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.