Public-sector unions will live to fight another day after
the U.S. Supreme Court issued a 4-4 split decision in Friedrichs v. California Teachers Association on Tuesday. The
ruling—which comprised of a single sentence and has no precedential value
outside the Ninth Circuit—is most notable for what it did not do: that is,
provide a means to gut unions for both public- and private-sector employees
nationwide.
Friedrichs challenged
a long-standing rule, first applied to public-sector unions in the 1977 Supreme
Court case Abood v. Detroit Board of
Education, 431 U.S. 209, 235-36. In Abood,
the Court determined that public sector unions could require non-members to pay
an agency fee (also known as a “fair share fee”) to support the union’s collective-bargaining
and-grievance adjustment activities from which all employees would benefit
regardless of their union membership. Id.
at 225-31. The Court distinguished these expenditures from a union’s political
spending, for which a non-member could not be compelled to contribute to the
union under the First Amendment. Id.
at 232-36. The Abood decision in turn
relied on earlier decisions by the high court which affirmed the right of private-sector
unions to require all employees within a bargaining unit to contribute to non-political
union expenditures. See Machinists v.
Street, 367 U.S. 740 (1961); Railway
Employees’ Department v. Hanson, 351 U.S. 225 (1956).
As a practical matter, a union’s ability to ensure that all
employees pay their fair share of collective bargaining expenses is essential
to its survival. A union bargains on behalf of all employees, regardless of
whether those employees are members. Without the ability to require fair share
fees, a union faces a collective action problem: why would an individual
employee pay union dues when that employee can reap all of the benefits of the
union’s collective bargaining efforts for free?
The necessity of fair share fees to the survival of unions
has made them an enticing target for conservative efforts to attack unions and
worker protections generally. The Roberts Court (or rather, its five most
conservative members) signaled its eagerness to overturn the nearly forty-year
old Abood precedent in its 2014
decision Harris v. Quinn, in which
Justice Alito’s majority opinion criticized Abood
extensively and declined to extend its holding to home health care workers paid
by the state of Illinois. See Harris v.
Quinn, 134 S.Ct. 2618 (2014). After Harris,
the conservative advocacy group the Center for Individual Rights took the bait
and brought the Friedrichs case with
the goal of eliminating fair share fees from public-sector unions. Then, after
the oral argument in Friedrichs this
January, those same five justices from the Harris
majority appeared primed to overrule Abood,
notwithstanding the consequences for unions nationwide and the millions of workers
they represent.
Thus, little doubt exists that were Justice Scalia still on
the Court, Friedrichs would have crippled
public-sector unions and provided a blueprint to apply the same reasoning to
target private-sector unions as well. That decision would have paralyzed the
collective bargaining rights of teachers, firefighters, healthcare workers, and
countless other public employees in the 23 states that allow fair share fees.
Unions and workers had a good day on Tuesday,
but the fight continues. The Center for Individual Rights has already announced
its intent to file a petition for rehearing of Friedrichs in light of the split decision. The future of
public-sector employee unions thus rests in the hands of the Supreme Court’s
next member.
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