How The Supreme Court Could Crush Public-Sector Unions

Union membership has been falling for years. It may drop even more after this case.
Pablo Martinez Monsivais/ASSOCIATED PRESS

WASHINGTON -- In what may turn out be a painful blow to labor unions, the Supreme Court will hear oral arguments Monday in a case that could make the entire U.S. public sector a right-to-work zone.

In the case, Friedrichs v. California Teachers Association, a group of public-school teachers in California want the court to rule that the First Amendment prohibits their union from requiring them to pay what are known as "fair-share fees." Such fees, which all workers in a bargaining unit are obligated to pay, help cover the costs of maintaining union contracts.

If the court rules against the union and workers are given the option of not paying those fees, public-sector unions stand to lose significant funding. The lawsuit, backed by a host of groups on the right, gives conservative justices -- especially Justice Samuel Alito -- the chance to overturn a four-decade-old precedent that essentially declared fair-share fees to be legal.

"What we're likely to see is a very definitive decision in Friedrichs," said Paul Secunda, a labor law professor at Marquette University Law School, who signed onto a brief in support of the union. "Either they let [public-sector unions] continue collecting fair-share fees, or in the alternative, Friedrichs makes basically the whole country, by constitutional fiat, public sector right-to-work. To me, that's bad. It makes it hard for public-sector unions to exist."

No one in the U.S. can be forced to join a labor union. The so-called closed shop has been illegal in this country for decades. But where state law allows it, workers can be required to pay fair-share fees to the union, even if they don't want to be full-fledged members. These fees can go toward the cost of bargaining contracts, but not toward political activities.

The fees address what unions like to call the "free rider" problem. In a unionized workplace, the union has to negotiate a contract for everyone in the bargaining unit, even if some people don't want to be members of the union. Since bargaining is expensive, unions argue it's only fair that everyone contribute to those costs. Hence fair-share fees.

If fair-share fees are found to violate the First Amendment, organized labor would run up against personal economics. Although some workers may leave the union on principle, others may stop supporting it financially because they know the union will bargain on their behalf anyway, for free. Workers bail on the union, and the union becomes less effective.

"It would weaken our ability at the bargaining table and on the job, [our ability] to advocate for us and for the community," said Stephen Mittons, president of the American Federation of State, County and Municipal Employees Local 2081, in Chicago. "By decreasing the numbers even slightly, it does add to our vulnerability."

So, if no one is forced to fund a union’s politics in the first place, then how is Friedrichs a First Amendment case centered around political speech? The conservative groups backing the lawsuit argue that, unlike in the private sector, public-sector unionism is political by nature, since unions are negotiating over wages paid expressly by taxpayers. Their argument hinges on that logic.

“That’s the heart of the case,” said F. Vincent Vernuccio, labor policy director at the Mackinac Center, a conservative think tank that often squares off against unions in labor litigation. “Everything public-sector unions do is inherently political. Whether it’s increased salary or benefits, that money has to come from taxpayers. And if it goes to salary and benefits, it has to come from somewhere else. That could be parks. That's a political issue."

In a recent op-ed in the Wall Street Journal, entitled "Why I'm Fighting My Teachers Union," Harlan Elrich, one of the teachers who brought the lawsuit, wrote that "the union's collective bargaining is every bit as political" as the union's politics. That political agenda, Elrich said, includes pushing for "ever-higher teacher salaries" for employees like himself, which he opposes. "That the union would presume to push, allegedly on my behalf, for higher salaries at the expense of smaller class sizes and avoiding teacher layoffs is preposterous," he wrote.

“"If they can weaken the bargaining power of the strongest unions in America, which are now in the public sector, it affects the salary and benefits of people who aren't even in unions."”

- Lily Eskelsen Garcia, National Education Association president

But the Supreme Court has recognized that the vitality of the union may trump any politics in collective bargaining -- and the political views that may be expressed in the process.

In 1977’s Abood v. Detroit Board of Education, which established the constitutional principle at stake in Friedrichs, Justice Potter Stewart acknowledged that compelling someone to support their bargaining units may affect their First Amendment rights. He listed several instances of employees disagreeing with the views of their union -- on abortion, race relations, even unionism itself. But ultimately, Stewart acknowledged that “such interference” with a person’s views is “constitutionally justified” so as to allow “the important contribution of the union shop to the system of labor relations established by Congress.”

That understanding remained largely in place until 2012, when Justice Alito -- joined by the court’s conservatives -- called Abood “something of an anomaly” in constitutional law, and noted that the “free-rider arguments” advanced by unions “are generally insufficient to overcome First Amendment objections” raised by employees who don’t want to contribute their fair share.

Two years later, Alito once again led the charge against Abood and called its reasoning “questionable,” and made clear that the decision “did not foresee the practical problems” of those who opted out of a public union -- namely, “the conceptual difficulty of distinguishing … between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.”

Alito suggested virtually everything that a public union does is inherently political because it involves the government, and there’s no meaningful way for an objecting employee to do anything about it. In the end, Alito left that old precedent in place, but virtually invited a future challenge to it. That challenge is Friedrichs.

It's possible the Friedrichs decision comes down to another conservative justice, Antonin Scalia, who may turn out to be an unlikely savior for unions. In past cases, Scalia has suggested that the government should have leeway with fair share provisions, since the law bounds unions to advocate for everyone in a bargaining unit. "In the context of bargaining, a union must seek to further the interests of its nonmembers," Scalia wrote in one opinion. "Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree."

The case may affect more than just public-sector unions. As private-sector union membership has tumbled in the U.S. in recent decades -- a mere 6.6 percent of such workers now belong to a union, compared with 35.7 percent in the public sector -- organized labor as a whole has counted on public-sector labor groups to maintain its ranks. If the effect of Friedrichs is to diminish some of the largest unions in the country, then all unions will be weaker politically.

Lily Eskelsen Garcia, president of the National Education Association, argued that a ruling striking down fair-share fees would depress bargaining power for workers of all kinds.

"If they can weaken the bargaining power of the strongest unions in America, which are now in the public sector, it affects the salary and benefits of people who aren't even in unions," said Eskelsen Garcia, whose union is the largest in the nation, with 3 million members. "We can see who's behind and funding the Friedrichs case. It's so clear these are folks that have never stood up for the rights of working people."

Unions have been girding for an unfavorable ruling. The National Education Association has thousands of contracts in states that include fair-share provisions. If fair-share fees are deemed a violation of the First Amendment, all of those contracts could be called into question.

Once workers are given the option to pay nothing to the union, the union will have to make a stronger case to workers for why they should choose to fund it. Some public-sector unions, such as the American Federation of Teachers and AFSCME, have launched internal organizing programs aimed at boosting union membership among workers already covered by contracts.

"It's made us think about getting back to basics and what makes a strong union. It's about the people and the relationships," said Lacy Barnes, a psychology instructor at Reedley College and a vice president of California Federation of Teachers. In the event of an unfavorable ruling, "We will have to do our work differently, there is no doubt about it. It will make it difficult at first, but we're like ants. We'll figure out how to go around or build it differently."

Even if unions avert a worst-case ruling in Friedrichs, they need to prepare for a world without fair-share fees. In recent years, a spate of states have passed right-to-work legislation, including traditionally union-strong states like Michigan and Wisconsin. Previously relegated to the South and West, right-to-work measures now exist in half of U.S. states.

Secunda, of Marquette, said a Friedrichs ruling striking down fair-share fees in the public sector would probably embolden right-to-work backers to push the legislation in even more states. A wakeup call for unions, he said, could be the "silver lining" to a loss in Friedrichs.

"It's incumbent on the unions to find alternative ways to organize workers into collective action," Secunda said. "These unions cannot continue to operate the way they have traditionally. Those days are numbered."

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