are required to provide what is known as Duty of Fair Representation, and that Duty of Fair Representation cases are among the largest categories of cases for union-side labor lawyers. He described such a case as a member, or a non-member who has paid an agency fee, suing because a grievance was not handled well, and noted that anyone under the union contract can bring such a case. From this he drew the fair-share conclusion: unions must represent everybody whether or not they are members, that costs money, and in America there is a belief that you do not get something for free. He said the approach goes back 40 years to Abood, which he described as long-standing precedent holding that in the public sector you have every right not to belong to a union but must pay a fee for the service that brings you the benefit of collective bargaining, an approach he called the fairest and a reasonable and logical one.
Public and private bargaining compared
Philip K. Howard argued that public-sector collective bargaining differs from private-sector bargaining in kind. He said public employee unions’ bargaining power came in only in the late 1960s, not in response to any scandal or abuse but swept in with the rights revolution because union leaders wanted more power, whereas private unions originated in the Progressive Era in response to factories abusing child labor, endless work hours and horrible safety records Government by the Unions, of the Unions, for the Unions (2023). He said there was never any need for public employee unions and called the difference that between a fish and a mammal.
Howard gave four differences. First, incentives: in a trade union both sides have a vested interest in the viability of the enterprise, because inefficient work rules or excessive demands can move the company out of town or put it out of business, whereas public unions can demand anything because the government cannot move. Second, in the private context the argument is only about the split between capital and labor, while in the public context officials are not paying and taxpayers are, so unions can demand anything they can get away with. Third, an ethical difference: he cited FDR’s statement that the process of collective bargaining cannot be transferred to the public sector, because public employees have a sworn duty of loyalty to serve the public rather than to negotiate against the public interest with inefficient work rules. Fourth, and most importantly, he said trade union negotiations are an honest adversarial process in which collusion between management and labor would be unlawful, while public union negotiations are nothing but collusion: unions amass power, get people elected, staff campaigns and send people in buses to knock on doors, and then the elected official comes to the bargaining table and sits on the same side of the table. Howard called it not a negotiation but a payoff.
Zadek added that collusion here carries no criminality: neither party breaks any law, and the system simply works that way. Howard agreed it would be illegal in the private sector but is not illegal in the public sector, though he called it dishonest and not a good idea.
Merit systems, work rules and accountability
Asked how much of the problem is attributable to collective bargaining and whether a civil service system without it would satisfy him, Howard said civil service in general is a good idea and was supposed to be a merit system. He said civil service was not a process of tenure or lifetime employment but of neutral hiring, designed to prevent the spoils system in which jobs went to people who gave money to politicians. A hundred and something years later, he said, public employees are the spoils system again, except permanent: nobody ever loses a job no matter how lousy they are or who is in power, because of total union control. He said a merit system that protects against arbitrary firings by having someone else judge whether a principal was unfair would be fine, but it must honor human judgment and responsibility rather than being rigid legal armor. He concluded that you do have to get rid of collective bargaining, which puts unions first in line for benefits ahead of the public, and he attributed bankrupt states like California, lousy schools, toxic police cultures and transit systems costing three times what they ought to cost to absurd work rules serving no legitimate purpose other than wasting money.
Zadek framed the rules as designed to be inefficient, and criticized the phrase “public service” as marketing, saying the unions are union service organizations because that is who they serve. He argued that due process is a concept dealing mostly with governmental behavior in a criminal context, and that applying the First Amendment to employment relationships is a misuse, offering the example that Susan Sarandon is not deprived of free speech if people do not attend her movies. He said a civil service system with rules protecting workers from arbitrary treatment by political bosses makes eminent sense, but that the system now deals with work rules governing the quality of life of workers, and that is where accountability is lost.
Howard agreed that every successful organization requires everyone to believe everyone will be accountable, and that trust disappears if you can keep your job by sleeping all day long. He said there are stories of teachers who sleep during class and cannot lose their jobs, and described a hearing Steve Brill watched in which a teacher who never graded papers defended herself on the ground that the city could not produce writing instructing her to grade papers. He called that sophistry, and said the same stacking of the deck occurs in police departments: an officer cannot be interviewed for a certain number of days and cannot be interviewed until he has seen every other witness statement so he can tailor his testimony, and the arbitrators who decide are picked by the police union. He said work rules are designed for featherbedding, giving the example of a transit crew that cannot remove a broken or hanging branch because it is not in their job description, so a whole new crew must come, and the example of subway car cleaning during COVID, when workers were short, the work was subcontracted out, and the private contractor did three times as much work for the dollar.
Across episodes: what changed
The topic is treated in three episodes, and the treatment shifts with the speaker rather than developing across time. In 2017 Rebecca Friedrichs and Terry Pell present collective bargaining from the inside, as a teacher’s objection to compelled fees and grievance procedures; in 2018 Jonathan Tasini presents it from the union side, as a service for which non-members may fairly be charged under Abood and the duty of fair representation; in 2023 Philip K. Howard presents it structurally, as a category distinct from private-sector bargaining because government cannot move and officials bargain on the same side as the unions. The later episode does not answer the earlier ones; it changes the unit of analysis from the individual fee payer to the design of public employment itself.
What the sources do not cover
The excerpts do not state the holding or disposition of Friedrichs v. CTA, nor which amendment the challenge turned on, beyond the topic list’s reference to the First Amendment. They do not give the outcome of Janus v. AFSCME, the text or name of any statute, or the date Abood was decided beyond Tasini’s “40 years.” They do not describe how agency fees are set or audited, and they do not present any union-side response to Howard’s account of work rules.