Which Side Are You On? Friedrichs Case Poised to Make Public Sector Unions Open Shop in All But Name

Adam Liptak in his story, "Supreme Court Seems Poised to Deal Unions a Major Setback," makes it sound as if open shop in everything but name is the likely outcome of the Supreme Court hearing the Friedrichs v. California Teachers Association case. At issue is whether union members who work in the public sector, a.k.a., government workers, have to pay "agency fees" or "representational fees" to their labor union or whether they can opt out entirely and choose instead to be what is called a "free rider," someone who enjoys all the benefits of union membership without paying any of its costs. (It has been a settled opinion for decades that public sector workers can opt out of paying that portion of their dues that goes directly to support political campaigns, but they cannot opt out of paying their union for representing them in collective bargaining, which is the lion's share of one's union dues.)

The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile on Monday. 

”The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” he said.

The court’s four liberal members were on the defensive, asking whether there was good reason to overturn a 1977 decision by the court that allowed the fees.

“You start overruling things,” Justice Stephen G. Breyer said. “What happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”

Justice Elena Kagan focused on the practical consequences of a decision in favor of the challengers. 

“This is a case in which there are tens of thousands of contracts with these provisions,” she said. “Those contracts affect millions of employees, maybe as high as 10 million employees.”

Michael A. Carvin, the lawyer for the teachers, emphasized what he said was the limited nature of the case. It was not, he said, an attack on the union’s exclusive representation of all workers. A decision in his clients’ favor, he added, would not affect private employers, who are not subject to the First Amendment. 

Justice Ruth Bader Ginsburg asked whether workers “who paid these fees against their will” were entitled to refunds. 

Mr. Carvin answered that “all we’re asking is for prospective relief.”

The fact that so much attention was devoted to the aftermath of a decision favoring the challengers suggested that at least some members of the court viewed it as a foregone conclusion.

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Limiting the power of public unions has long been a goal of conservative groups. Even before Monday’s argument, they had reason to be hopeful that their side would prevail in the case.

In 2014, the court stopped just short of overruling a foundational 1977 decision and declaring that government workers who choose not to join unions may not be forced to pay fees in lieu of dues.

In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court made a distinction between two kinds of compelled payments. Forcing nonmembers to pay for a union’s political activities violated the First Amendment, the court said. But it was constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”

Justice Kagan said the 2014 ruling, along with one from 2012, “admittedly expressed some frustration with Abood.” But that was not enough, she said, to justify overruling a 40-year-old precedent.

Mr. Carvin responded that the recent decisions had “undermined the doctrinal underpinnings of Abood.” He said the court had overruled important precedents in similar circumstances in 2010 in the Citizens United campaign finance decision.

And that is an appropriate analogy here -- Citizens United. Friedrichs will likely have an impact that is in the ballpark of the Supreme Court's post-2008-Obama-landslide decision to scrap existing campaign finance law. Fairly quickly, but certainly over time, the number of free riders will grow in public sector unions, diminishing their strength.

Conservatives like the Kochs -- who have provided some financial backing for the outfit, the Center for Individual Rights, that organized the Friedrichs lawsuit -- want to see public sector unions hamstrung because there is far greater union density in the public sector than in the private sector.

Public sector unions are the bedrock of unionism in the United States. Once they are bled out, the next step will to be go after after the large building trades internationals by repealing Davis-Bacon, the federal prevailing wage law. 

All this is happening against the backdrop of increasing income inequality and the post-Great Recession stagnation in wages. The last thing you want to do is weaken the unions. And that is exactly what the conservative majority on the Supreme Court has signaled it will do.

The upside to Friedrichs is that now more than ever it will force unions to engage in the kind of "Which Side are You On?" organizing that they have shied away from for generations. The problem, as can be seen by the number of large internationals, like SEIU, that have already endorsed Hillary, is that the leadership at the top remains conflicted, addicted as they are to big money and "the lesser of two evils," and that's why labor finds itself in its present diminished and endangered state. Hitching their wagon to Hillary, who appears to be headed for a defeat in Iowa, is just another tone deaf bad move.