The Supreme Court Case That Could Decimate American Public Sector Unionism

Moshe Z. Marvit

If the court chooses to hear the case, public sector unions could lose millions of dollars, untold thousands of members and a significant portion of their already diminished institutional power. (Mark Fischer / Flickr)

Last week, an appeal was sent to the U.S. Supreme Court for a case that could prove to be the most dam­ag­ing case to labor in decades. 

Friedrichs v. Cal­i­for­nia Teach­ers Asso­ci­a­tion aims to over­turn a near­ly 40-year prece­dent which allows the use of fair share” fees for pub­lic sec­tor unions, where­in all union mem­bers must pay for the costs asso­ci­at­ed with col­lec­tive bar­gain­ing and con­tract admin­is­tra­tion. Since all work­ers in union­ized work­places share the ben­e­fits of union­iza­tion — and since unions are legal­ly com­pelled to rep­re­sent all of those work­ers, which requires use of unions’ finan­cial resources — unions say that work­ers who choose not to become mem­bers of unions must at least pay these fees in order to not become free rid­ers,” gain­ing ben­e­fits from union rep­re­sen­ta­tion with­out pay­ing for them.

From its begin­nings, the case has been spe­cial­ly craft­ed for the Supreme Court, and if suc­cess­ful would affect tens of thou­sands of union con­tracts and would force mil­lions of pub­lic employ­ees into a right-to-work model.

Jus­tice Ali­to has been invit­ing a case like Friedrichs for sev­er­al years, and anti-union groups have been pay­ing atten­tion. In the 2012 Knox v. SEIU deci­sion, which changed the way in which pub­lic sec­tor unions assess option­al fees (those not asso­ci­at­ed with col­lec­tive bar­gain­ing, such as polit­i­cal and pub­lic rela­tions activ­i­ties and oth­er mat­ters not relat­ed to col­lec­tive bar­gain­ing) from an opt-out to an opt-in pro­ce­dure, Jus­tice Ali­to, writ­ing for the Court, said that accep­tance of the free-rid­er argu­ment as a jus­ti­fi­ca­tion for com­pelling non­mem­bers to pay a por­tion of union dues rep­re­sents some­thing of an anomaly.”

At the time, many under­stood this state­ment to indi­cate that the free-rid­er and labor peace argu­ments pro­pound­ed by pre­vi­ous Supreme Court deci­sions were no longer enough to con­vince the Court’s con­ser­v­a­tive major­i­ty of the jus­ti­fi­ca­tion for the allowance of fair share fees. Writ­ing about the case for the New York Times, Lin­da Green­house rec­og­nized that the issue in Knox seemed nar­row, even arcane”; how­ev­er, she explained, the deci­sion set the stage for a full frontal assault on labor using the First Amendment.

In case his mes­sage in Knox wasn’t clear, Ali­to left no room for mis­in­ter­pre­ta­tion in his Har­ris v. Quinn deci­sion last year.

In Har­ris, the Court held that home health­care work­ers were not full-fledged pub­lic employ­ees,” and there­fore the 1977 Abood case, which explic­it­ly per­mit­ted fair-share fees for pub­lic sec­tor work­ers, was inapplicable.

Ali­to could have stopped there, but instead he decid­ed to thor­ough­ly trash Abood and indi­cate that it is ripe for over­turn­ing. In para­graph after para­graph, Ali­to wrote that the Abood Court’s analy­sis is ques­tion­able,” seri­ous­ly erred,” fun­da­men­tal­ly mis­un­der­stood,” failed to appre­ci­ate,” does not seem to have antic­i­pat­ed,” did not fore­see the prac­ti­cal prob­lems,” and a crit­i­cal pil­lar of the Abood Court’s analy­sis rests on an unsup­port­ed empir­i­cal assumption.”

Ali­to was essen­tial­ly beg­ging for some­one to peti­tion the Court with a case that would allow the jus­tices to address the First Amend­ment issues involved in fair share agreements.

In April 2013, the right-wing Cen­ter for Indi­vid­ual Rights (CIR), whose mis­sion is to aggres­sive­ly lit­i­gate and pub­li­cize a hand­ful of care­ful­ly select­ed cas­es that advance the right of indi­vid­u­als to gov­ern them­selves accord­ing to the nat­ur­al exer­cise of their own rea­son,” filed such a suit on behalf of a hand­ful of Cal­i­for­nia teach­ers and a Chris­t­ian edu­ca­tor orga­ni­za­tion. The case then began its race to the Supreme Court.

In fed­er­al dis­trict court, the CIR took the unusu­al step of fil­ing a motion argu­ing that the court should rule in favor of the union. The group did this because they knew that the law is not on their side: Under cur­rent Supreme Court prece­dent, the CIR would lose in front of a Cal­i­for­nia judge, since the dis­trict court must fol­low the law. But CIR is bank­ing on the Supreme Court chang­ing the law. The Dis­trict Court oblig­ed them by rul­ing for the union, which allowed the CIR to quick­ly appeal the case to the Ninth Cir­cuit Court of Appeals. At the Ninth Cir­cuit, the CIR took the same tack, ask­ing the court to quick­ly rule in favor of the union so it could get the case before the Supreme Court.

This week, approx­i­mate­ly a year and a half after the com­plaint was first filed in dis­trict court, the CIR filed its peti­tion to the Supreme Court. Though the Court may decide not to accept Friedrichs if four jus­tices do not vote to hear it, this case looks like exact­ly the sort that Jus­tice Ali­to could use to final­ly ush­er in a nation­al pub­lic right-to-work law from the bench.

In its peti­tion to the Supreme Court, the CIR asks the Court to rule on two relat­ed First Amend­ment ques­tions: (1) whether the agency shop (a work­place that per­mits fair-share fees) should be ruled uncon­sti­tu­tion­al under the First Amend­ment, and (2) whether it vio­lates the First Amend­ment to require pub­lic employ­ees who don’t want to join their unions to opt out rather than requir­ing every­one to opt in.

The peti­tion then pro­ceed­ed to rehash the old argu­ment that all the bar­gain­ing issues for pub­lic sec­tor unions are inher­ent­ly polit­i­cal, and there­fore all such work­ers should be under a right-to-work mod­el. In essence, the CIR argues that any bar­gain­ing for increas­es in work­er pay or ben­e­fits, or nego­ti­a­tions over work con­di­tions, are inher­ent­ly ide­o­log­i­cal issues that not all work­ers may agree on, and such nego­ti­a­tions are iden­ti­cal to lobbying.

There­fore, because mon­ey is equiv­a­lent to speech in the Supreme Court’s view, work­ers who have to pay a fair-share fee are being com­pelled to lob­by the gov­ern­ment on an issue they may dis­agree with.

Seat­tle Uni­ver­si­ty School of Law Pro­fes­sor Char­lotte Gar­den told In These Times that although there are some super­fi­cial sim­i­lar­i­ties between lob­by­ing and pub­lic sec­tor col­lec­tive bar­gain­ing, there are crit­i­cal differences.

First — and most impor­tant to the Friedrichs case — unlike lob­by­ists, unions owe a duty of fair rep­re­sen­ta­tion to all of the work­ers they rep­re­sent, which means they (unlike lob­by­ists) have to spend mon­ey rep­re­sent­ing non-mem­bers,” Gar­den says.

Sec­ond, the scope of bar­gain­ing is cir­cum­scribed by gov­ern­ments them­selves — gov­ern­ments decide under what con­di­tions they will bar­gain with unions, and unions are con­strained by those restric­tions. So, for exam­ple, a gov­ern­ment might lim­it col­lec­tive bar­gain­ing to the sub­ject of wages, but of course gov­ern­ment can’t lim­it the scope of what lob­by­ists can ask for.”

There is noth­ing new in the CIR’s argu­ment, but it may suc­ceed now because the Court’s views on the First Amend­ment and labor have changed dra­mat­i­cal­ly over the years. 

The Roberts Court has used the First Amend­ment in a man­ner that sig­nif­i­cant­ly advances cor­po­rate inter­ests — from strik­ing down cam­paign finance lim­its in Cit­i­zens Unit­ed and relat­ed cas­es to strik­ing down laws that lim­it phar­ma­ceu­ti­cal com­pa­nies’ sale of doc­tors’ drug pre­scrip­tion data because they infringe upon cor­po­rate speech — and the Court’s deci­sions in Knox and Har­ris indi­cate that core union prac­tices vio­late the First Amendment.

If the Supreme Court accepts this case, the deci­sion could have enor­mous impacts on pub­lic sec­tor work­ers by either allow­ing agency fees to remain but requir­ing all work­ers to opt in, or elim­i­nat­ing fair-share fees all togeth­er. That the agency fee in its cur­rent form could remain is pos­si­ble, but unlike­ly — oth­er­wise, the court would not have agreed to hear the case.

Pro­fes­sor Gar­den says that even the more lim­it­ed opt-in rul­ing by the Court, which would require unions to obtain affir­ma­tive con­sent from non-mem­ber work­ers who are cov­ered by the con­tract before charg­ing them the option­al por­tion of dues, could rep­re­sent a sig­nif­i­cant drain on union resources. This would mean that unions would have to go out and solic­it work­ers to opt in — spend­ing more orga­niz­ing dol­lars on work­ers who are already cov­ered by a union contract.”

If, on the oth­er hand, the Court uses the First Amend­ment to declare all fair-share fees uncon­sti­tu­tion­al, it could rep­re­sent the most rad­i­cal shift in labor law in decades. Pub­lic sec­tor unions, which rep­re­sent one of the last bas­tions of strong union­ism in the U.S., could lose mil­lions of dol­lars through free rid­ers, untold thou­sands of mem­bers and a sig­nif­i­cant por­tion of their already dimin­ished insti­tu­tion­al power.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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