How Friedrichs v. Calif. Teachers Association Could Actually Be a Boon for Unions

Shaun Richman December 11, 2015

Works Progress Administration workers march after losing their jobs in 1937. (Library of Congress)

As unions file their legal briefs in the epic Friedrichs vs. CTA anti-union Supreme Court case, one clever legal schol­ar argues that Friedrichs is an unex­pect­ed tool for labor.”

Uni­ver­si­ty of Chica­go Teach­ing Fel­low Heather Whitney’s forth­com­ing paper in the NYU Jour­nal of Law and Lib­er­ty makes a com­pelling case that an adverse deci­sion in Friedrichs would hand unions a first amend­ment argu­ment to refuse to rep­re­sent non-mem­bers. And, as I have argued, that is a roadmap to union com­pe­ti­tion at work­places, com­pet­ing demands on indi­vid­ual employ­ers and the end of con­trac­tu­al no-strike agree­ments.

Chaos, in oth­er words — and just the sort of chaos that this attack on unions deserves in response.

Friedrichs and labor’s response

The First Amend­ment is at the heart of the Friedrichs case. It is a right-wing argu­ment that pub­lic sec­tor employ­ers (in oth­er words, the gov­ern­ment) vio­late indi­vid­u­als’ First amend­ment rights by com­pelling employ­ees, through con­tracts nego­ti­at­ed with unions, to pay a fee to a union. Cur­rent­ly, unions that are cer­ti­fied to rep­re­sent a group of employ­ees in a bar­gain­ing unit are legal­ly com­pelled to rep­re­sent all of the employ­ees in that unit. That means not just bar­gain­ing on their behalf, but expend­ing sig­nif­i­cant resources on griev­ances, meet­ings, com­mu­ni­ca­tions and every­thing else that goes into run­ning a union.

But union mem­ber­ship, includ­ing the pay­ment of dues, is com­plete­ly vol­un­tary. That’s why unions nego­ti­ate agency fees into con­tracts. These fees are cal­cu­lat­ed through com­pli­cat­ed for­mu­las to only rep­re­sent the true cost of bar­gain­ing rep­re­sen­ta­tion. Agency fees do not pay for things like polit­i­cal activ­i­ty (unions usu­al­ly have sep­a­rate vol­un­tary polit­i­cal funds).

But the Friedrichs case argues that any inter­ac­tion that a union has with the gov­ern­ment, includ­ing bar­gain­ing, is inher­ent­ly polit­i­cal. Agency fees, there­fore, are com­pelled polit­i­cal activity.

This ridicu­lous argu­ment is only before the Supreme Court now because Jus­tice Samuel Ali­to insert­ed the issue into last year’s oth­er­wise unre­lat­ed Har­ris Vs. Quinn case. That case was only a par­tial defeat for unions, as Ali­to lacked the fifth vote to total­ly do away with agency fee in the pub­lic sec­tor. In his writ­ten deci­sion, Ali­to basi­cal­ly solicit­ed for some­one to bring a case with exact­ly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mount­ed an excel­lent legal case, backed up by a broad array of sup­port­ing briefs. A rul­ing against the unions would reverse a 37-year-old prece­dent. The Supreme Court is sup­posed to be guid­ed by the prin­ci­pal of stare deci­sis, which is essen­tial­ly to let long-set­tled prece­dent stand. And final­ly, the case will be decid­ed in the mid­dle of a pres­i­den­tial elec­tion that is already turn­ing on ques­tions of inequal­i­ty and work­ers rights. In his han­dling of the Oba­macare and gay mar­riage cas­es, Chief Jus­tice Roberts has shown that he does seem to care about his lega­cy. Would he sup­port such a naked­ly par­ti­san polit­i­cal move by his Court in this elec­tion cycle?

So, on the facts, on the law and on the pol­i­tics, unions real­ly ought to win this case. And, to be clear, agency fee and exclu­sive rep­re­sen­ta­tion are worth defend­ing. They cre­ate the con­di­tions for tremen­dous work­er pow­er at work­places that have both.

But if unions lose agency fee, then exclu­sive rep­re­sen­ta­tion no longer makes sense. This is not sim­ply because of the free-rid­er prob­lem that will drain union resources. It is because exclu­sive rep­re­sen­ta­tion is essen­tial to labor peace, and a Friedrichs rul­ing that guts union rights is the clear­est sig­nal that the bil­lion­aire class does not want — nor does it deserve — any kind of peace.

Labor’s First Amend­ment rights

If the Supreme Court rules that every inter­ac­tion that a union has with its gov­ern­ment employ­er is inher­ent­ly polit­i­cal, Heather Whit­ney argues in her arti­cle, then that would open the door to unions claim­ing their own First Amend­ment right — to choose who they rep­re­sent. In oth­er words, if agency fee is com­pelled speech, then the duty of exclu­sive rep­re­sen­ta­tion imposed on unions is also com­pelled speech.

Imag­ine a group of reg­is­tered nurs­es at a pub­lic hos­pi­tal who want to bar­gain for much larg­er rais­es than the rest of the mem­bers of the bar­gain­ing unit. Or imag­ine a group of young work­ers who want to bar­gain away pen­sions in exchange for larg­er salaries in the here and now. (For­get for the moment that both sce­nar­ios are just bad union­ism.) Once these con­tract demands are con­sid­ered by the Court to be polit­i­cal speech, then the fact that these work­ers are com­pelled by the gov­ern­ment to rep­re­sent work­ers who dis­agree with them, and who could out­vote them, is a vio­la­tion of their First Amend­ment rights!

I’ll also point out that unions’ rights to freely engage in actu­al polit­i­cal speech is already imped­ed by the duties of exclu­sive rep­re­sen­ta­tion. Unions are polit­i­cal­ly cau­tious and loathe to wade into non-eco­nom­ic con­tro­ver­sies for fear of alien­at­ing a seg­ment of their bar­gain­ing unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alien­at­ing bar­gain­ing unit mem­bers who were vet­er­ans or who had chil­dren in the mil­i­tary. Even in a so-called Right to Work” state, those peo­ple may not be mem­bers but they could still express their dis­plea­sure by vot­ing to decer­ti­fy the union. Does that not coerce unions into more lim­it­ed polit­i­cal activity?

This is not an abstrac­tion. The day after the Friedrichs deci­sion, if the Court kills agency fee by mak­ing all pub­lic sec­tor union work polit­i­cal,” does any­body doubt that the first time a non-mem­ber walks into a union office with a griev­ance that she will be told, Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revis­it exclu­sive rep­re­sen­ta­tion in the pub­lic sec­tor with­out agency fee.

Then, the only ques­tion would be whether the gov­ern­ment has a com­pelling inter­est in requir­ing unions to nego­ti­ate and grieve their non­mem­bers’ com­plaints with­out receiv­ing just com­pen­sa­tion.” And here schol­ar­ship would demon­strate that it has been the employ­ers’ pref­er­ence to deal with one exclu­sive rep­re­sen­ta­tive because it is eas­i­er for them, and, as Whit­ney writes, con­ve­nience is no response to whether exclu­sive rep­re­sen­ta­tion is prop­er­ly tai­lored to the government’s legit­i­mate interest.”

Break­ing the peace

So far, we’re just talk­ing about pub­lic sec­tor unions because hav­ing the gov­ern­ment as employ­er, Alito’s right-wing con­spir­a­tors argue, con­verts all of the activ­i­ties of those unions into inher­ent­ly polit­i­cal acts. But if this Friedrichs log­ic takes hold, then arguably hav­ing the gov­ern­ment — in the form of the Nation­al Labor Rela­tions Board — com­pel unions to rep­re­sent work­ers they would choose not to (and per­haps vice ver­sa) might become uncon­sti­tu­tion­al as well.

Cur­rent­ly, the NLRB will only cer­ti­fy unions as exclu­sive rep­re­sen­ta­tives of all of the work­ers in a bar­gain­ing unit, and only if the union can win a major­i­ty vote. This is often an insur­mount­able thresh­old for unions to reach in the face of intense employ­er oppo­si­tion. In his 2005 book The Blue Eagle at Work, law pro­fes­sor and labor law expert Charles J. Mor­ris doc­u­ment­ed that in its ear­ly his­to­ry the NLRB used to cer­ti­fy minor­i­ty unions as the bar­gain­ing agent for their mem­bers only. Mor­ris argued that this path­way was still tech­ni­cal­ly open to unions to gain a foothold at a work­place and legal­ly com­pel an employ­er to rec­og­nize a non-major­i­ty union.

The mod­ern NLRB has dodged efforts by unions to get an advi­so­ry rul­ing on Mor­ris’ the­o­ry. But if the Friedrichs log­ic holds, pri­vate sec­tor unions may have a First Amend­ment chal­lenge to the NLRB’s con­tin­ued refusal to grant cer­ti­fi­ca­tions for just the mem­bers they choose to represent.

And that, if you’ll fol­low me down this rab­bit hole, could spell the end of con­trac­tu­al no-strike claus­es. They would sim­ply be unen­force­able in an envi­ron­ment of com­pet­ing, non-exclu­sive, mem­bers-only unions. Work­ers would sim­ply drop their union mem­ber­ships to par­tic­i­pate in wild­cat job actions. Or else join new work­place orga­ni­za­tions that have not signed agree­ments com­mit­ting to labor peace.

Don’t get me wrong. I don’t have any fan­ta­sy of some huge wave of poten­tial strike actions that would occur tomor­row if only the enraged work­ing class would stop being repressed” by cur­rent union lead­er­ship and our cur­rent col­lec­tive bar­gain­ing agree­ments. But these no-strike claus­es go well beyond total shut­downs of pro­duc­tion to include all man­ner or slow-downs, work-to-rule and refusal to car­ry out selec­tive duties.

Any expe­ri­enced union rep read­ing this can recall at least one inci­dent of hav­ing to talk his mem­bers off a ledge — out of refus­ing a new duty or clock­ing out for lunch at the same time. These actions would be con­cert­ed pro­tect­ed activ­i­ty in a non-union work­place, but under a no-strike” con­tract could result in all par­tic­i­pants legal­ly get­ting fired. How the hell are we sup­posed to get work­ers who don’t enjoy union pro­tec­tion fired up about tak­ing action against their boss­es, when their union­ized peers can’t set any kind of exam­ple in terms of actu­al­ly enjoy­ing their sup­posed protections?

It’s fun­ny that the First Amend­ment could make this pos­si­ble. Union rights in this coun­try are not con­sti­tu­tion­al­ly root­ed in the First Amend­ment, but in Con­gress’ pow­er to reg­u­late inter­state com­merce — which is one of the rea­sons that our labor laws make no damn sense. So, yes, Friedrichs could be a use­ful tool for labor by final­ly con­nect­ing our work to our rights of free speech and free assembly.

But if you’ve fol­lowed me down this rab­bit hole and are start­ing to get a lit­tle excit­ed about a pos­si­ble post-Friedrichs world, let me give you an on the oth­er hand.” Heather Whitney’s First Amend­ment argu­ment for end­ing the duty of exclu­sive rep­re­sen­ta­tion would come before a Court that would not be weigh­ing it against a long-estab­lished prece­dent as Roberts’ Court is con­sid­er­ing Frei­drichs. It will be weigh­ing the argu­ment against a very recent Court decision.

If labor suc­cess­ful­ly caus­es enough chaos of the nature I’m dri­ving at — or even pos­es a cred­i­ble threat to do so — don’t be sur­prised if the Supremes try to put the lid back on Alito’s can of worms.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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