The New York Times headline said "Mandatory Union Fees Getting Hard Look by Supreme Court." The picture caption showed "Harlan Elrich, a high school mathematics teacher in California," who "is party to a lawsuit challenging mandatory union dues." Of course fees and dues are not the same thing, which is the crux of the latest challenge to public employee unions in the United States.
On Monday, the United States Supreme Court heard arguments in Friedrichs v. California Teachers Association. The Supreme Court ruled in favor of public employee labor unions in the 1977 Abood v. Detroit Board of Education case. Writing for the court majority at that time, Justice Potter Stewart argued that whatever potential interference there might be with First Amendment rights was more than justified by the right of workers to form associations and constitutionally permitted to prevent individuals from benefiting from union activity without paying their far share and to promote "labor peace."
But the current court membership is much more rightwing and anti-union. In a 2012 majority opinion, Associate Justice Samuel A. (for anti-union) Alito argued "Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights." That opinion set the stage for the newest freedom of speech challenge to public employee unions.
This is the same Court majority that declared class war on the American people in the 2010 Citizens United decision when it overruled election financing reform and decided that wealthy corporations were "people" and had the right to send unlimited amounts of money to shape public opinion and influence elections. This has permitted billionaires like the Koch brothers to promote anti-government politicians and campaigns.
During preliminary discussion on January 11, the closed-minded rightwing majority on the Supreme Court made its biases quite clear. Antonin Scalia, long the leader of the rightwing faction declared, "The problem is that everything that is bargained for with the government is within the political sphere." Anthony Kennedy, the potential swing vote on the divided court agreed with Scalia that collective bargaining is inherently political when the government is the employer because issues like merit pay, promotions and classroom size are subject to negotiation. If the rightwing Court majority's views prevail this will not be a hearing; it will be a legal lynching of the American labor movement.
With the decline in industrial work since the 1960s, public employee unions have become the backbone of the American labor movement. According to the federal Bureau of Labor Statistics, in 2014 "Public-sector workers had a union membership rate (35.7 percent), more than five times higher than that of private-sector workers (6.6 percent)." Among public sector workers teachers had the highest rate of union membership. An attack on teacher unions is an attack on the entire labor movement and the right of workers to organize collectively.
Capitalist businessmen and their right-wing politicians have been anti-union in the United States since the invention of industrial capitalism in the early 19th century. Over the years they have tried many methods to break the labor movement so they can maximize their profits at the expense of working people. This court case is only the latest assault on the right of workers to defend themselves collectively by organizing unions. In the late 19th and early twentieth century so called "Captains of Industry" like Andrew Carnegie (steel and coal), George Pullman (railroad), John D. Rockefeller (oil and coal), Henry Ford (auto) used their private police forces, the FBI, and even the United States military to break strikes, eliminate unions, spy on union leaders, and shoot down organizers. In the courts the Captains wanted anti-trust laws used to prevent workers from organizing and after World War II they had Congress make it harder to organize mass production unions by allowing states to pass "right-to-work" laws that had nothing to do with the right to work and everything to do with weakening unions.
In California the latest group of Captains are trying to eliminate teacher unions through the courts. In one case they charge that teacher tenure, seniority, and due process interfere with the education of minority students, the same minority students whose educations they help to underfund when they support campaigns against taxes and much needed revenue. The latest tactic coming out of the California court system is Friedrichs. In this case the Captains accuse labor unions of interfering with the "freedom of speech" of workers in a case that is now going to the United States Supreme Court where a right-wing majority may rewrite the law in an effort to kill labor unions.
The Friedrichs case is being promoted and paid for by an organization that calls itself The Center for Individual Rights (CIR) and the Christian Educators Association International that purports to represent Christians working in public schools who object to collective bargaining and union positions on issues. CIR is a leader in legal campaigns against affirmative action and the Voting Rights Act.
The Board of the CIR is largely made up of people with ties to hedge funds and rightwing foundations. Its funders include foundations with ties to the rightwing Koch brothers and Richard Mellon Scaife.
Harlan Elrich, pictured in the Times article, is one of ten California teachers who were recruited by rightwing businessmen and politicians in their campaign against teacher unions. Under California law, Mr. Elrich and his co-litigants are required to pay an agency or "fair-share service" fee to California teacher unions even if they decline union membership and do not pay union dues. Essentially the state of California, as does twenty other states, contracts with teacher unions to negotiate wage, benefit, and work condition contracts for teachers in the state. The fee pays for this service. Non-members are not required to support or pay for union lobbying or political efforts but the suit charges that all union activity is essentially political. About ten percent of California workers represented by the National Education Association are non-union members contractually required by the state to pay agency fees if they choose to be teachers or other school employees.
Obviously no one is forced to be employed by the State of California as a teacher. As far as I can tell Mr. Elrich, a math teacher, has never threatened to quit his job over First Amendment principles. The entire case is bogus. If Elrich wants to be a teacher but refuses to be connected to a union in anyway he always has the option of working at a private or religious school or a non-union charter. But those schools are non-union so salaries are lower, benefits are fewer, and job protection is weaker - union benefits Erlich and complainers want but do not want to pay for.
California Attorney General Kamala Harris sides with the teacher unions. According to Harris, Erich and the other plaintiffs suffered no First Amendment injuries if they disagree with positions taken by the union because "they remain free to communicate their views to school officials, their colleagues and the public at large."
During my work life I have been a member of a number of different private and public employee labor unions as I worked as a taxi cab driver, a truck driver, a bus driver, a teacher, and a college professor. I have not always agreed with the leadership of my union, but I have always agreed with and benefited from labor union membership. While I was a public school teacher the union benefited teachers and students by keeping down class size, fighting budget cuts and layoffs, and promoting diversity in hiring. I benefited personally when the union forced the city to recognize prior substitute service qualifying me for a better pension plan, from seniority rules that protected me from lay-offs, and from a grievance procedure that required one school administrator to make equitable out of class assignments.
We all benefit from a teachers union that fights for maintaining teaching as a profession rather than a temporary job. We also all benefit from public employee unions that oppose budget cuts and tax cuts for the wealthy, support active government involvement in regulating and promoting economic development, and fight for wages and benefits that support middle-class families. Teachers and public employee unions were an important part of the New Deal coalition of the 1930s that fought for Social Security, were active in the Civil Rights movement of the 1950s and 1960s, and teacher unions were especially active in recent campaigns against the Common Core aligned high stakes testing of students that have forced the federal government to revise some of its mandates. These are the reasons why public employee unions are under attack and must be defended.
The Supreme Court decision is expected in June but it looks like a crippling anti-union ruling is a forgone conclusion. I am not sure what can be done but I have a few strategies that should be explored. Unions can sign legal contracts with states and school districts that require all public employees to be union members or they can simply negotiate wage and benefit contracts that only apply to union members. But to establish the worth of working people and the value of labor unions we may need something as bold as a general strike. A more militant labor movement needs to revive the old Industrial Workers of the World slogan, "An Injury to One is an Injury to All."
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