On March 29, 2016, the U.S. Supreme Court handed down a one-sentence decision in the most anticipated and important unionrelated case in decades, Friedrichs v. California Teachers Association.
Friedrichs was a direct challenge to longstanding precedent upholding the constitutionality of agency fee arrangements in the public sector. Abood v. Detroit Board of Education was a unanimous 1977 decision upholding the right of public sector unions to require payment of agency fees as a condition of employment.
Unions are legally obligated to represent all bargaining unit employees in negotiations and grievance proceedings, irrespective of whether or not those employees are members of the union. Agency fee provisions ensure that all employees, even those opting out of membership, must pay their fair share of the cost of negotiations and representation. Otherwise, unions would face a “free rider” problem where the union must represent all employees at the negotiating table and in grievances without getting any financial support from many of these employees.
The Friedrichs plaintiffs challenged the constitutionality of agency fee provisions under the First Amendment, claiming that being forced to pay a sum to CTA to represent them in bargaining as a condition of employment violates the free speech rights of bargaining unit employees. This argument relies on a fairly novel premise: that everything public sector unions do—including the negotiation of collective bargaining agreements—is political. According to this argument, any position a union takes in negotiations with a public employer involves a free-speech issue.
During oral argument, it became apparent to observers that five of the nine Supreme Court justices, including Justice Antonin Scalia, were ready to side with the plaintiffs. But Justice Scalia unexpectedly passed away before a decision was handed down. Shortly after his death, the Court issued an evenly divided four-to-four ruling affirming the lower court’s dismissal of the case. However, the decision is not precedential, and the constitutional question will probably not be settled until a replacement for Justice Scalia is appointed.
Unions dodged a bullet with the four-four tie vote in the Court. A ruling in favor of the plaintiffs would have invalidated agency fee provisions in thousands of collectively-bargained agreements, and would have effectively made the entire American public sector “right to work.” As we have seen in the private sector in states that have passed so-called “right to work” laws, this would have severely reduced unionization and diminished the rights of workers, as those policies are correlated with lower average wages and increased income inequality.
Over the past two decades, there has been a concerted effort to undermine the political clout of unions and the power of collective action through a twisting of First Amendment doctrine. While public sector unions avoided a potentially mortal blow in Friedrichs, other cases are currently making their way through lower courts that threaten the continuing viability of organized labor.
Friedrichs and other similar lawsuits are backed by antiunion special interest groups bent on destroying the ability of public sector unions to represent members and to promote the rights of workers through the political process. These groups advance creative legal arguments that have appealed to conservatives on the Supreme Court which, over the last several decades, has become increasingly hostile to unions, workers and collective action. The Supreme Court is currently evenly divided between justices sympathetic to unions and justices hostile to unions. The next President will appoint the tie-breaking ninth Justice. This makes your vote in November all the more important.
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