Wednesday, March 30, 2016

A Close Call for Unions and the Employees they Represent at the U.S. Supreme Court

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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