December 31, 2015
By Steven Wishnia
A case coming before the Supreme Court on Monday, Jan. 11 could eliminate the union shop for public-sector workers.
Washington, DC -The case, Friedrichs v. California Teachers Association, seeks to overturn the “agency shop” rules the Court set in a 1977 decision. In that case, Abood v. Detroit Board of Education, it held that public employees could be required to pay representation fees in a union shop, as long as they were allowed to opt out of the portion of dues used for strictly political purposes. In other words, if a worker doesn’t want part of their paycheck going to support the Clinton-for-President campaign, they don’t have to join the SEIU or AFSCME, but as the union is legally required to represent all employees, they can’t get a free ride and not contribute to the costs of bargaining and grievances.
The plaintiffs in this case—Rebecca Friedrichs and nine other California teachers, plus Christian Educators Association International, a fundamentalist teachers group that denounces the National Education Association for its support of the “homosexual agenda”—argue that even paying representation fees violates their First Amendment rights. Backed by the Center for Individual Rights, a far-right legal group based in Washington, they contend that the fees “compel ideological association as a condition of employment”—because all public-sector collective bargaining is “inherently political.”
“In the course of collective bargaining, unions frequently take politically controversial positions that contradict the deeply held beliefs of some teachers,” the CIR said in its initial appeal. “For example, unions consistently ‘bargain’ for provisions requiring increased State spending, and against important educational reforms which some teachers believe would benefit teachers, students, and taxpayers. Even in purely material terms, ‘seniority’ protections and other employment protections advocated by unions benefit some teachers at the expense of other teachers who would fare better under an alternative system.”
Nonsense, teachers’ unions respond. That argument “rests on distortions of this Court’s agency shop jurisprudence from Abood through Harris v. Quinn, coupled with petitioners’ own legal theories that find no support in the Court’s First Amendment decisions,” the California Teachers Association and the NEA wrote in an April 2015 brief. “The complaint does not identify, even in general terms, the ‘public policy positions’ the unions pursue in collective bargaining which petitioners oppose.”
If private employers have rights to set terms and conditions of employment, so do public employers, and that can include a union shop, they argued. It’s absurd to claim that workers would have more of a voice in their pay and working conditions if they tried to negotiate as individuals, they added, and as all employees benefit from union representation, it’s fair for nonmembers to pay a fee to cover the costs involved. (For New Jersey teachers, that’s about 80% of dues.)
To bolster that last argument, the two unions cited an opinion by Justice Antonin Scalia from a 1991 case, Lehnert v. Ferris Faculty Association, that clarified which expenses qualified as representation and which were political. In it, Scalia said unions are different from other advocacy or trade groups because they have a “duty to deliver services.”
“What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests,” he wrote.
The suit’s supporters read like a roll call of anti-union politicians and policy groups: Illinois Gov. Bruce Rauner, the National Right to Work Legal Defense Foundation, the National Federation of Independent Business Small Business Legal Center, the Freedom Foundation in Washington and the Mackinac Center for Public Policy in Michigan, the Christian-right Rutherford Institute and the libertarian-conservative Cato Institute, public-sector union foe Daniel DiSalvo of the Manhattan Institute, the Pacific Legal Foundation in California and the Mountain States Legal Foundation in Colorado. Led by Michigan Attorney General Bill Schuette, 18 states signed an amicus brief supporting the suit.
Several unions representing public-sector workers have filed amicus briefs opposing the suit, including the AFL-CIO, the National Fraternal Order of Police, International Association of Fire Fighters, the American Federation of Teachers and American Association of University Professors, and the New York City Municipal Labor Committee, the umbrella group of city workers’ unions. Attorney generals in 21 states and Washington, D.C., signed onto a brief written by New York Attorney General Eric T. Schneiderman—including those in Illinois and New Mexico, whose governors oppose the union shop.
The Center for Individual Rights, whose work has included several cases challenging affirmative action and an attempt to get part of the Voting Rights Act of 1965 ruled unconstitutional, took the unusual step of asking the lower courts to rule against it. Knowing that it was trying to overturn an established precedent, its strategy was to get the case to the Supreme Court as quickly as possible, without the time or expense of a trial. A federal judge in Santa Ana, California, rejected the suit in December 2013. On Nov. 18, 2014, the Ninth Circuit Court of Appeals dismissed the appeal in two paragraphs, saying that “the questions presented in this appeal are so insubstantial as not to require further argument, because they are governed by controlling Supreme Court and Ninth Circuit precedent.”
For the Supreme Court to take a case, however, four justices must agree that the issue is worth considering. Some likely want to extend the reach of last June’s Harris v. Quinn decision, which held that home health-care aides didn’t have to pay representation fees because they were only “partial public employees,” paid by the state but hired by individuals. Justice Samuel Alito, who wrote the 5-4 majority opinion, called the Abood precedent “questionable on several grounds.” Because public employees’ wages, benefits, and pensions are paid for by the government, he argued, trying to increase them is inherently political activity.