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Dues and Don’ts: Labor Eyes Supreme Court in Lead-up to de Facto National “Right-to-Work” Decision

Friedrichs herself.

Friedrichs herself.

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The Supreme Court will hear Friedrichs v. California Teachers Association in its next term, a case which could create a national “Right-to-Work” law for government employees.  The case revolves around the long-standing and as-of-yet legally protected practice of unions collecting “fair share” or “agency” fees from workers covered by the union’s collective bargaining efforts, even if those workers choose not to join the union and pay union dues.  According to a study from the Center for Economic and Policy Research (CEPR), workers in union shops earn nearly 12 percent more than workers in nonunion shops.  

Rudy Fichtenbaum, National President of the American Association of University Professors, explained the ramifications of the case to Inside Higher Ed:

“If the Supreme Court rules that ‘fair share’ violates the First Amendment rights of public employees, they would transform the entire public sector into right to work, more appropriately named ‘right to freeload,’

Friedrichs revolves around an “aggressive” reading of the first amendment that opponents of the case, a group which has theoretically included ultra-conservative justice Antonin Scalia, argue could have “absurd consequences” on the government’s ability to deal with its own employees.  This legal theory, as analyzed by Think Progress writer Ian Millhiser:

The legal theory animating Friedrichs is rooted in the First Amendment’s prohibitions on compelled speech. The plaintiffs in this case argue that there is “no constitutionally significant difference between compelling public employees to subsidize public sector unions’ collective-bargaining efforts, compelling employees to speak in favor of such efforts, or prohibiting employees from speaking about such efforts.” In essence, they claim, unions must engage in a form of speech when they bargain on behalf of workers, and some of those workers may disagree with that speech. So requiring workers to fund collective bargaining amounts to a kind of compelled speech.

The biggest problem with this argument is that it proves far too much. Indeed, if workplace bargaining is subject to full First Amendment scrutiny, it’s unclear how the government is supposed to manage its workers at all. Consider a hypothetical Justice Kagan raised in a similar case, “suppose an employee violates a government employer’s work rules by demanding, at various inopportune times and places, higher wages for both himself and his co-workers (which, of course, will drive up public spending). The government employer disciplines the employee, and he brings a First Amendment claim.” Disciplining employees who disrupt the workplace with inappropriately timed demands is a legitimate and necessary management practice, and yet, under the plaintiffs’ proposed rule in Friedrichs, such discipline most likely violates the First Amendment.

In a similar case, Harris v. Quinn, Justice Scalia questioned the first amendment-based legal theory and how it would affect managers’ ability to control day-to-day operations.  Scalia proposed the following hypothetical:

“Suppose you have a policeman, who is dissatisfied with his wages. So he makes an appointment with the police commissioner, and he goes in and grouses about his wages. He does this, you know, 10 or 11 times. And the commissioner finally is fed up and tells his secretary I don’t want to see this man again. Has he violated the Constitution?”

Unfortunately, for those hoping Scalia will vote in favor of unions in Friedrichs it should be noted that he voted against unions in Harris despite questioning the legal argument made against them.  

The fear for unions is that this de facto “Right-to-Work” ruling could create a freeloader problem that would slowly drain unions of the resources needed to properly bargain collectively for workers.  A vote against unions would reverse the precedent set by the 1977 Supreme Court in Abood v. Detroit Board of Ed, when a union’s right to charge fair share fees was established.   As Harvard Law School professor Benjamin Sachs told The Los Angeles Times: “This is a very significant case. It may well be life or death for the unions.  Unions are required to represent everyone. And this could mean nobody has an obligation to pay.”

Though the case will only affect public sector unions, a defeat could ultimately affect all union workers given their vast numbers and influence:

Public sector unions for workers like teachers, firemen, and police are among the strongest labor organizations in the country, having grown in recent decades even as membership in private-sector unions dwindled. Although the percentage of private sector employees who belong to unions is now a somewhat pitiful 6 percent — down from a historic high of nearly 40 percent in the early 1950s — the proportion of public sector workers who belong to unions is a robust 35.7 percent, according to 2014 statistics released by the Labor Department in January.

The argument can be made that a ruling against labor unionism in Friedrichs is a vote against states’ rights, a cornerstone of conservative ideology. But there is no guarantee the Justices will stand by this conservative ideal.  A different conservative ideal, at least in the modern sense, could win the day: crushing unions at all costs.


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